Author: Judge John Wilson (ret.)

How did the jury come to its decision to acquit Mark Houck in the Freedom of Access to Clinic Entrances so quickly?  Now that the trial is over, video evidence submitted at the trial has become available for public view. That evidence clearly demonstrates that the Justice Department never really had a case against Houck from the beginning.  

In a surveillance video taken on the day of the incident, Houck and his son can be seen standing 50 feet away from the entrance to the clinic.  Love is then seen approaching the pair, and standing close to the young son.  Houck than points over Love’s shoulder, in a gesture that unmistakably conveys a request to leave, and Love begins to comply, but then turns back to face Houck.  Houck then pushes Love, who collapses to the ground, but then returns immediately to his feet.

All of these actions occurred approximately 50 feet away from the entrance of the clinic.  Love is not in the process of escorting any patient into the clinic – in fact, Love leaves the front of the clinic to approach Houck and his son, who are obviously minding their own business.

As described by Houck’s attorney, Peter Breen of the Thomas More Society, the video clip from the surveillance camera, available on YouTube, was the only film available of the incident, the director of Security at the clinic having erased the footage from all other surveillance cameras.  He also noted that this video was available to the Justice Department from the time their office decided to bring a case – video which shows Houck NOT blocking the entrance to the clinic, or interfering in any way with anyone’s receipt of services at the clinic.

As Attorney Breen stated to Fox News, “What we did was win a big victory for the pro-life movement against the Biden administration…(t)hey were trying to scare pro-lifers from coming out on the sidewalks and being active. Biden, that DOJ, sent their best prosecutor, the top guy for (FACE) prosecutions from Washington, to help deal with this case in Philly and that jury, once we finally got it seated fully, took about an hour to find Mark not guilty on all charges.”  

It is no small thing to assert that the Justice Department is using its authority and power to intimate private citizens.  But here, the evidence is clear.  From a large contingent of armed government agents used to effect the arrest, to a jury trial conducted over five days, it only took a jury one hour to see what the government would not – that this incident may have been a misdemeanor assault, but it was not, in any way, a violation of a federal statute.

Sadly, the progressive District Attorney of Philadelphia showed more sense than the US Attorney’s Office.  But Krasner doesn’t have the same agenda as the Justice Department.

We can also point to another positive development, a glimmer of hope that the Justice Department has recognized the failure of their heavy-handed attempt at intimidation of just one side in the abortion debate.

“Jane’s Revenge…claimed responsibility for at least 18 arson and vandalism attacks on crisis pregnancy centers (CPCs) and other faith-based organizations throughout the U.S. since the May 2 (2022) leak of the Supreme Court draft opinion in Dobbs v. Jackson Women’s Health Organization…(yet)…Not a single arrest has been made.”  

That is – until now.

“Two Florida residents were indicted by a federal grand jury for spray-painting threats on reproductive health services facilities in the state,”  according to a Press Release from the Justice Department. “The indictment, returned by a federal grand jury in the Middle District of Florida, alleges that Caleb Freestone, 27, and Amber Smith-Stewart, 23, engaged in a conspiracy to prevent employees of reproductive health services facilities from providing those services. According to the indictment, as part of the conspiracy, the defendants targeted pregnancy resource facilities and vandalized those facilities with spray-painted threats….including ‘If abortions aren’t safe than niether [sic] are you,’ ‘YOUR TIME IS UP!!,’ ‘WE’RE COMING for U,’ and ‘We are everywhere,’ on a reproductive health services facility in Winter Haven, Florida. The indictment further alleges that facilities in Hollywood, Florida, and Hialeah, Florida, were also targeted.  

Most likely ignorant of the concept of irony, Pro Abortion activists have decried the use of the FACE Act to prosecute Freestone and Smith-Stewart.  “’This is yet another example of the government disproportionately charging alleged activists with serious crimes in an attempt to deter political opposition to the fall of Roe post Dobbs,’ Lauren Regan, the director of the Civil Liberties Defense Center and attorney for defendant Smith-Stewart, (said). ‘Tagging private property might be a violation, but it should not be a federal crime’…’The level of bothsideism here by the DOJ goes beyond absurdity. Frankly, this is something I would have expected to see from the Trump Administration,’ said Hayley McMahon, a public health researcher who studies abortion and criminalization at Emory University…the Justice Department is ‘setting an incredibly irresponsible precedent for recognizing CPCs as medical facilities that provide reproductive health services.’” 

