Wednesday, March 2, 2022

Part I

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The State of the Union Address and America’s Constitutional Order: President Joe Biden Delivers State of the Union Address to the Nation

Article two, section three, clause one of the Constitution of the United States calls for the President of the United States from time to time to “give to the Congress information of the State of the Union and recommend to their consideration such measures as he shall judge necessary and expedient.” Now for most of American history, this State of the Union report or advisement from the president of the United States to the Congress was given by letter. Now, as you look to the modern age, and in this case let’s say that the modern age begins about 1913.

Let’s go back to the 28th president of the United States, Woodrow Wilson. Wilson had a very ambitious political agenda and he needed Congress to pass his legislation. He decided to give an address to a joint session of Congress there in that year, 2013, and it would constitute his address that would advise concerning the state of the nation. And of course, making whatever proposals that he intended for Congress’s consideration, it basically became a public event whereby the president of the United States could address Congress in person seated before him and press for his agenda, both in terms of domestic and international policy.

Now, with the advent, first of radio, and then of television, this also became a major media event and presidents very quickly came to understand that the State of the Union Address given before cameras and before microphones would be a grand opportunity to set a personal agenda for the nation to function as president in a way, symbolizing the presidency, establishing a political tone and rallying public support for the president’s agenda at home and abroad.

It was Franklin Delano Roosevelt did the midpoint of the 20th century, who set the precedent of the address being given in January, but even as Americans and I hope many, if not, most of you observed the speech given last night. It’s a good opportunity for a civics lesson for example, with children. I hope you noted the pageantry and the formality of the event. Some of the political customs that become clear. It was Edmond Burke, perhaps the most important conservative thinker in the history of conservative thought who during the 18th century, the very time the United States was coming into being reminded nations of the responsibility to reinforce national identity and national purpose by means of certain habits and customs. We would refer to many of these as simply the exercise of patriotism and proper understanding of support for country and involvement in national affairs.

When it comes to the habits that you see at the State of the Union Address, the president enters the hall and the hall of course, is the chamber of the house of representatives, enters and makes his way towards the platform. As the president makes his way, he greets several people who are gathered there, pressing on the president as he walks down the aisle. Even before the president begins to walk, he’s introduced by the Sergeant in arms, in such a way that the formality of the event comes with the announcement that the president is coming. And then as the president approaches the platform and the speakers rostrum, he is introduced by one of the two people who are seated behind him.

Those two people are the vice president functioning there as the president of the Senate and the speaker of the house of representatives. Now, Congress in general is hosting the event, but in one sense the Senate is there in the house chambers as a guest. And so the person who introduces the President of the United States is not the vice president as the president of the Senate, but rather the Speaker of the House. So last night it was speaker of the house, Nancy Pelosi, Democratic Congresswoman from the San Francisco area in California who introduced the president of the United States. And the language is very clear by custom, “Ladies and gentlemen, the president of the United States.” And then follows applause.

But notice something else, a part of our separation of powers doctrine written into our constitutional order is that we have three separate and coequal branches of government. We have the executive headed by the president. We have the legislative, and that means both chambers of the Congress, the house and the Senate and it means the judiciary. So you have the executive, the legislative, the judicial, but as you are looking at the president giving a State of the Union Address, this is not like the queen of England offering an address to parliament. This is not the Monarch in parliament, which is the way of the British constitutional order. It is the president of the United States as the chief executive speaking to the Congress by invitation.

This joint session of Congress is Congress’s way of gathering and the invitation must be extended to the president of the United States to give this address. The President of the United States as the head of a separate branch of government has no constitutional right simply to barge into Congress’s house. In this case, the chamber of the house of representatives, much less to approach the rostrum. It is by invitation and the invitation was extended that’s coordinated between the white house and Congress and President Biden entered the house of representatives chamber in order to give his address to a joint session of Congress. It was his state of the union responsibility.

Not without expectation, the president marched right into the issue of Ukraine. Speaking of the defense of Western nations of the Ukrainian cause, speaking of the courage of the Ukrainian people and most pointedly indicting Vladimir Putin, as the aggressor in a war of his choosing, a war without any moral justification and a war that will come with consequences, devastating consequences, said the president. We’re going to speak more about those consequences later, but we do need to understand that in this context, the president did exactly what you would expect any president to do and that is to acknowledge the looming world crisis.

