Legislative Court Shopping +

This item didn’t get the press I thought it deserved. It got some coverage but certainly not of the “above the fold” variety. More concerning than the subject matter itself is that I feel it is part of a larger undemocratic pattern and process. On Tuesday Federal Judge James M. Moody, Jr. struck down the Arkansas law banning transgender care (more specifics below) for people under 18.


The political question that comes to mind is why would a legislator, who is subject to reelection, vote for a law that is unpopular with the people at large and is likely to be struck down by the courts (the Supreme Court being the possible exception).

The answer to the first part is gerrymandering with a “side dish” of leadership controlling the reelection purse strings. Many red states (where these types of laws are getting passed) are so gerrymandered that the vast majority of sitting state legislators are in safe districts. Also, if they want to keep it that way they had best vote as they are told to. Add to that the fact that few state legislative candidates can raise large sums of money on their own and are therefore dependent on leadership controlled money.

The voters have a terrible track record of holding legislators accountable for passing laws that are subsequently declared unconstitutional. My home state of North Carolina is one of the most outrageous examples. The Republicans took control of the General Assembly after the 2010 Tea Party wave election. In the years after that they passed over a dozen laws that, as their Democratic chamber mates had warned them, were declared unconstitutional. That was a waste of time and the subsequence defense of them in court (which was paid for by the taxpayers) was a waste of money. Yet, today, largely due to gerrymandering, they have a super majority in both chambers. Since they control the redistricting process that doesn’t look like it will change anytime soon despite the fact that North Carolina is pretty much a 50-50 red-blue state.

Now on to the matter of passing a law that appears destined to fail in the initial courts. I think in many cases the Republicans actually invite the court challenges hoping to make it to the Supreme Court where political ideology appears to trump the law. In states where the Attorney General is unwilling to defend the laws in court the Republicans have passed laws enabling them to hire outside counsel. That’s a nice way to reward campaign contributors. As to the Supreme Court, look no further than the Dobbs or the Shelby County decisions. If they win at the Supreme Court, they can claim to be heroes to their well out of the mainstream base. If they lose the voters by and large don’t hold them accountable. Politically there is no downside.

Despite all the rhetoric you hear about fighting waste, fraud and abuse in government they really could care less about wasting what they view as OP money.

Now let’s get back to the law in question for a bit. The law calls for the prohibition of what it defines as transgender treatment for those under 18. The penalties for violation include actions against the offending physician’s license and civil liability. The law prohibits the use of puberty blockers and hormones. Puberty blockers are often used to treat patients totally unrelated to gender transition. If you support this law, you may very well be denying medical care to your daughter, granddaughter or great-granddaughter. It makes no provision for parental input in the decision-making process. Family values? Parental rights?

In what can only be seen as a huge legal overstep the law makes it a crime for a physician to refer a patient to an out-of-state provider. We’ve seen similar provisions in anti-choice laws. If you accepted this concept any individual state could effectively overrule all the others and make their residents little more than slaves.

It’s time for me to go today but can you see why I’m taking this seriously? I hope I got a few more voters to also do so!

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