Both Freestone and Smith-Stewart are allegedly members of Miami Antifa.  According to Antifa Watch, “Freestone has a history of attending school board meetings, where he was making lists of parents and community members concerned about CRT. (Smith-Stewart) openly ID’s as Miami-Dade antifa on Facebook…” 

The two activists were arrested at the end of January, apparently without the use of 20-30 FBI Agents, and were both granted release pending trial,  unlike Houck, who  was required to post $10,000 bond, surrender his passport,  and “restrict() his travel to the Eastern District of Pennsylvania unless he receive(d) permission to leave from Pretrial Services, (as well as)…surrender any firearms he may possess.”  

Is there still disparate treatment between Pro Life and Pro Abortion defendants?  Clearly.  But the acquittal of Houck and the indictments of Freestone and Smith-Stewart at hopeful steps in the right direction.

Judge John Wilson (ret) served on the bench in NYC

Illustration: Pixabay

In November of last year, we discussed the case brought by the Justice Department against Pro Life activist Mark Houck for a violation of the “FACE” Act – the Freedom of Access to Clinic Entrances – which  “provides for criminal penalties including up to one year in prison for a first offense, if that person ‘by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services.’”

Mr. Houck was arrested at his home by approximately 25-30 FBI Agents after his indictment for a FACE Act violation.  His crime?  In October of 2021, “Houck was outside the Planned Parenthood Elizabeth Blackwell Health Center abortion clinic in Philadelphia, Pennsylvania, praying with his 12 year old son (Houck and his wife have 7 children).  An unidentified man (who has since been identified as 72 year old Bruce Love, a ‘volunteer patient escort’ for the clinic) approached”  Houck and his 12 year old son. “According to Houck’s wife…the man ‘kind of came into [the son’s] personal space’…Mark shoved him away from his child, and the guy fell back… He didn’t have any injuries or anything.” 

Love made a complaint with the local Philadelphia authorities, who declined to pursue a case.  This is no unimportant fact – the District Attorney of Philadelphia is Larry Krasner, an unabashed progressive, who is “focused on restoring balance to our criminal justice system, ending the era of mass incarceration, and moving beyond the false promises of overly –punitive policies,” as well as “committed to ending overly punitive practices that disproportionately affect Black people, people of color, and poor people.”  

Apparently Krasner’s progressive goals did not extend to the aggressive prosecution of a Pro Life Activist who pushed an Abortion Clinic Volunteer away from the activist’s young son.

Why then were federal authorities interested in bringing criminal charges?  As we noted in November, quoting  Hans von Spakovsky and Charles Stimson of the Heritage Foundation, “(i)t is not a coincidence…that this takedown of someone who, at best, committed a misdemeanor assault came almost exactly three months after the Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade…(t)he FBI’s raid of Houck’s home was designed to send a warning to pro-life activists engaging in activities protected by the First Amendment…(t)he timing of this indictment of Houck…is suspect and calls into question the motive behind the Justice Department’s move.”  

The idea that the Justice Department engages in the selective prosecution of citizen’s engaged in activity of which the government does not approve is chilling indeed – especially when that government sends more than two dozen armed agents to storm the home of a peaceful, prayerful man and his family.  But we are fortunate that our government is composed of more than one branch, and if the Executive (here, the Justice Department) commits an overreach in its authority, there is another branch of government that can correct that excess.

Sometimes, it is the Legislative Branch that must restrain the Executive.  But in this instance, the correction has been made by the Judicial Branch, through the exercise of one of our most basic Constitutional rights – trial by jury.

In January of this year, after a trial lasting five days, Mark Houck was found not guilty by a jury that deliberated for only about one hour.   “The prosecution argued that Houck pushed Love because he was trying to interfere with his provision of reproductive health services. Houck said he pushed Love because he was just trying to protect his 12-year-old son who was being harassed by Love. A 12-person jury unanimously found Houck not guilty of both counts of violating the FACE Act.”  

