Wednesday, June 9, 2021
It's Wednesday, June 9, 2021.
I'm Albert Mohler, and this is The Briefing, a daily analysis of news and events from a Christian worldview.
Did the Supreme Court Rule on Immigration on Monday? Actually, No. So . . . What Did They Decide, Unanimously?
Some form of American civics or at least an understanding of how the government is supposed to work, all this is supposed to be taught in the schools at an appropriate grade level. But the fact is that many Americans, even adult Americans, have only a rather confused understanding of how the federal government works. Now, just considering this, I want us to take a look at two actions undertaken by the Supreme Court of the United States this week. Both of them are fairly minor stories as you're looking at the scale of the day's news, for example, the New York Times print edition put both of these stories under the fold on page A16. That's telling you they don't see this as really big news, but big enough to make the front section of the New York Times. The headlines are these "Unanimous Ruling Effects Protected Status Immigrants." That's the first story. Second, "Supreme Court Will Not Hear Case on Military Draft."
Now, just an understanding how the government works, there are huge worldview implications here, but just understanding how government works, how our government works, this is a matter for intelligent Christian thinking. We need to understand that when we hear many statements made, especially about the Supreme Court or about a Supreme Court ruling or decision, we're often looking at something that actually is a misrepresentation. Let's look at these two stories, and let's look at a couple of others from the past. This will be worth our time.
The first of the articles that appeared in yesterday's New York Times by Adam Liptak includes the headline about the unanimous ruling of the court affecting protected status immigrants. Now, when you consider the issue of immigration in the United States, that is by the nature of the controversy a front page story. How does it end up yesterday on page A16? The answer to that is, first of all, that this wasn't a very widely applicable decision. But the second reason is you had a Supreme Court they handed down a unanimous decision on an extremely controversial issue. And the New York Times, to its credit, said that in this unanimous ruling, the Supreme Court decided in a way that will affect protected status immigrants.
So what are we talking about here? The issue at the center of the story is the TPS Program of the federal government. That is, temporary protected status. This is not a part of the normal immigration policy of the United States government. It is a special case category. The special case is where you have the citizens of another country who are suffering an unexpected, undue particular hardship, and thus will be allowed temporarily into the United States under a protected status. They are not able to apply for legal immigration, whether they are here legally or illegally. So long as the temporary applies to this temporary protected status, they can stay in the United States. An example of this is what had taken place in El Salvador after an earthquake devastated much of the country in 2001. Because of the circumstances of the devastating earthquake, the United States allowed a certain number of people to come from El Salvador fleeing the damage and devastation of the earthquake, but they were not immigrating to the United States. They were coming here temporarily under this protective status in order to have their immediate needs met, in order to have a safe place after the devastation.
But you can imagine how this begins to later develop. You had some of the people who came over in 2001 under the temporary protected status, TPS, and then they appealed to apply for legal immigration. The United States government said, "No, that is a direct violation of the law that was enacted by Congress and signed by the president that says that the only way this TPS program actually works is if the 'T' is true, that it is a temporary program." But you had some of the people who had come over and then been denied the right to apply for legal immigration to have a new status. They challenged the U.S. law, and they went to the federal courts and the case made its way all the way to the Supreme Court of the United States. The Supreme Court ruled unanimously on Monday that the federal courts had ruled wrongly that the U.S. law was unconstitutional or that the federal government was acting in violation of the law.
To the contrary, all of the justices of the Supreme Court ruled together that the TPS Program is indeed in itself, the law of the land and that the challenge to the law made by these particular plaintiffs would not stand. Now, the reason why this is so important in terms of American constitutional law is that you will have many people say that on Monday of this week, the Supreme Court of the United States made a ruling on immigration. Is that right or wrong? It's actually not right. It does affect immigration, but it is not the Supreme Court deciding the issue of immigration. Here's the first clue, it was a unanimous decision. Just consider the ideological polarity on the United States Supreme Court. Just consider the ideological polarity of the issue of immigration amongst the American people. Just consider the United States Congress and the polarization on immigration in the Congress. How do you then turn to a court that by most reckonings has about six conservatives and three very clearly liberal justices, how do they end up unanimous on a decision? It is because immigration was not really the issue. The law was the issue.
The Supreme Court of the United States, the highest court in the land, routinely decides cases on two bases. Number one, is an action legal? That is, is it compatible with, congruent with the law of the United States? The second basis is the constitution itself, is a law constitutional? That's a secondary question. The first is whether or not something's legal according to the law. The second level question is, is the law compatible with the constitution? Those are two different questions. May both apply in any particular case. The second issue in constitutionality is whether or not an action primarily by the government itself is within the bounds of the constitution.
