Abortion, Guns and EPA Mel’s take for ILR

VIA SBINSIDER| January 2023

A group of about 150 people appeared to hear Mel Durschlag’s talk on the three Supreme Court Decisions from 2022 that he threaded together for their common legal reasoning. The event was sponsored by the highly-regarded SaddleBrooke Institute for Learning in Retirement as a one-off event, as opposed to a series of class meetings that normally compose their curriculum.

The speaker, Mel Durschlag had a long career in academia as a professor at Case Western Law school specifically focused on Constitutional law. His focus for this presentation was three cases decided in 2022 and the effect on the Court’s legitimacy in the mind of the public.

Specifically, Durschlag noted that in the opinions the Justices were pointing to the time frame of 1791 (or the adoption of the 14th Amendment in 1868) as the legal and political framework for their interpretation of the Constitution.  The Bill of Rights was added to the Constitution in 1791. 

Abortion and Dobbs

The Dobbs decision overturned the 1973 Roe v. Wade decision which Federalized the right to abortion based on a trimester formula. Today, each state has the right to set the limits on abortion.

Even in the 1971 decision, the dissenters pointed out that the right to an abortion was not found in the Constitution. The majority held that based on the 1965 ruling Griswold V Connecticut, that a right to privacy was established in that married adults should have unrestricted access to contraceptives. With Griswold, there was no upwelling of public opprobrium as there was when Roe was decided.

Currently, Arizona has a ban on abortion after 15 weeks of gestation.

Bruen and Guns

Next Durschlag took on the New York State v. Bruen decision which overturned a New York law that restricted the right to carry a firearm in public. Relying in the District of Columbia v Heller decision, the court held that the New York law was overly restrictive, again, based on the laws and common practice in 1791 when the 2^nd amendment was adopted.

EPA and the Delegation of Congressional powers

Last, Durschlag explained the meaning of the repeal of the Chevron doctrine in the West Virginia v. EPA decision. Under administrative law passed by Congress, executive agencies could promulgate rules based on laws passed by Congress. In effect, the agencies could “fill in the blanks” of a broad law like the Clean Air Act in order to make it effective in practice. Justice Gorsuch’s opinion held that Congress could not completely delegate Article 1 powers to an executive agency.

Legitimacy in Question

Finally Professor Durschlag opined on the legitimacy of the courts when they act to overturn stare decisis and their commitment to consistency in the rule of law. He remarked that the strum and drang is not new, with FDR trying to pack the courts which was blocked by his own fellow Democrats despite overwhelming majorities in both Houses.

The reception to the presentation was mixed. The crowd had a liberal bias and one comment was “who protects my rights when I’m in a public place and some lunatic starts shooting?” Durschlag replied that “the Constitution protects you from the government-not fellow citizens. “

Another comment was that Dobbs was going to “force millions of women into poverty” as if it was axiomatic that bearing a child that is unwanted would automatically result in poverty. The comment went unchallenged, but the arrogance and hubris inherent in the question was obvious to some.

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