The article concludes tomorrow

Judge John Wilson (ret.) served on the bench in NYC

Illustration: Pixabay

American school children are taught stereotyping is bad. At first glance that sounds correct, but in reality, it can suffice as a short-term, interim solution to the challenge of understanding “the other.” When there is an unknown factor and no other information is available, stereotyping is the first line of human defense and  provides a form of general understanding of our external environment. If one sees a person with a gun, our human senses alert us to potential danger. Our brains then gather additional information and “should” adjust our behavior to reflect the new information. Is the person in a uniform? Or, are they wearing a black ski mask over their face? In the international community the United States often is in a position where the only information we have about “the other” is stereotypical data. It may provide some general guidance, but more is required to increase the accuracy of our foreign policy assumptions and decision making.

Americans are at a great disadvantage in the world. Over 54% of Europeans are able to converse in more than one language and over 10% can speak at least three. With the study of foreign languages often comes improved cross-cultural understanding. There are over 380 languages spoken in American homes, yet most US citizens speak one. Only five percent claim to speak three languages and only 1.4% can converse in four. Our cultural knowledge and understanding of history is also severely limited. In today’s fragile international environment, Americans need to obtain a better cognitive understanding of the world around us and the ethnic groups within various foreign nation-states. Today we are facing geoeconomic conflict with China and a potential kinetic war in Europe with Russia, among other challenges. Yet the vast majority of Americans, and many of our leaders in Washington, have little knowledge of what goes on inside those nation-states. 

The Russian Federation encompasses a number of ethnic and regional groups that challenge the leadership in Moscow. Yet Americans treat Russia as a simple black box with little indication of interest in what goes on inside it. Since the war in Ukraine last year Putin has taken additional steps, for example, to control its Cossack population. Few Americans know this group’s history or its impact on the Russian Federation. Many policymakers in Washington also stereotype this ethnic group. The US understands Russia as one country, although each July the country celebrates Captive Nations Week. The resolution actually speaks about occupied Cossakia and the Russian law on rehabilitating nations that were repressed in Soviet times. The name Cossack, or Kazak, is a Turkish word meaning “free man” or “adventurer.” The dialect they often speak is the Kuban-Black Sea Balachka which started as a central Ukrainian dialect, ot a Russian one. There were a number of Cossack uprisings against the Russian Empire during the 16th, 17th, and 18th centuries. Today they remain the most serious ethnic challenge to Kremlin rule inside the Russian Federation, according to Paul Goble of the Jamestown Federation. 

Putin is attempting to control the Cossacks using census manipulation and the creation of regime-controlled Cossack organizations to repress the ethnic group. As “free men” they are becoming more active and leaving the Kremlin with few effective policy options, according to a Free Nation League article last November. North Caucus Weekly, according to Goble, reports that “Since the end of the Soviet Union, Moscow has viewed the Cossacks as both an opportunity and a danger, and this combination has often confused observers as to what exactly is the Kremlin’s overarching plan.” 

Counted as Russian they could be an ally and help with the Federation’s failing demographic outlook. “They can play a key role in holding ethnic Russians in the North Caucasus and other non-Russian regions from which they are leaving and in providing cadres for Russia’s police force and military,” adds Goble.  The five to seven million unregistered Cossacks, according to Russian state officials, pose a threat to aspirations of the Kremlin leadership as they view themselves as repressed, self-organizing democratic communities seeking to gain recognition as a sovereign nation. Looking inside the Russian state, the “black box,” some intelligence community analysts who study the region says that Cossack actions are impacting other “nations” within Russia as well and adding to calls for increased regionalism that could further fragment the Russian Federation.  

“If the Cossacks succeed in breaking away from the Russian nation, not only does that mean that Russia will lose another seven million members and 5 percent of the country’s population, but it will also set the stage for a more general rise in regionalism as a political force,” argues Goble. Should Siberians, residents of the Ural mountains, and other smaller ethnic groups decide to leave the Russian Federation, Putin would be left with little more than Moscow to rule. He was so concerned about this potentiality that in a February28 speech he called to the Federal Security Bureau Board he called on its forces to actively resist “all this scum” who are trying to split and weaken Russian society. Putin views the Cossacks separatists and radicalizing other non-Russian groups inside the country. He is demanding Cossacks become Russian Orthodox in religion and work as servants of the state. 