There have been moments when other presidents have entered into Congress to give such an address, sometimes calling to ask for a declaration of war. That is exactly what President Biden didn’t do in this case. As a matter of fact, in his address, he underlined the fact that American troops are not going to be put into military action in Ukraine, but he did underline the fact that NATO nations will now be very much endangered by the action of Russia and Ukraine. And the president openly warned that if Russia presses further, it would mean war with Europe and NATO and thus with the United States. Those exact words were not used, but the message was crystal clear.

Also, very clear was a level of bipartisan support by both Democrats and Republicans for the president, as he’s opposing Vladimir Putin and Russia and indicting their crimes and offering help and courage to the Ukrainian people. When the American people are faced with a kind of crisis, such as what we see right now in Ukraine, the natural response, and we need to be thankful for this, the natural response is to rally together and you see that kind of bipartisan support. That’s not to say that Republicans and Democrats, liberals and conservatives are on exactly the same page about how to meet this challenge, but when you have the optics and the political context and the historical situation of an event like the president delivering a State of the Union Address, just about every single member of Congress wants to be seen as being on the right side of that issue and that’s in support of the United States, in support of our NATO allies, in support of brave Ukraine and in support of indicting Russia for this felonious war.

But the political context also means that president Joe Biden, after a year in office was going into this address with incredible political liabilities. His popularity with voters and his popularity and for that matter, his political credibility in Congress is very much in doubt. The president was looking for a reboot of sorts and it’s unlikely he got it from the address that was given last night. For one thing, he appeared to be befuddled at certain points. His delivery was not certain and that’s a big thing when it comes to delivering this kind of address because it’s not just members of Congress who are watching, it’s the entire nation. And for that matter, it’s not just Americans who are watching, it’s the world that’s watching because of America’s preeminent role on the global scene.

As the president went in to give this address, he has very real political and economic enemies. And by that I do not primarily mean members of the opposing party or recalcitrant members of his own party. I mean, factors such as inflation. The American people are clearly and justifiably concerned about inflation. And the president had the opportunity to give an address in which he would face the issues squarely and suggest how the nation’s economic fiscal and political priorities need to be rearranged in order to meet this challenge. We need to note that’s exactly what the president didn’t do. He basically offered a recitation of what he saw as his political successes. And then he went on to chide Congress for not accepting the massive spending and approving the Stimulus Bill as he called it, that he was calling for which would’ve vastly expanded the federal government, vastly expanded the debt and for of that matter, vastly expanded the reach of government into everyday life.

The president went on to go through a laundry list, not only of his priorities, but the priorities of the democratic party, cloaking them as the way to bring America out of its political context and its fiscal woes. But the reality is, it is unlikely that this address moved the politic meter at all. And you can see that in the response, not so much of Republicans, you can expect them to be critical of an address given by a democratic president, but by the rather tepid response that came on the part of Democrats.

Now, as we’re thinking about the issues the president chose to speak about and what amounted to a one hour address to the nation, I want to look about 75% to 80% within the address. So toward the end of the address, when the president went through a laundry list of the kind of legislative priorities he wants Congress to pass. He wants to brag about this to the American people. There are two in particular to which I want to point. There again, about three quarters of the way through the address the president spoke these words, “Folks, advancing liberty and justice also requires protecting the rights of women.” The president then followed that with this sentence, “The constitutional right affirmed by Roe v. Wade standing precedent for half a century is under attack as never before.”

Now, again, just notice the rhetorical strategy here to establish Roe v. Wade as the norm, to redefine it as having affirmed a constitutional right. Of course, there is no such constitutional right that Roe v. Wade could have affirmed. It isn’t mentioned in the constitution, wasn’t imagined by the framers of the constitution. It isn’t found in any verbal form. It’s not insinuated. It was invented by justices in the majority, in the Roe v. Wade decision of 1973. You’ll notice that the president underlined the importance of Roe v. Wade by referring to it as standing precedent for half a century. And then you’ll notice the political angle of saying that it is under attack as never before. Under attack of course, there is no reference here to the unborn child.

Of course, you’ll notice also that there is no reference in the president’s State of the Union whatsoever to the word abortion. Instead, what you saw here was a direct call for a Roe v. Wade to be legislated. The president has given that before and to offer a political rationale for how his administration will be likely to respond if indeed the Supreme Court does reverse the Roe v. Wade decision. The court’s decision in the Dobbs case from Mississippi that might reverse Roes expected to come in June.

But the very next paragraph is what gets even more interesting where the president said, “If you want to go forward, not backwards, we must protect access to healthcare, preserve a woman’s right to choose and continue to advance maternal healthcare for all Americans.” Notice again, that’s the euphemistic cloak language and for abortion support, most particularly that bill that would legislate not only Roe v. Wade, but even a far more radical position on abortion.

