In Focus – The Rule Of Law

Newsletter | June 23, 2022

Rule Of Law

Continuing to educate our fellow Americans in the core ideas and founding principles of our great nation is central to the mission of America’s Future. We look back to different periods in our history, its documents, symbols, and mottos to remind us of where we are going as a nation. In this week’s newsletter, we focus in on the phrase “rule of law” as the Supreme Court of the United States rounds out June with important decisions that will shape our lives while voices grow stronger questioning whether fair and equal justice for all exists or whether it is merely an aspiration.

Our rule of law means that all citizens and institutions are subject to the same laws uniformly applied, as opposed to the notion that some, especially from a ruling regime, are above it. The idea of “rule of law” is a fundamental part of who we are as a nation. We have our Founding Fathers to thank for it and a history of nearly 250 years to test its veracity.

In writing the Constitution, our Founders were establishing the supreme law for a free people created in the image of God. Therefore, they were all created equal. Consequently, they must all be subject to the same laws and treated equally by those charged with enforcing and administering justice.

This governing principle of the new United States was a cornerstone pillar of America’s strength and exceptionalism and distinct from that of the British tyranny they had just overthrown. The former Colonists no longer subscribed to the “divine right of kings,” a doctrine presuming a monarch could not be held accountable to any earthly authority. Indeed, these new Americans had themselves held the king accountable by routing his forces in the field and forcing them from the land.

To guarantee that all men would be treated equally under the rule of law, Article III of the Constitution created an independent judiciary. It states: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

And these “lower” courts, as Alexander Hamilton wrote, “were designed to be an intermediate body between the people and their legislature” in order to ensure that the people’s representatives acted only within the authority given to Congress under the Constitution.

The job of the Courts is to uphold the Constitution and, in doing so, interpret federal and state laws passed by Congress and state legislatures, striking down any law that conflicts with the Constitution. And, as Hamilton further stated, “the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

In light of recent laws passed and actions taken by our elected agents in the executive and legislative branch that many argue violate the Constitution, it is vital that the courts dutifully carry out their responsibility to uphold the law of the land, one law for one people.

America’s Future believes that it is our faith that the rule of law will continue to guide our policies that keeps America united and at peace. And yet there is growing evidence that some seek to privilege their own interests by subjecting political opponents to deprivations and punishments under laws that they, themselves, do not abide by. Being a free people, the efforts to undermine the principle of “rule of law” shall not divide us and break our peace. We join all Americans in prayer that the wisdom of our Founders may guide the wayward.

Please take our Reader’s Survey to share your insights and thoughts about the concept of the rule of law in America today. We are grateful to the thousands of people who respond to our weekly surveys and appreciate your time. Please join our Executive Director, Mary O’Neill, every Monday at 9 a.m. on America’s Mondays With Mary to hear some of our readers’ responses and other news about America’s Future activities. Thank you!

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The Rise of Homeschools As Parents Take Charge
America’s Future Provides Teaching Materials

In April, readers will recall an article published in our newsletter explaining parental protections against unconstitutional governmental intrusion respecting the fundamental rights of parents. The article explained, among other things, that parents are entitled to “determine the care, custody, education and wellbeing of children they rear” and absent extraordinary circumstances governmental authority must yield to parents’ decisions regarding raising their children as they see fit.

In early 2020, the world confronted the novel COVID-19 pandemic. To prevent infection and spread of the virus, emergency orders were issued by federal, state, and local governments forcing school-aged children to stay home and learn remotely. Parents were also subject to stay-at-home orders and it was during this time parents ensured their children abided by a school schedule and followed along with the subject matters being taught. As parents became uniquely situated to observe and examine lesson plans being delivered to their children by school systems across the country, it became evident that parents didn’t like what they discovered.

As a result, parents began taking charge of their children’s education and the percentage of homeschooled children is on the rise, specifically in the numbers of homeschooled children when comparing pre-pandemic to post-pandemic. Data collected by the Census Bureau reveals that the number of U.S. households that are homeschooling at the start of the 2020-2021 school year doubled from the school year prior.