The war in Ukraine has increasingly led Cossacks to see it as an opportunity to form their own state in alliance with Kyiv and the West. Eurasia Daily Monitor reports that some, who now call it “Cossackia,” recognize the region as a “potentially powerful bulwark against Russian imperialism.” It may not occur but it is a clear case that requires an understanding of Cossack history, culture, and language that goes beyond the capabilities of many policy makers in Washington. 

Daria Novak served in the U.S. State Dept.

Illustration: Pixabay

China is facing off with the Great Wall of Capitalism, in a competition unlike any other since the end of the Cold War. President Xi Jinping portrays it as a rising China reclaiming its rightful place in the world by challenging and defeating a declining West. Ramping up the competition since assuming office in 2012, Xi is determined to take on American dominance across the Indo-Pacific. A Jamestown Foundation report released this week, examines the possibility that this new Sino-American Cold War could turn “hot” over issues such Taiwan.

Although the US, NATO, Japan, South Korea, and Australia are working together, China has allied itself with Russia and other non-democratic states, including Russia, North Korea, Iran, and Pakistan. China is using these states to prevent the formation of an Asian style NATO in the Indo-Pacific, according to Willy Wo-Lap Lam of the Jamestown Foundation. He says that the Chinese response has been to continue supporting their long-time quasi-ally Russia, which has further inflamed positions surrounding Russia’s war in Ukraine.  

It appears the US and China are on an irreversible spiral despite protestations from both sides about its nonexistence. President Joe Biden and Secretary of State Antony Blinken have publicly state the US is “not looking for a Cold war,” although Blinken last year in a speech did say “China is the only country with both the intent to reshape the international order – and, increasingly, the economic, diplomatic, military and technological power to do it.” The reality is that the United States and China are involved in a Cold War. In Beijing Lam says that Xi warned that “efforts to form cliques [of nations] and to foment a ‘new Cold War,’ ostracism and intimidation… will only push the world toward disintegration and even confrontation.” He adds that a number of Chinese academics blame Washington for escalating tensions and creating a self-fulfilling prophesy. What China claims is dependent on the audience, according to the Jamestown Foundation report. It notes that at the G20 meeting in Bali last November, Xi vowed to Biden that the PRC had no intention of challenging American supremacy. “This wide world can accommodate the developments of China and the US,” according to the Chinese president. 

At internal meetings of the CCP leadership, however, Xi uses revolutionary lines from Mao proclaiming “the East is rising and the West is declining.” Lam says that Xi considers the “Chinese program and Chinese path” so superior that it is only a matter of a decade or so before the PRC can claim superpower status – as well as being the final arbiter of events first in Asia and then the rest of the world. The recent Chinese surveillance balloons that flew over the United States are, according to Lam, an attempt by Beijing that demonstrate their military and intelligence clout. In the past Xi has provided a timetable for overtaking the US. He says China will overtake the US as the world’s sole superpower between 2035 and 2049. It is significant that that the latter dates marks 100 years since the founding of the PRC. 

Other American allies, according to the report, have also raised the level of their concern about the “China threat” to unprecedentedly high levels. It notes British Prime Minister Rishi Sunak said he supported a hardening of diplomatic relations with Beijing, since China posed a “systemic challenge to our values and interests.” One difference between the current environment and that of the first Cold War is that for a long time the US was enamored with China. It lasted until a decade ago. 

The Jamestown Foundation report argues that the “’China Fantasy,’ which underpinned a policy of engagement largely followed by presidents Jimmy Carter, Bill Clinton, and George W. Bush, was that as the PRC became rich, its citizens would follow the rebellious students in Tiananmen Square and regard the Statue of Liberty as the icon of freedom and justice.” In a pivotal moment, President Clinton even encouraged China to join the World Trade Organization. China’s culture is one that values long-term planning. Xi is a nationalist with the goal of creating a “great renaissance of the Chinese nation.” 