So when you understand how the Supreme Court works, you understand that even in this very polarized age, an extraordinary number of decisions handed down by the Supreme Court are unanimous rulings, nine to zero. Now, that tells you that the Supreme Court is not ruling on that issue, they are instead ruling on the legality or constitutionality of the question. As the case was presented to the Supreme Court on which it made its ruling on Monday, a case that is known as Sanchez versus Mayorkas, the question is, does the United States government rightly act in congruence with the law rightly adopted by Congress, signed by the president, and thus the law of the land? And the United States Supreme Court said unanimously, "Yes, that is the right function of the government. Those who are making the appeal against the government fail in making the case that the government is not applying the law. No," the unanimous court said, "the government is here actually applying the law. The government is in the right."
This does indeed affect immigration. That's where the headline in the New York Times was right. But when you hear many people in the mainstream media talk about the decision that was handed down on Monday, you hear the language that the Supreme Court has ruled on immigration. It didn't, it ruled on the legality of a case that was being made. A similar kind of confusion as attached to many of the decisions or rulings by the Supreme Court over the course of the last several years. I think of one in particular from the year 2018. You hear some people say that the Supreme Court legalized sports betting and all 50 States in that 2018 decision. True or false? Actually, false. Was that the result? Maybe. Was that what the court ruled? No.
What the court ruled in this case was the constitutionality of Congress adopting a law that allowed four states to be legally involved in sports betting, but not the other 46 states. That was the case that came before the court. The court didn't rule one way or the other on sports betting. That was never the question. The question, the constitutional question that came before the court was whether or not Congress had the right to allow four states to be involved in an economic activity it would then forbid in 46 other states.
And once again, you had a very clear ruling from the court, not unanimous in that case, but very clear. Even in that case, the most important dissenting opinion was the argument that the court should allow Congress to fix the problem. But the majority of the court said, "Congress has had of time to fix this problem. If they're not going to fix it, we will. Because the constitution is at stake and ruling on the constitutionality of such legislation is indeed the function of the Supreme Court."
So that raises another question. Let's say that you were on the losing side of the court decision that was handed down that will affect immigration. The court handed down the decision on Monday, let's say you want to effect change, how do you do it? Well, it is not by going to the federal courts. What the Supreme Court of the United States said is that if you want change on this issue, you're going to have to get Congress to change the law. You're going to have to get a president to sign a new law adopted by Congress. Politically, by the way, that's not very likely, not under the current circumstances. But the point is we have a separation of powers in this country between the executive, the legislative, and the judicial because of the Christian worldview that understands the sinfulness of humanity and warns against the aggregation of too much power in one person or in one branch.
Sometimes the Big Story Is What Didn’t Happen: Why Did the Supreme Court Decline to Take a Case Challenging the Constitutionality of the Military Draft Law?
But I said there were two headlines, and I gave you a hint of what the other one would be. It is about the military draft. In this case, the big story of what happened this week is what didn't happen because the Supreme Court decided not to take this case. For the most part, the Supreme Court has the right to decide which cases it will hear. The Supreme Court is indeed an appellate court. That's its main function. It takes cases on appeal. It can't possibly take even a large fraction of the appeals that come to it. It has to decide which are the most important, not only in the urgency of the issue, but the constitutional issues that are at stake.
The headline in this case points to the fact that the Supreme Court this week announced that it would not take a case that challenges the constitutionality of the military draft law in the United States because only males, only young men, when they turn 18, are legally required to register with selective service. Young women are not. This goes back to the 1970s and the emergence of an all-volunteer military in the United States. The draft conscription of young men directly into the armed forces came to an end. Even about the time the Vietnam War was coming to an end, the United States shifted to an all-volunteer military. And yet in order to assure military preparedness, young men were still required to register with selective service in the case a future draft would be necessary. No draft has been necessary by government action since the 1970s.
But you can see where this is going. The law back in the 1970s, before the full impact of second wave feminism, not to mention before the advent of new laws and policies that allow women to serve in combat in the American military, it would have made no sense then to require young women to register with selective service because there was no draft of young women ever. But you're looking at a very different situation in this country. We are on the other side of a massive moral and gender revolution. I've spoken a great deal about the fact that I do not believe it is in the rightful interest of a country to require young women to go into combat or routinely, in any sense, to put women in harms way in combat. I don't believe that well served the military. It is a result of social engineering, plain and simple.
But nonetheless, the law of the United States right now says that men and women are equal when it comes to combat deployment. Again, we're not debating that issue right now. The Supreme Court was not facing the issue of whether or not women should be in combat. That's not the question. The question is, is it unconstitutional for the law of the United States to require young men but not young women to register with selective service? The Supreme Court, in the ruling that was announced, didn't hand down a decision. A decision comes after the court says, "Yes, we're going to take the case," after the arguments are heard for the case, after the Supreme Court justices privately hold their conference, and only when the court is ready to announce its decision.