The report shines a light on the grave concerns families and parents have with regard to the education system in this country, stating “[f]rom the much-discussed ‘pandemic pods,’ (small groups of students gathering outside a formal school setting for in-person instruction) to a reported influx of parent inquiries about stand-alone virtual schools, private schools and homeschooling organizations, American parents are increasingly open to options beyond the neighborhood school.”

To support parents who are homeschooling their children and are searching for teaching tools and materials, America’s Future has published the first in a series of educational e-books that are free and available on our website. The first book is entitled, “Exploring America’s Founding Documents,” describing the history and importance of the Declaration of Independence, the U.S. Constitution and the Bill of Rights – the first 10 amendments. America’s Future is pleased to provide this original material to families choosing to homeschool their children. Other digital materials are in the planning stages with print versions to be available by September.

America’s Future Files Amicus Brief with SCOTUS Supporting Relief from CMS Vaccine Mandate

On Tuesday, June 22, 2022, America’s Future along with Virginia Delegate Dave LaRock and eight other amici organizations, submitted an Amicus Brief to the Supreme Court of the United States (SCOTUS) supporting the relief requested by the Petitioners in Missouri v Biden (Dkt. No. 21-1463). Essentially, the Petitioners seek relief from enforcement of COVID-19 vaccine mandates created by the Centers for Medicare & Medicaid Services (CMS), announced on November 5, 2021, as an “immediately effective” administrative regulation. This case comes before the high Court following an Eighth Circuit Court of Appeals order vacating (and remanding) a preliminary injunction granted by the lower court in favor of the Petitioners – the states of Missouri, Nebraska, Alaska, Arkansas, Iowa, Kansas, New Hampshire, North Dakota, South Dakota, and Wyoming.

The mandate in question compels most Medicare-and Medicaid-certified healthcare providers (e.g., hospitals, clinics, critical access hospitals, inpatient rehab facilities, long term care facilities, physician offices, outpatient surgery centers, etc.) to establish and implement procedures and documentation protocols demonstrating all staff members have submitted to the administration of a COVID-19 vaccine or are exempt based on religious or medical reasons.

As a result of this mandate, all non-exempt staff members of these healthcare facilities who refuse to be vaccinated are constructively discharged from employment, although CMS refers to the constructive firing as “[a choice] to leave their jobs.” At a time when healthcare workers are desperately needed, particularly in rural communities, this Mandate inevitably leads to a reduction in our nation’s healthcare workforce. Surprisingly, CMS justifies this new regulatory vaccination requirement as a mechanism to address “staffing shortages” stating, “the urgent need to address COVID-related staffing shortages that are disrupting patient access to care, provides strong justification as to the need to issue this IFC requiring staff vaccination for most provider and supplier types over which we have authority.”

To carry out the mandate, CMS instructed that noncompliant providers are “subject to enforcement remedies imposed by CMS depending on the level of noncompliance and the remedies available under federal law (for example, civil money penalties, denial of payment for new admissions, or termination of the Medicare/Medicaid provider agreement).”

The Petitioners argue, and we agree, the Mandate (1) “violates the Administrative Procedure Act (APA) because it is arbitrary, capricious, and unlawful;” (2) “is unconstitutional under the Spending Clause, the anti-commandeering doctrine, and the Tenth Amendment;” (3) “the Mandate violates the APA because it was issued without notice and comment,” and (4) “the Mandate exceeds CMS’s statutory authority.”

Turning to the government’s argument in this case, the Congressional Research Service summarized it as follows: “Congress may offer federal funds to nonfederal entities and prescribe the terms and conditions under which the funds are accepted and used” and “As the federal government increased its role in public health, Congress [also] relied on the Commerce Clause to pass more comprehensive national health regulations.” As our brief explains, cobbling together ill-conceived and perhaps politically-motivated interpretations of constitutional authority to fashion “a giant ‘catchall’ [general welfare] exception [swallows] the rule that the national government was intended to be one of enumerated and limited powers.”