 The PRC’s global influence, however, is much more extensive than that of the former Soviet Empire. China has extensive resources, a large economy, and through its Belt and Road Initiative (BRI), is willing to weaponize trade to achieve it. Lam points out that the first five-year BRI budget of $1 trillion was seven times the amount the US spent on the Marshall Plan after WWII. Together with its soft power influence operations and world-wide propaganda world there are solid reasons for the democratic West needs to be concerned about China. The Great Wall of Capitalism will need to be strong in the coming years as many in the intelligence community believe that China sees its window of opportunity beginning to close. That makes Xi and China more dangerous and less predictable.

Daria Novak served in the U.S. State Dept.

Photo: Chinese tank on practice maneuvers (China Defence Ministry)

The phrase “what is in the US national interest” gets bantered around a lot in the US media. Most of the talk now is centered now on discussions surrounding Russia’s year-long war in Ukraine. There is, however, more backstory to consider than simply addressing the issue of US involvement in a European war. Due in part to the Biden Administration’s lack of a comprehensive foreign policy addressing the Ukraine issue, the Russian leadership sees the United States as weak and befuddled. Unlike the four years of the Trump Administration, the Obama-Biden White House was marred by promises made through then-Russian President Dmitri Medvedev to Putin that the US president would have more “flexibility” on decisions regarding missile defense systems for Poland and Czechoslovakia after the elections. The Obama-Biden White House then followed through by stopping their delivery. 

Russian political culture requires an esteemed leader to adhere to strong man politics and never reveal any weakness. Following in Obama’s footsteps, the Biden-Harris years are marked by a lack of strong leadership or a comprehensive foreign policy in which Washington acts as leader of the free world. Putin understood this when he invaded Ukraine. And, he was correct. There was no strong or immediate reaction from Washington, which signaled Moscow to go ahead with its special military operation.

What is significant this month is that the White House is continuing to message Moscow, intended or not, that the US “reset” under Obama is ongoing. Biden appears unwilling to become more involved in the war as it is seen as outside of “US vital interests,” despite the threat to Ukraine and NATO Member states. Last week Florida governor Ron DeSantis “kicked the foreign policy establishment hornets’ nest” in his response to a questionnaire Tucker Carlson sent to potential 2024 Republican primary candidates, according to Front Page Magazine’s Bruce Thornton. Asked about our Ukraine policy, DeSantis wrote that the Russo-Ukrainian war was simply a “territorial dispute.” Left unaddressed, says Thornton, were questions about whether our “vital national interests” are being served by our open-ended, yet hesitant support of Ukraine. It is an issue that needs addressing and not by using weak diplo-rhetorical language.  

Ukrainian President Volodymyr Zelensky called US involvement in his country an “investment.” Although the United States is beginning to step up, it is late in doing so. That has not gone unnoticed by Putin or Chinese President Xi Jinping. Putin needs China to continue directly, or indirectly, funding his war effort in Ukraine. Xi also has noticed a lack of American leadership in the Pacific region and has taken advantage of it. China has seized East Asian islands belonging to other countries, used its navy to control vast swaths of the South China Sea, and employed its air force to monitor and threaten free international airspace. This past week Xi Jinping flew to Moscow for discussions with Putin. 

The meeting is seen as a bit of a role reversal from the Cold War era, in which Russia was the dominant partner. Putin needs China’s financial backing to pay for the war this year. At the same time, many in the US defense and intelligence community argue that it is Xi who actually needs Russia to keep America distracted for the next two to four years while Beijing finalizes its preparations for taking back Taiwan. The Chinese leadership views the US as a declining state with a weak president. Xi, many analysts suggest, would like to use Putin to further weaken the US. He will need to take a nuanced approach with the Russian leader. If China grows too close to Putin publicly Beijing could suffer from additional economic sanctions and possibly further unify the West against China. What is certain is that what’s in the US national interest is not in line with that of either Russia or China. Putin knows the trilateral relationship is changing. He is not going to back down. This war may be Russia’s last chance to regain territory, prestige, and retain some semblance of recognition as an important nation-state. Putin also knows that China holds the high cards now and that an all out push in Ukraine may be the only avenue left to Russia.

Daria Novak served in the U.S. State Dept.