But then the president went on, “And folks for our LGBTQ plus Americans, let’s finally get the bipartisan equality act to my desk. The onslaught of state laws targeting transgender Americans and their families is simply wrong.” He said, “I said, last year, especially to our younger transgender Americans, I’ll always have your back as your president, so you can be yourself and reach your God given potential.” Now, again, just notice that. Here you have the president of the United States pushing for, calling for the passage of the Equality Act. If Congress passes it, he has pledged he will would sign it. And that bill is a clear and present danger to every single Christian church, to every single Christian institution, school, college university, that would stand upon a biblical understanding of human sexuality and gender.

It would radicalize the United States federal government in unconditional support for the LGBTQ cause, but you’ll notice the president’s code language here. He said, “And folks for our LGBTQ plus Americans.” Well, Mr. President, what exactly does the plus sign mean? We can only imagine, and we can only be even more deeply concerned.

One final thought, if you’re going to have a nation, which is bound together and operates by a constitutional order and if indeed conservatives believe that there are certain habits, certain constitutional habits that are important to maintaining the dignity and the operation of government, that means that elected government representatives must act in such a way that those habits are not undermined. Frankly, misbehavior does not become a part of the story rather than the issues that are at stake. There is a proper way for dissent and for disagreement to be registered inside the congressional audience, even during the State of the Union Address. But there are also accesses beyond which no member of Congress, whether Representative or Senator should go.

Admittedly, there is a difficulty in registering simultaneously radical disagreement and democratic respect. When it comes to breaches of that protocol, we’re pretty much left where Justice Potter Stewart infamously was left in a Supreme Court case on pornography. When Justice Stewart finally said in resignation, I am not sure I can define it, but I do know it when I see it.

Part II

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Governor Greg Abbott Set to Face Beto O’Rourke in Epic Texas Gubernatorial Race — Upcoming Midterm Elections Will Determine Who Sits in Many Governorships

But next we go to the state of Texas, the first big state primary in the 2022 midterm elections was held just yesterday in the state of Texas. And even though there remain many votes to be counted and many questions to be answered, it is clear at this point that among the 37 races for governor that are going to take place this year with Texas being one of the most important, the lineup is going to be the two term Republican governor, Greg Abbot is now going to face three term former member of Congress, Beto O’Rourke. Greg Abbot, the incumbent Republican governor was first elected in 2014. He was reelected in 2018 and he’s running as the Texas constitution allows for a third term in office.

Beto O’Rourke you’ll remember had run for the United States Senate against current United States Senator, Ted Cruz. He was widely expected at some points to win, but he didn’t. As a matter of fact, he didn’t perform nearly as well as had been expected. He’s a very interesting figure, kind of a belated child of the ’60s. His actual name is Robert Francis O’Rourke, but he goes by the name Beto. This was assumed to associate somewhat with the Hispanic voters in the state. He has a very eclectic personality, but he also is on the wrong side of many issues when it comes to the majority of voters in Texas, most importantly, gun control, as we shall see where he is actually a quite vociferous proponent of gun control legislation and he’s been honest about that. But that’s one thing if you’re a member of Congress and you’re only really being voted on by the members of your district is another thing as you’re running a statewide race. This will be O’Rourke’s second big statewide race.

But wait, just a minute. He also ran for the 2020 Democratic presidential nomination, but you’ll recall he didn’t get very far there either. So as you’re looking at the 2022 gubernatorial election in Texas, one of the over 30 to be taking place just this year in governorships, just consider the fact that Texas voters are going to have an extremely clear choice. An extremely clear choice between the very Republican, Republican incumbent Greg Abbot and the very Democratic, Democratic challenger Beto O’Rourke. It’s going to be a fascinating race. It’s going to gain a lot of national attention. It’s also the first big primary question that has been answered in the hugely important 2022 midterm election cycle. There will be many more to come.

Part III

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Precedents Should Stand Even if Wrong? What is the Point of the Supreme Court if It Stands on Its Mistakes Rather than the Constitution?

Finally, today on The Briefing, I want to go back to a statement made by the president in his State of the Union Address.

He referred to Roe v. Wade and underlined its importance as a precedent of 50 years standing. A very interesting article appeared recently in the Los Angeles Times by Nicholas Goldberg, a columnist for that paper. The headline in this opinion piece, “Who says the Supreme Court shouldn’t overrule its precedence? When it needs to, it should.” Now in this Nicholas Goldberg is responding to the claim made by many supporters of abortion that Roe v. Wade, even if it had been wrongly decided in 1973 should stand simply because it is an important precedent. And because as one of the attorneys arguing for abortion rights made clear before the Supreme Court in the oral arguments, in the Dobbs case. Women, according to her argument have been depending on this Court’s ruling for 50 years, thus, it would be unfair to pull it out from under them.

