Friday, April 21, 2023

The Abortion Pill, From 2000 to 2023

On March 22, 2023, I put up the following post:

 

I retired after 30 years of federal employment as a low-level office manager.  While I am far from being an expert on government affairs, that 30 years did teach me quite a lot about how our government works.  One of the things that always fascinated, instructed, and infuriated me was the yawning gap between the literal content of legislation passed by the Legislative branch and signed into law by our President and precisely how that legislation was actually implemented by the Departments and Agencies of the federal government.  It always was…and continues to be…one of those things that make you go “hmmm?”

The erosion of our Legislative branch’s influence on governing...due to the explosion we have witnessed in the Executive branch’s abuse of power and the Judicial branch’s rogue idealism projected onto law...is largely due to the fact that Congress simply does not write what it means.  They leave too much wobble in the wheel.  When legislation is passed and the directions and rules are set forth for the administrators to roll it out, the people who command and control our Departments and Agencies use that legislation as a guide.  That legislation will use both the terms shall and may.  Shall is a clear directive to the civil service contingent of our government that they should administer this legislation according to the text associated with it…as it is written.  If the Judicial branch is asked to rule on the matter of how it is administered, they will consider the use of the word shall as a clear directive to adhere to the details of the legislation.  If the legislation is clearly written, there should be little debate about how it should be performed.

If the word may is used in the legislation, there is a clear understanding that the government official ultimately in charge of administering the legislation…typically a patronage appointee of the Executive branch…can use their discretion while delivering the product.   That discretion will be a result of how they are told by their superiors…the people who got them their jobthe Executive branch…to think and act.  This opportunity to inject personal interpretation into exactly what the legislation means leads to actions that are tinged by politics and agenda-seeking idealism; oftentimes resulting in a federal program that has little resemblance to the legislation that created it.  It allows the Executive branch to, in many cases, brazenly ignore what Congress was trying to do and twist it into a delivery vehicle for their own policy initiatives.  It is a case where the Legislative branch willfully and irresponsibly yields its authority to the Executive branch.  It is happening far too often and the Executive branch has embraced it.

The staffs in Congress that write the legislation are not stupid.  They are intelligent and skilled people who are very good with word composition and well understand how to write a document that says what it means.  Sometimes the lack of detail in legislation is intentional due to compromise or necessary practical flexibility designed to meet varied circumstances.  Other times, legislation is left open to interpretation because Congress is unwilling to do the heavy lifting involved in researching, debating, and writing a clear document that specifically describes their intent.  It is instead a rushed, incomplete, shallow, and arbitrary fill-in-the-blanks document intended to deliver a political message as opposed to a federal action. 

And then there are times when the Executive branch simply ignores the legislation content and willfully strays from its intended purpose.  In this case, the ultimate remedy lies with the Judicial branch ruling on the legality of the Executive branch action.  The problem here is that if the Executive branch is brazen enough to simply ignore the clear intent of Congress and take its own and different direction, it typically takes years for the rogue Executive actions to work their way through the court system.  By the time the irresponsible Executive action is ruled upon, the Executive branch version of the legislation has become part and parcel of our government and is practically impossible to unwind. 

This perversion of our nation’s government and constitution has increasingly led us to a place where autocratic executive actions by the president create results that have no clear connection to what Congress intended in the first place.  In a very real sense, it has tilted the balance of power from the Legislative branch to the Executive branch and has eroded the ability of voters to influence their government through local elections.  It has moved our nation to a point where many times, our President appears more like a King than a Chief Executive. 

If our nation’s government is ever going to regain its function according to the constitutional blueprint laid out by our founders, the Congress must reassert its authority and standing as an equal partner to the Executive branch.  It must use its power to write clear, distinct, and considered legislation and it must use its oversight authorities to monitor and address the incidence of Executive branch over-reach and abuse of power.  Senators and Representatives are our true connections to government because they are closer to us.  They come from our home states and our communities.  They should be our true advocates in Washington, DC because they are one of us.  They are elected by their neighbors; not by the nation.  These are the people who should be deciding how our government functions and what it addresses.  The President should simply be the person implementing those ideals.  Congress must get back to using SHALL and refrain from using MAY.  The Constitution has given them the power necessary to do their job; but if they continue to equivocate and allow the Executive branch to walk over them, this and every future President will continue to usurp their rightful place in our government.  Now…on to the happenings of today…………

 

The issue I was addressing in this post is the explosive nature, since the mid-90’s, of the “administrative state” in our government.  This phenomenon has resulted in a dramatic shift of power and authority from the Legislative Branch to the Executive Branch; it has distorted the fundamental representative nature of our Constitution; and it has enabled ideologues of all persuasions to foist their personal agendas on the American people while bypassing the Representatives and Senators that those very people sent up to Washington, DC to run our government…and our lives.

 

One of the top stories before us is the abortion pill controversy that lies today before the Supreme Court of the United States (SCOTUS).  Here is a good, balanced, and brief summary of what that case is about: https://reason.com/2023/04/07/the-abortion-debate-is-messy-two-lawsuits-against-the-fda-may-make-it-worse/ .  It is anticipated that the SCOTUS will issue their ruling today on that case, but the extent of impact from that ruling is yet to be determined.  Any issue that has minimum tangential connection to the subject of abortion gets sucked into the vortex of hyperbole, mania, hypocrisy, and downright stupid debate rules.  The substance typically gets lost in the madness and the real issues being addressed are often overshadowed by the collateral noise.  I believe that to be the case in this matter.

 

The history of this episode demonstrates for anyone who cares to pay attention the profoundly ridiculous way our legislative branch interacts with our judicial branch when trying to sort out the legalities of executive administrative actions…often referred to as the Chevron Doctrine. Note that in this case, the fundamental question in play was posed in the year 2000.  Today…23 years later…we might get clarification from the SCOTUS…or not.   This is the exact point I was trying to address in my post on March 22 that is reprinted above.  For 23 years, the prevailing law on this abortion issue was not promulgated by our state governments or legislatures, nor was it was issued from our Congress of elected representatives.  Instead, this ruling that has affected incalculable lives and emotions throughout our society and culture was thrust upon us by some politically-appointed bureaucrat in the Food and Drug Administration.

 

If this distortion of our Constitution concerns you in the least, I urge you in the strongest terms to take about an hour of your time and listen to the linked podcast below.  Andrew McCarthy is a brilliant journalist who has the rare ability to distill complex issues down to their basics and present them in an understandable fashion that can enable us to understand what they are all about.  In this podcast, he addresses both my point about the epidemic-like growth of the administrative state and the circus-like environment that now surrounds the issue of abortion in America: https://www.nationalreview.com/podcasts/the-mccarthy-report/a-bitter-pill-you-shouldnt-swallow/ .

 

Somehow, someway, and sometime soon…our nation MUST return to the true intent of our Constitution.  We must restore the principles of state rights sovereignty, limitations on the size and authorities of our federal government, the balance of power between our branches of government, and most important of all…a restoration of integrity to our justice system that guarantees balanced, equal, unbiased, and SWIFT administration of our laws. 

 

In this instance, a blatantly dangerous and grossly irresponsible FDA ruling that began in the year 2000 has continued unabated for 23 years; it has been the law of the land. This is not a justice system.  This is not representative government.  This is a clown show and a perversion of our founder’s ideals for this nation.

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