The United States is on a descent to becoming only a third-rate nuclear power.  Russia has the world’s largest nuclear arsenal, a result of an agreement reached during the Obama Administration. Now, it has been revealed that China has more land-based ICBM launchers than the United States. Equally troubling, in just the last two years, Beijing has doubled the number of warheads in its possession.

U.S. Representatives Mike Rogers (R-AL), Chairman of the House Armed Services Committee, and Doug Lamborn (R-CO), Chairman of the Subcommittee on Strategic Forces, and U.S. Senators Roger Wicker (R-MS), Ranking Member of the Senate Armed Services Committee, and Deb Fischer (R-NE), Ranking Member of the Subcommittee on Strategic Forces, noted that the latest information indicates that China has surpassed the United States in the number of land-based fixed and mobile ICBM launchers. The National defense Authorization Act requires the U.S. Strategic Command to notify Congress when the number of ICBMs, nuclear warheads, or ICBM launchers in China surpasses the United States.
 
The Representatives note that “The head of U.S. Strategic Command has informed us that China has surpassed the U.S. in the number of ICBM launchers – this should serve as a wake-up call for the United States. It is not an understatement to say that the Chinese nuclear modernization program is advancing faster than most believed possible.  We have no time to waste in adjusting our nuclear force posture to deter both Russia and China. This will have to mean higher numbers and new capabilities.”

Under President Xi’s rule, China has nearly tripled its defense spending.  His nation now has the largest army and navy on the planet, and is urgently preparing them for combat against advanced adversaries, particularly the United States. Most experts believe that 2027 is the target date for having them ready for  a major conflict.

Rogers has opened hearings on China’s quickly growing threat. He notes that “China is the most challenging national security threat America has faced in 30 years.  If we fail to acknowledge that, and take immediate action to deter it, the next 30 years could be devastating for our nation. “

China’s  conventional (non-nuclear) advances are deeply troubling as well.

America’s technological edge, once considered Washington’s strongest asset, has eroded. China has leaped ahead of the U.S. in crucial areas such as hypersonic technology, quantum computing, and artificial intelligence. It’s space program is on a par with America’s in most areas.

It is clear that these developments are not made with self-defense in mind.  According to Rogers, “The CCP is not building these new and advanced military capabilities for self-defense. 
In recent years, the CCP has used its military to push out its borders, threaten our allies in the region, and gain footholds on new continents. In violation of international law, the CCP has built new, and commandeered existing, islands in the South China Sea, where it has deployed stealth fighters, bombers, and missiles. It continues to intimidate and coerce Taiwan, most recently by surrounding the island with naval forces and launching endless fighter sorties across the centerline. In recent years, the CCP also established a space tracking facility in South America to monitor U.S. satellites, as well as an overseas naval base just miles from our own on the strategically vital Horn of Africa.”

Concern is being expressed not just by Congress, but by international observers as well.  The BBC recently warned that “Many Western observers now believe a profound shift in the global balance of military power is under way.”

The Biden Administration continues to lag behind in responding to the growing crisis. Indeed, its latest budget ignored the consensus that the U.S. Navy needs to expand to respond to the threat.

Photo: Soldiers assigned to a brigade under the PLA Rocket Force erect a ballistic missile launcher into position on the launching truck at night during a recent realistic training exercise. (eng.chinamil.com.cn/Photo by Zhang Feng)

While the 14th Amendment obligates the States to provide equal protection, “the Supreme Court has held that [e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment…(t)hus, in Bolling v. Sharpe,  a companion case to Brown v. Board of Education… (t)he Court wrote, ‘The Fifth Amendment…does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive.'”

Thus, the Federal government has the same obligation to provide “equal” – not “equitable” – protection to all as do the States.

In prior articles, we have discussed the lawless actions of the Biden Administration.  From the illegal financial giveaways of the American Rescue Plan, to the illegal Student Loan Forgiveness program and the equally illegal vaccine mandate for private employers,   one theme in particular has been consistent for the two full years of this Administration – their defiance of the Constitutional limits of their authority.

Nowhere is this lack of respect for the law more apparent than in the area of Equity Policy.  Despite centuries of American jurisprudence “prohibiting governmental denial of equal protection,” and insuring equality before the law for all persons, regardless of race, gender or religion, Joe Biden and his minions continue to ignore the US Constitution, and deny equal protection to many people on the very basis of race, gender and religion.