But Nicholas Goldberg is making the very important point and there’s a punchline to this that’s coming. Goldberg argues that if a case is wrongly decided, then the precedent should be reversed. The court should be on the right side of the constitution. If it rendered a ruling that was wrong, the wrong should be corrected. Now you would think that just would be normal, natural, common sense. Going back to those oral arguments in the Dobbs case, Goldberg points to a statement made by Julie Rikelman. Now she was one of the two attorneys making the case against the Mississippi laws that would limit abortion. In other words, she’s making the pro-abortion argument. As Goldberg explains, “In her defensive of Roe before the Supreme court in December Julie Rikelman, the litigation director, the center for reproductive rights stated flatly that it would be wrong for the justices to overrule the decision even if they believed it had been improperly decided.” It’s a stunning argument.

I pointed to it when I discussed the oral arguments on the briefing just months ago, but he quotes Rikelman as saying, “The view that a previous precedent is wrong, your honor, has never been enough for this court to overrule.” She went on to say, “And certainly it shouldn’t be enough here when there’s 50 years of precedent.” So the attorney was just making the case, even if Roe were wrongly decided, women have depended on it for 50 years. So it would be wrong for the court to correct its error. Goldberg goes on and says the obvious quote that strikes me as ridiculous and a little disingenuous, not ridiculous because what’s the point of having a Supreme court, if it stands on its mistakes rather than on the constitution? But when he says a little disingenuous, here’s what he means.

There are plenty on the left for whom there are plenty of cases and precedents they actually want to be reversed. And you can just consider by the way, how that process worked when the Supreme Court handed down a series of rulings supporting the state’s right to criminalize, same-sex sexual behavior. And it was one of those cases, Bowers v. Hardwick, that was completely overruled by a later case. And thus you had a precedent set and a precedent broken. Goldberg points to the classic example and that would be the Supreme Court’s 1896 decision known as Plessy v. Ferguson that affirmed racial segregation and so-called separate, but equal doctrines. Goldberg clearly was celebrating the Court’s eventual reversal of that bad precedent, but he then goes on to make something very clear. And here’s what I said was going to be the surprise in all of this.

And that is the fact that after making that argument, that precedent should be overturned if a case were wrongly decided he comes back and makes very clear, he thinks Roe v. Wade should stand. He said, “Just to be clear, I’m 100% pro-choice. I’m also pro-Roe v. Wade and pro-Planned Parenthood v. Casey. The important decision that reaffirms Roe’s essential holding 19 years later. Those decisions he said together, lay out the court’s argument that the constitution protects a woman’s right to an abortion until viability when the fetus can live outside the womb. That’s the irony we face here. Nicholas Goldberg, undoubtedly thinks he’s standing on principle when he says precedents wrongly decided should be reversed. But wait, just a minute. Roe v. Wade and Planned Parenthood v. Casey were not wrongly decided. “I’m a hundred percent pro-choice,” he said. “I’m big time pro-abortion, pro-Roe.” Well there you have it. But as you’re looking at constitutional law, even the late, very ardent abortion rights supporting justice, Ruth Bader Ginsburg indicated that she believed that Roe v. Wade had simply overreached.

And she was also saying that as a supporter of abortion, as a former attorney making feminist claims before the court, and as of course, an abortion right supporting justice of the Supreme Court. Intellectual honesty, however, is to be respected wherever it is found. It was also interesting subsequent to the publication in the Los Angeles Times of that column by Nicholas Goldberg, that there were good many letters that were sent in, which were even more alarmist than Nicholas Goldberg and even more extreme in support of abortion rights. Some of them claiming that if Roe v. Wade were to be reversed, it would mean effectively the end of America’s constitutional order. And there’s where you need to understand that there’s a basic divide in the United States even over the words, America’s constitutional order.

Does that constitutional order mean the rule of judges, whether they’re liberal or conservative according to their own philosophies? Or does it mean rule by the constitution and its text as a binding contract, mutually accepted by the citizens of the country and operationally limiting as well as establishing the functions of government? Either way you look at it, if one decision by the Supreme Court or even one decision with a reversal by the Supreme Court, if that can bring an absolute end to America’s constitutional order, then it wasn’t much of a constitutional order to begin with.

In the case of Roe v. Wade, we continue to hope and we continue to pray that that horrifying Supreme Court precedent will indeed be reversed.