Posts Tagged ‘Andrew Oldham’

Federal Court To Biden: “No, You Can’t Have A National Guard Vax Mandate. Not Yours.”

Thursday, June 15th, 2023

Slowly but surely the relics of governmental overreach in the name of containing Flu Manchu are being rolled back. Texas Governor Greg Abbott finally announced he was letting his three year old emergency declaration lapse. (Are you sure you’re not rushing there, governor?)

Now a federal court has slapped down Biden’s vaccine mandate on the National Guard.

Just hours after Gov. Greg Abbott finally ended the COVID-19 disaster declaration, he announced that he won an appeals case against the Biden administration for attempting to enforce vaccine mandates on the Texas National Guard.

In January 2022, Texas Attorney General Ken Paxton filed a lawsuit against President Joe Biden to stop him from forcing the Texas Army National Guard and the Texas Air National Guard to get coronavirus vaccinations.

Over a year later, the U.S. Court of Appeals for the 5th Circuit issued its ruling that the Constitution and laws of the United States deny Biden the power to punish members of the Texas National Guard if they refused to get injected with the vaccine.

Circuit Judge Andrew Oldham stated in his opinion that he rejects the president’s assertion of power over the members because they were not called into national service.

In this case, President Biden imposed and then repealed a mandate requiring State militiamen to take the COVID-19 vaccine. And now that the President has rescinded the vaccine requirement, he wants to retain the power to punish militia members who refused to get the shots while the mandate was in effect—all without calling them into national service. We reject the President’s assertion of power because it would undermine one of the most important compromises in the Constitution. If the Constitution’s text, history, and tradition make anything clear, it’s that the President can punish members of the Texas militia only after calling them into federal service.

In Paxton’s lawsuit, he argued that neither the president nor federal military officials can force the state’s National Guard to comply with vaccination mandates.

“Neither the President nor federal military officials can order the Governor of Texas and non-federalized National Guardsmen to comply with a vaccination mandate or to direct a particular disciplinary action for failure to comply,” Paxton’s office wrote in a press release. “President Biden is not those troops’ commander-in-chief; Governor Abbott is.”

There seems to be no constitutional limit statists won’t override in their eternal, all-encompassing quest for dominion over others. Eternal vigilance is still the price of freedom.

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Posted in Regulation, Texas | 1 Comment »

Fifth Circuit Court Starts Dismantling The Administrative State

Thursday, May 19th, 2022

American Civics 101 teaches us that there are three branches of the American government: Executive, Legislative and Judicial. However, that clean, elegant division started to go awry in the early 20th century (some would place the problems even earlier) with the creation of the Federal Reserve and the vast expansion of the administrative state under the New Deal.

One blow to that traditional tripartite division of federal powers was the creation of administrative courts for independent agencies. Yesterday, the Fifth Circuit Court of Appeals (which includes Texas) ruled such courts were unconstitutional.

The Securities and Exchange Commission’s in-house judges violate the U.S. Constitution by denying fraud defendants their right to a jury trial and acting without necessary guidance from Congress, the 5th U.S. Circuit Court of Appeals ruled on Wednesday.

The court ruled 2-1 in favor of hedge fund manager George Jarkesy Jr and investment advisor Patriot28 LLC, overturning an SEC administrative law judge’s determination that they committed securities fraud.

A spokesperson for the SEC and counsel for the petitioners did not immediately respond to a request for comment on Wednesday.

The Dodd-Frank Act, which Congress passed after the 2008 financial crisis, expanded the SEC’s ability to seek penalties in its administrative proceedings.

In the ruling Wednesday, the majority said that because seeking penalties is akin to debt collection, which is a private right, the defendants were entitled to a jury trial.

The SEC had argued that it was acting to protect investors and enforce public rights found in the securities laws.

The majority also found that SEC judges, known as administrative law judges, lack authority under the Constitution because Congress did not provide guidance on when the SEC should bring cases in-house instead of in a court.

U.S. Circuit Court Jennifer Walker Elrod, joined by Circuit Court Judge Andrew Oldham, penned the majority opinion.

This is a long overdue trimming of the unelected administrative state and a restoration of the division of responsibilities between the three branches that forms part of the Constitution’s vital system of checks and balances. However, given the potentially far-reaching effects of the decision, expect first an en banc hearing of the Fifth Circuit, and then an appeal to the Supreme Court.

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Posted in Regulation, Texas | 4 Comments »