On January 20, 2021, the date of his Inauguration, Biden issued an Executive Order on “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,”   

which declared that “the policy of my Administration (is to) pursue a comprehensive approach to advancing equity for all…(a)ffirmatively advancing equity…is the responsibility of the whole of our Government.”  

To that end, Biden ordered the “Domestic Policy Council” to “coordinate efforts to embed equity principles, policies, and approaches across the Federal Government.”  He also established an “Equitable Data Working Group,” since “(m)any Federal datasets are not disaggregated by race, ethnicity, gender, disability, income, veteran status, or other key demographic variables…(a) first step to promoting equity in Government action is to gather the data necessary to inform that effort.”

In other words, a governmental agency was tasked with forcing federal agencies to adopt equity principles.  Further, a federal database was established to enumerate our divisions along racial, gender and “other key demographic variables” to determine who will receive the advantages of Equity – and who will not.

Not satisfied with this effort, on June 25, 2021, Biden issued a further Executive Order, this time on “Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce.” Under this order, “the Federal Government must be a model for diversity, equity, inclusion, and accessibility…Accordingly, the Federal Government must…provide resources and opportunities to strengthen and advance diversity, equity, inclusion, and accessibility across the Federal Government.”  This order requires “a coordinated Government-wide initiative to promote diversity and inclusion in the Federal workforce, expand its scope to specifically include equity and accessibility, and…develop and issue a Government-wide Diversity, Equity, Inclusion, and Accessibility Strategic Plan.”  

In essence, this means it is no longer the federal government’s policy to hire the best person for the job, regardless of their race, gender or other “key demographic variable.”  Instead, the very basis for hiring federal workers is their race, gender or ethnicity.

Still not satisfied with these wholesale assaults on the Fifth and Fourteenth Amendments, on February 16, 2023, Biden added yet another Executive Order – this time, on “Further Advancing Racial Equity and Support for Underserved Communities Through The Federal Government.”    According to this order, “(a)chieving racial equity…is not a one-time project.  It must be a multi-generational commitment, and it must remain the responsibility of agencies across the Federal Government.  It therefore continues to be the policy of my Administration to advance an ambitious, whole-of-government approach to racial equity…and to continuously embed equity into all aspects of Federal decision-making.”

This latest order goes on to establish “Agency Equity Teams” across a number of federal agencies, including State, Treasury, Defense, and Justice, “to coordinate the implementation of equity initiatives and ensure that their respective agencies are delivering equitable outcomes for the American people.”

 “Each Agency Equity Team shall be led by a designated senior official…charged with implementing my Administration’s equity initiatives…(t)he senior designee at each agency shall be responsible for delivering equitable outcomes…(e)ach Agency Equity Team shall support continued equity training and equity leadership development for staff across all levels of the agency’s workforce.”

It is also important to note that this latest Executive Order creates a “White House Steering Committee on Equity…which shall be chaired by the Assistant to the President for Domestic Policy…(t)he Steering Committee shall…coordinate Government-wide efforts to advance equity (and) coordinate an annual process to consult with agency heads on their respective agencies’ Equity Action Plans.”  

“Each agency head shall support ongoing implementation of a comprehensive equity strategy that uses the agency’s policy, budgetary, programmatic, service-delivery, procurement, data-collection processes, grantmaking, public engagement, research and evaluation, and regulatory functions to enable the agency’s mission and service delivery to yield equitable outcomes for all Americans.”

Think about the meaning of the directives embedded in this latest Executive Order.  A new level of bureaucracy has been created to insure that the Federal Government violates the Equal Protection of the law guaranteed under the Fifth and Fourteenth Amendments to the US Constitution.  Every major federal department must use all of their power and authority to insure that services are provided on the basis of “equity,” not “equality.”  

That means if you are a poor farmer in need of a government grant to save your crops, unless you are a member of a group considered “underserved,” the government will make sure that money goes to some other “underserved community” somewhere else.  Instead of hiring the most qualified candidate for a federal job, the Justice Department, or the State Department, or the Treasury Department will hire on the basis of “diversion and inclusion” principles to “deliver equitable outcomes.”  The best and the brightest need no longer apply –  the qualification that gets the job is being “diverse.”