Notably, on January 13, 2022, the SCOTUS issued an emergency stay, pausing the government’s vaccine-or-test administrative regulation issued by the Occupational Safety and Health Administration (OSHA) for employers with 100 or more employees in National Federation of Independent Business (NFIB) v OSHA 595 U.S. (2022). America’s Future joined 11 organizations in an Amicus Brief arguing the SCOTUS should grant NFIB’s Emergency Application for Stay of Administrative Action filed against OSHA, which it did.

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Supreme Court of The United States Updates – Week of June 20 – 23, 2022

To keep our readers updated about the Supreme Court of the United States (SCOTUS) rulings since the date of last week’s newsletter, please find below the Court’s latest decisions considered the “law of the land” through today (June 24, 2022). These rulings are now binding on all other courts and in all states. America’s Future will continue to report on the Court’s decisions in future newsletters. For information about SCOTUS, visit the Court’s website at https://www.supremecourt.gov.


Carson v Makin
(No. 20-1088 – Chief Justice Roberts authored the opinion)

ISSUE: Whether “Maine’s ‘nonsectarian’ requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause.”
RULING: Yes. “Maine’s ‘nonsectarian’ requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause”– The decision of the First Circuit Court of Appeals is reversed and remanded.
LINK TO OPINION: https://www.supremecourt.gov/opinions/21pdf/20-1088_dbfi.pdf


Shoop, Warden v Twyford
(No. 21-511 – Chief Justice Roberts authored the opinion)

ISSUE: “Whether the District Court’s order is ‘necessary or appropriate in aid of’ the federal court’s resolution of the prisoner’s habeas case.”
Here, pursuant to the All Writs Act [i.e.28 U. S. C. §1651(a)], which “authorizes federal courts to ‘issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law,’” the Court reviewed a post-conviction/post-sentencing District Court order compelling the state of Ohio to transport petitioner-prisoner from prison to a medical facility, without due consideration to the usefulness of the order to the petitioner-prisoner’s habeas case, for diagnostic testing petitioner-prisoner claimed would show evidence of a brain injury he sustained as a teenager without evincing the usefulness of the order.
RULING: “A transportation order that allows a prisoner to search for new evidence is not “necessary or appropriate in aid of” a federal court’s adjudication of a habeas corpus action when the prisoner has not shown that the desired evidence would be admissible in connection with a particular claim for relief.” – The decision of the Sixth Circuit Court of Appeals is reversed and remanded.
LINK TO OPINION: https://www.supremecourt.gov/opinions/21pdf/21-511_o75p.pdf


U.S. v Washington
(No. 21-404 – Justice Breyer authored the opinion)

ISSUE: Whether “[the state of] Washington’s [workers’ compensation] law facially discriminates against the Federal Government and its contractors. Because [the law] does not clearly and unambiguously waive the Federal Government’s immunity from discriminatory state laws, Washington’s law is unconstitutional under the Supremacy Clause.”
RULING: Yes. “Washington’s law facially discriminates against the Federal Government and its contractors. Because §3172 does not clearly and unambiguously waive the Federal Government’s immunity from discriminatory state laws, Washington’s law is unconstitutional under the Supremacy Clause.” The decision of the Ninth Circuit Court of Appeals is reversed and remanded.
LINK TO OPINION: https://www.supremecourt.gov/opinions/21pdf/21-404_i5ea.pdf


U.S. v Taylor
(No. 20-1459 – Justice Gorsuch authored the opinion)

ISSUE: Whether an attempted Hobbs Act robbery “qualifies as a ‘crime of violence’ under §924(c)(3)(A) [if] no element of the offense requires proof that the defendant used, attempted to use, or threatened to use force.”
RULING: No. An attempted Hobbs Act robbery “does not qualify as a ‘crime of violence’ under §924(c)(3)(A) because no element of the offense requires proof that the defendant used, attempted to use, or threatened to use force.”
LINK TO OPINION: https://www.supremecourt.gov/opinions/21pdf/20-1459_n7ip.pdf


Marietta Memorial Hospital Employee Health Benefit Plan v Davita, Inc.
(No. 20-1641 – Justice Kavanaugh authored the opinion)