Now, the decisions are announced in the term in which the oral arguments are held, which is why right now as the Supreme Court is ending its term this month, we can expect an avalanche of decisions to come. But in this case, the news is that the Supreme Court declined to take the case. Why did the Supreme Court decline to take this case? Did it find it uninteresting? Are the issues un-urgent? Are the constitutional questions not so pressing? Actually, the Supreme Court usually doesn't say why it doesn't take a case.
But sometimes when the court doesn't say why it doesn't take a case, at least some justices say that they either agreed or disagreed with the issue, in this case, three justices who evidently agreed with the court not taking the case. In this case, it would be Justice Sonia Sotomayor, Justice Stephen G. Breyer and Justice Brett Kavanaugh. They released a statement saying that the reason they did not want the court to take the case right now is because they want to give Congress time to work out the issue. The three justices said together, "It remains to be seen, of course, whether Congress will end gender-based registration under the Military Selective Service Act." In other words, the Supreme Court, or at least those three justices said, "Congress, you've got a little time, we won't even tell you how much time, to decide if you're going to fix this legislatively. If you don't, eventually, we will have to take the case. But you do have some time, use the time wisely."
A Political Farce in Congress Over Abortion Law: The Inevitable Result of the Supreme Court’s Disastrous Roe v. Wade Decision
But next we're going to shift to how moral change, legislative and political change, in this country happens when the Supreme Court does not stay within its lane, when it does not stay within its assignment. We can look to many points in American history where the Supreme Court is itself in grotesque error, because it decided to turn itself, effectively, into a legislature, which according to the constitution, it emphatically is not. There is no greater illustration of this in the history of the United States than the 1973 Roe V. Wade decision. The issue came before the Supreme Court as to whether or not there was a constitutional right for a woman to have an abortion.
In this case, the Supreme Court of the United States irrigated unto itself, under a very liberal majority, to decide that it would invent a right of a woman to have an abortion upon demand in the United States. It invented the argument largely from the air. It went back to the 1960s in terms of the legal arguments. The court had invented a so-called right to privacy. And by the time you get to 1973, they extended that right to privacy, which is not in the constitution. Certainly, the constitution says absolutely nothing about abortion, but it does speak about every single individual having a right to life and liberty. But the Supreme Court, by a 7-2 majority in 1973, turned itself into a legislature, which it again has no constitutional authority to do.
But that means that someone does have a constitutional authority to legislate something like abortion. And in the United States, at the federal level, that would be the United States Congress. But now we need to back up for a moment. Until Roe V. Wade in 1973, the states had the right to develop and adopt their own laws concerning abortion. That went back to an era in which federalism, our constitutional order, was more respected and states were understood to have the sole authority to decide these issues. The Roe V. Wade decision is problematic, first of all, of course, because it has led to the murder of millions of unborn children. But secondly, it was also a disaster because the court aggregated its own constitutional boundaries in even addressing the issue as it did. Thirdly, of course, it created judicial malfeasance by inventing this charade of three different trimesters of pregnancy and variable understandings of the state's right to intervene. It is a constitutional, moral, and legal disaster.
But here's something else to consider. When it comes to a law that would authorize abortion throughout the United States, you need to know this, there is no such law. There's a Supreme Court ruling, but there is no such law. Not just in 1973 there wasn't such a law, in 2021 there is not such a law. But yesterday, forbes.com announced that Democrats in Congress have introduced a bill this week that would, indeed, legislatively authorize abortion under federal law. And that's ahead of what we now know is going to be a big abortion case coming to the Supreme Court next year. The case is an appeal concerning a law restricting abortion in the state of Mississippi. It is a clear opportunity for the court to reverse the Roe V. Wade decision.
What you have here in this story that appeared yesterday in Forbes is the fact that some Democrats in Congress have decided to go ahead and try to legislate the issue of abortion so that there would be a federal law guaranteeing a woman's so-called right to an abortion if the Supreme Court were to reverse the Roe decision. But here's what you need to note, it would have been politically impossible, say, in the early 1970s for the United States Congress to adopt such a law. It would have been politically infeasible, impossible in the 1970s, the 1980s, the 1990s, the first decade of the 21st century, or in our own time to believe that such a law could actually get through Congress. So what we see here amongst the Democrats, Richard Blumenthal, Senator from Connecticut, Tammy Baldwin, Senator Democrat from Wisconsin, you also have representatives Judy Chu of California, Lois Frankel of Florida, Eliana Pressley of Massachusetts, Veronica Escobar of Texas, 176 house co-sponsors, and 45 Senate co-sponsors, it is a political charade. There is no chance that this bill will actually pass both houses of Congress. Although if it did, and the Democrats clearly would do it, the Democratic President of the United States, Joe Biden, would sign it.
