Life in These United States

People disagree about public policy because of differing values, priorities, and beliefs about what government should do.  Different interpretations of facts as well as differing interests and personal experiences also play a role.  So, it’s understandable that conflicts often arise not just from evidence, but from what people care about most.   And from my libertarian perspective I find two issues genuinely troubling for the nation at-large.

First, imagine yourself living during the Civil War when President Abraham Lincoln issued his most famous executive order, the Emancipation Proclamation.   When Lincoln issued the order on January 1,1863, he was pursuing four clear objectives:

1. Give the Union a higher moral purpose. The Civil War would no longer be fought solely for national unity, but for human freedom.
2. Encourage Black enlistment. By war’s end, 180,000 free Black men would wear Union blue and help turn the tide.
3. Weaken the Confederacy’s labor force. Enslaved men and women who had provided food, clothing, and labor for Southern armies were encouraged to withdraw their support.
4. Prevent foreign recognition of the Confederacy. Britain and France, whose elites flirted with intervention, recoiled at aligning with a slave power.

Lincoln’s idea was both humanitarian and politically masterful inasmuch as it re-shaped the war and the nation.  But now imagine if today’s contentious and hateful lawfare had existed then.  Does anyone doubt today’s Democrat Party would have rushed to court, looking for a sympathetic activist judge to block the Emancipation Proclamation and secure a temporary restraining order (TRO) halting emancipation before it even began?  This is the partisan political world we live in, where every decision no matter how benign or beneficial to the public is met with resistance.

Prior to the 2024 election a former U.S. Attorney told me bluntly: “Butch, even if he’s elected, the left will challenge every decision, every action, and every executive order—always looking for TROs.”  The former U.S. Attorney’s prediction has proven prescient.  For example, Trump’s executive orders restricting federally imposed DEI requirements were quickly blocked in district courts.  But the Fourth Circuit Court of Appeals lifted the injunctions, allowing the orders to take effect while challenges proceeded.

Another order curtailing union protections for federal employees was again initially struck down.  But the D.C. Circuit reversed it, ruling the president had wide discretion over the management of the executive branch.  Additionally, Trump’s sweeping plan to downsize the federal government (DOGE) through layoffs and consolidations was frozen by a lower court.  The Supreme Court lifted the injunction, restoring the order’s force.  However, to no one’s surprise, Joe Biden’s DEI appointment to the Court, Justice Ketanji Brown Jackson dissented.

Later, in the Trump v. CASA, the Supreme Court ruled that lower courts cannot issue nationwide injunctions against executive actions, restricting blocks only to actual plaintiffs.  While not a substantive ruling on policy, it dismantled one of the left’s most potent legal tools.  When Trump dismissed democrat members of the Consumer Product Safety Commission, district courts tried to block the move.  The Supreme Court again intervened, lifting the injunction and affirming presidential authority to remove executive branch officials.

The lesson here is Lincoln’s Emancipation Proclamation worked because no politician dare try to derail it by taking it to an activist judge (if they even existed during the mid-nineteenth century.)  Today, TROs and preliminary injunctions have become the weapons of choice among of the Left.  Nonetheless, despite the constant barrage, Trump has racked up victories: appellate rulings, Supreme Court interventions, and the steady lifting of injunctions that once paralyzed his policies.  Fortunately, temporary judicial blocks are not the last word.  In many cases, higher courts have affirmed the president’s constitutional authority to act—just as Lincoln exercised in 1863.

The other issue I find concerning is DEI because a good argument can be made that Biden’s executive orders on the matter were little more than politics pandering to the democrat base.  The 14th Amendment to the U.S. Constitution explicitly requires that no state deny any person equal protection under the law (the Equal Protection Clause).  Through reverse incorporation, the 5th Amendment’s Due Process Clause also applies these protections to the federal government.  As a practical matter, the U.S. Constitution already blocks discrimination based on race, gender, and other characteristics, while the foundational principle that “all men are created equal” found in the Declaration of Independence, underscores America’s commitment to equality based on individual merit, not identity.

The legal standard of Equality Before the Law mandates that everyone receives equal treatment and protection under our legal system without resorting unnecessary policies to reinforce it.  In effect, DEI programs are duplicative of constitutional protections and federal anti-discrimination laws like Title VI (race, color, national origin) and Title IX (sex) that have been in place for decades.

The reality is DEI initiatives go beyond equality of opportunity and instead emphasize equity, i.e., equal outcomes, which undermines merit-based standards and foster division.  And it’s believed here that eliminating DEI programs restores American ideals of color-blind equality—recognizing individuals’ merit without regard to group identity; policy that aligns with the Constitution.  Merit, opportunity, and constitutional law are the foundational pillars of fairness—not additional, separate DEI programs.

Quote of the day:  “The whole political vision of the left, including socialism and communism, has failed by virtually every empirical test, in countries all around the world.  But this has only led leftist intellectuals to evade and denigrate empirical evidence.” – Thomas Sowell