ISSUE: “Whether a group health plan that provides limited benefits for outpatient dialysis—but does so uniformly for all plan participants—violates the Medicare Secondary Payer statute.”
RULING: No. A group health plan that provides limited benefits for outpatient dialysis does not violate the Medicare Secondary Payer statute “MSP” as long as the group health plan does not “take into account that an individual is entitled to eligible” for Medicare due to end-stage renal disease (“ESRD”) and does not differentiate health care benefits it provides between individuals having ESRD and those who do not have ESRD. – The decision of the Sixth Circuit Court of Appeals is reversed and remanded.
LINK TO OPINION: https://www.supremecourt.gov/opinions/21pdf/20-1641_3314.pdf

 

New York State Rifle & Pistol Assn. v Bruen, Superintendent of New York State Police (No. 20-843 – Justice Thomas authored the opinion)
ISSUE: Whether New York’s “proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.”
RULING: Yes. “New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.” – The decision of the Second Circuit Court of Appeals is reversed and remanded.
LINK TO OPINION: https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf


Vega v Tekoh (No. 20-499 – Justice Thomas authored the opinion)
ISSUE: Whether a violation of the Miranda rules “provides a basis for a §1983 claim [for money damages against the officer who obtained the statement]”
RULING: No. “A violation of the Miranda rules does not provide a basis for a §1983 claim [for money damages against the officer who obtained the statement].” – The decision of the Ninth Circuit Court of Appeals is reversed and remanded.
LINK TO OPINION: https://www.supremecourt.gov/opinions/21pdf/21-499_gfbh.pdf


Nance v Ward, Commissioner, Georgia Department of Corrections (No. 20-439 – Justice Kagan authored the opinion)
ISSUE: Whether 42 U. S. C. §1983 is “an appropriate vehicle for a prisoner’s method-of-execution claim where…the prisoner proposes an alternative method not authorized by the State’s death-penalty statute”
RULING: Yes. 42 U. S. C. §1983 is “an appropriate vehicle for a prisoner’s method-of-execution claim where…the prisoner proposes an alternative method not authorized by the State’s death-penalty statute” – The decision of the Eleventh Circuit Court of Appeals is reversed and remanded.
LINK TO OPINION: https://www.supremecourt.gov/opinions/21pdf/21-439_bp7c.pdf


Berger v North Carolina State Conference of the NAACP (No. 21-248 – Justice Gorsuch authored the opinion)
ISSUE: Whether “legislative leaders are entitled to intervene in a litigation regarding a legal challenge against a voter-ID law because without their participation, important state interests would not be adequately represented.”
RULING: Yes. Based upon the specific fact-pattern of this case, the legislative leaders petitioning the SCOTUS for relief are entitled to intervene in litigation to protect state interests.– The decision of the Fourth Circuit Court of Appeals is reversed.
LINK TO OPINION: https://www.supremecourt.gov/opinions/21pdf/21-248_4fc5.pdf

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Reminders & Updates

RAISE THE FLAG. SAY THE PLEDGE: Because every day is “flag day” in the USA, America’s Future teamed up with Colonial Flag to offer an assortment of discount-priced flags along with a beautifully-designed Pledge of Allegiance insert and a free pocket-size U.S. Constitution signed by our Board Chair, General Michael Flynn. Click here and choose the perfect flag for your home and business today!

MARK YOUR CALENDARS: The next “Champion Conversation With General Michael Flynn” for our Champion For America members community is scheduled for July 25, 2022 at 1 p.m. (ET). Please mark your calendars to join in the conversation!

STAY CONNECTED: You’ll find America’s Future on your favorite social media platforms. Thank you for remembering to follow us and please share our posts.

VOTE! Primary elections are happening across the country. Make sure you exercise your right to vote. Encourage your family members and friends to do the same.

AMERICA’S MONDAYS WITH MARY: Tune in every Monday morning at 9 a.m. (ET) to watch our Executive Director Mary O’Neill report out on the comments and insights submitted via our weekly Reader Survey and listen to updates about America’s Future activities and what’s ahead at America’s Mondays With Mary.

STAY CONNECTED: You’ll find America’s Future on your favorite social media platforms. Thank you for remembering to follow us and please share our posts.

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