Why is it so unlikely such a law could ever be enacted under current circumstances? It is because even as the Democrats have a very thin majority in both of the chambers of Congress, enough of the members of their own party are in critical swing states that they could not possibly put their political reputation on the line by going one way or the other on this question. So what you see in this news is that the leadership of the Democrats can claim to their own constituency, "Look, we're trying to get out ahead of the Supreme Court and protect what they claim is a woman's right to abortion." But it basically at this point is just political posturing.
But we also need to note, and note very carefully, that if the liberal majority's in the house and the Senate were larger, and if the question were politically safer, they would be rushing headlong to actually adopt this kind of legislation. In which case, the main issue that would lead to the murder of so many unborn Americans by the millions would not be the Roe V. Wade decision, but a law enacted by the United States government. Which is why we must make very certain that such a law never happens.
The Chicken Sandwich War Becomes the War over the Moral Revolution: Burger King Announces Financial Support for the LGBTQ Revolution While Taking a Swipe at Chick-fil-A
But next and finally for today's consideration on The Briefing, we turn to the question of the moral revolution and the war of chicken sandwiches. Just to get the story straight, David Goldman of CNN reports it this way, "Burger King is making a statement during pride month. It's trying to get a leg up in the chicken sandwich wars by taking a not so subtle dig at rival Chick-fil-A's fraught history with the LGBTQ+ community." Now, one of the things you need to note here is that any company that will not go headlong, enthusiastically, overwhelmingly in support of the LGBTQ+ moral revolution is going to have a fraught history. But Goldman goes under report, "The fast food chain," that's Burger King, "tweeted last week that it would donate 40 cents to the Human Rights Campaign for every Ch'King chicken sandwich sold in June. The Human Rights Campaign," says CNN, "is America's largest LGBTQ civil rights organization."
Burger King went on as it trolled Chick-fil-A by saying that it would make those donations, 40 cents every fried chicken sandwich to the Human Rights Campaign, "even on Sunday." It then tweeted the emoji of eyes. CNN, in order to explain, tells us, as if you needed to know, "Chick-fil-A, because of its devout Christian ownership, closes its restaurants on Sundays." The accusation being made by LGBTQ+ activists against Chick-fil-A, and this has been an ongoing effort to subvert Chick-fil-A, the argument that's made is that the founding family of the company has given to a national Christian foundation that allows some path through funding to Christian ministries that oppose LGBTQ normalization, oppose same-sex marriage, hold up a traditional biblical understanding of morality. The argument in this case is not even that Chick-fil-A directly financed any of those ministries or organizations, but simply cooperated through a Christian foundation made up of philanthropists who direct their giving through the foundation.
But again, what you see is that anything less than total surrender to the moral revolutionaries means that you're constantly going to be targeted and trolled even by your competition. In this case, it is Burger King versus Chick-fil-A. Burger King is advertising that it is entirely enthusiastic about the moral revolution so much so that it's going to put its money where its customers' mouths are, putting 40 cents from every of these particular chicken sandwiches to the Human Rights Campaign. That's quite a moral statement. So that means that if you do business with Burger King, you are doing business to underwrite the moral revolution. If you buy one of their chicken sandwiches, and yes, that's what they're trying now to push because they're not doing so well in the chicken sandwich wars, then just understand you are also underwriting the moral revolution. Chick-fil-A, just to state the obvious, is doing much better in the chicken sandwich wars, because in one sense, it began the war.
If there was a D-Day for chicken sandwiches, Chick-fil-A, in effect, hit the beaches first. "Chick-fil-A is not anti-gay," the company says, and so does the founding family. But what you see here, once again, is how a culture coerces a new moral regime. In this case, the new moral regime is entirely sold out to the LGBTQ demands, an ever-expanding list of demands. And you see here what happens when this kind of moral coercion takes place, and it eventually shows up as a competitor, tries to gain advantage over Chick-fil-A by advertising that it's going to be making a contribution to the moral revolution with the sale of every single one of its chicken sandwiches.
Behind all of this is the targeting of the Christian organizations that are receiving some of the philanthropic support through the Christian foundation. Don't miss that. In this case, as Chick-fil-A is at the center of the target, but that target is constantly looking for any company, for any institution, any college, university, seminary, church, or denomination that stands over against the moral revolution. But it's Burger King that is making that the issue and telling its customers in advance, "You do business with us, you're contributing to the moral revolution."
As for me and my house, I know which line we get into. And by the way, it's the one that already has all the cars.
Thanks for listening to The Briefing.
For more information, go to my website at albertmohler.com. You can follow me on Twitter by going to twitter.com/albertmohler. For information on The Southern Baptist Theological Seminary, go to sbts.edu. For information on Boyce College, just go to boycecollege.com.
I'll meet you again tomorrow for The Briefing.