How can this be legal?  the short answer is; It’s not.  These Executive Orders are utterly and completely unconstitutional, and a blatant violation of the principle upon which this nation was built and stands – equal protection for all.

Much like the prior actions of the Biden Administration which have been overturned by the US Supreme Court, these Equity initiatives will also be found to be unconstitutional overreaches in excess of the President’s authority.  But the cases have yet to be brought challenging the hiring of federal workers on “diversity and inclusion” principles, and for the denial of grants because the applicant was not the preferred race or gender.  

Until they are, and the Courts have had a chance to issue the necessary injunctions, expect the Biden Administration to continue its lawless pattern of unconstitutional behavior. 

Judge Wilson served on the bench in NYC

Illustration: Pixabay

“You keep using that word, I do not think it means what you think it means.”  Inigo Montoya

During the 1987 movie, The Princess Bride, Sicilian boss Vizzini “repeatedly describes the unfolding events as ‘inconceivable.’ After Vizzini attempts to cut a rope the Dread Pirate Roberts is climbing up, he yells out that it was inconceivable that the pirate did not fall.”  It is at this point that the swordsman Montoya utters the now-famous line quoted above.

The use of the word “Equity” has become the new “inconceivable” – that is, most people who use the term do not really know what it means.  Worst – many do not understand that the use of “Equity” principles is un-American, and patently unconstitutional.

According to the National Association of Colleges and Employers, “(t)he term ‘equity’ refers to fairness and justice and is distinguished from equality: Whereas equality means providing the same to all, equity means recognizing that we do not all start from the same place and must acknowledge and make adjustments to imbalances. The process is ongoing, requiring us to identify and overcome intentional and unintentional barriers arising from bias or systemic structures.”   

Then there is the definition provided by George Washington University; “Equity recognizes that each person has different circumstances and allocates the exact resources and opportunities needed to reach an equal outcome…Equity is a solution for addressing imbalanced social systems. Justice can take equity one step further by fixing the systems in a way that leads to long-term, sustainable, equitable access for generations to come.”

When described in this fashion, Equity sounds like a wonderful idea – after all, who wouldn’t want to “overcome barriers” and “address imbalance!”   

But then, we encounter this definition from Charles Lipson of the University of Chicago; “Equality means equal treatment, unbiased competition and impartially judged outcomes. Equity means equal outcomes, achieved if necessary by unequal treatment, biased competition and preferential judging. Those who push for equity…challenge America’s bedrock principle that people should be treated equally and judged as individuals, not as members of groups… (o)nly a powerful central government could impose the intensive—and expensive—programs of social intervention, ideological re-education and economic redistribution (necessary to achieve Equity). Only an intrusive bureaucracy could specify the rules for every business, public institution and civic organization (and) (i)f the results fall short, as they inevitably would, the remedy is obvious: more money, more rules and more indoctrination.”

In fact, according to leftist commentator Robert Kuttner,  “change will come only with massive restructuring of the power relations across labor, capital, and government, as well as class-based coalitions against racism.” 

Does this “massive restructuring,” “ideological re-education” and “economic redistribution”  sound compatible with what has generally come to be known as “the American way?”  According to Harvard University Professor Martha Minow, “(t)he terms ‘equality’ and ‘equity’ have become weapons in polarized political arguments…(t)he political volley over words neglects and obscures decades of litigation, policy, and academic work in both American law and comparative law. The U.S. Constitution prohibits government denial of ‘equal protection’ of the laws; state and federal statutes guard against discrimination on the basis of individual characteristics (e.g., race, gender, disability, age, sexual orientation or identity). The relevant state or federal authority does not use the term ‘equity’…courts have ruled that “classification” of individuals on the basis of certain personal characteristics (including race, gender, and religion) requires the most skeptical scrutiny.”

It is instructive at this point to read the actual words of the 14th Amendment to the United States Constitution; “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”    Notice this Amendment reads “equal protection” – not “equitable.”

The analysis concludes tomorrow

Judge John Wilson (ret.) served on the bench in NYC