Boaz’ s Blog 011 How to Defend Against Dangerous Actions of the Trump Administration: Assert the Right to Safety
Since the presidential election, my tension and anxiety has risen almost daily as president elect Trump has announced his choices for cabinet positions: A climate change denier as head of EPA; a leading opponent of the Affordable Care Act as Secretary of Health and Human Services; an opponent of Energy regulation as Secretary of Energy; a neurosurgeon to lead Housing and Urban Development; a Secretary of Labor who opposes the minimum wage; an Attorney General nominee who once was denied a federal judgeship because of racist comments; a Secretary of Education who is a proponent of school choice; a Secretary of Commerce who has threatened tariffs on Chinese imports; a Secretary of the Treasury who opposes parts of Dodd-Frank legislation and regulations. And, then, there is the president elect who, without apparent cause, has demeaned the CIA for its analysis which uncovered Russian hacking in the recent presidential elections; who has publicly doubted climate change; who has disparaged the non-proliferation agreement with Iran; who has dismissed the importance of his personal attendance at daily intelligence briefings.
The cumulative impression of the above choices is that of an administration which will take actions and non-actions that will affect the safety of all citizens. The non-actions of executive departments can be just as important as overt unsafe actions, for if the executive branch chooses not to enforce existing laws and regulations, it will, be as if legislation was never enacted.
How will Americans defend themselves against dangerous and unsafe executive actions? By invoking the right to safety. Before you respond with: there is no constitutional right to safety, remember that rights are inalienable and, therefore, exist independently from the form of government; in this case, the Constitution. So, while there may not be a clearly stated constitutional right to safety, there is still a fundamental right to safety; Constitution or no Constitution.
Even though there is not a stated right to safety in the Constitution, there is an untested legal argument that the Ninth Amendment does, in fact, protect the rights of the Declaration of Independence as retained rights. Allow me to make that argument now, so that activist lawyers, whose numbers will undoubtedly proliferate in the next four years, and federal District Court judges will be ready to delay or stop those unsafe actions and non-actions of a dangerous Trump administration.
The Ninth Amendment states that, “The enumeration of certain rights in the Constitution shall not be construed to deny or disparage others retained by the people.”
Allow me a simple question which, I believe, most of you can either answer or will have no difficulty in agreeing with the answer; Question: What rights were unanimously proclaimed by members of the Continental Congress in 1776? Answer: The rights of the Declaration of Independence. (Equality, Life, Liberty, the Pursuit of Happiness, Happiness, Safety, Democracy based on securing the rights of the people, and the right to alter or abolish the form of government if it becomes destructive of its human rights’ purpose.)
Is it fair to assume that the rights of the Declaration of Independence are among the “retained” rights referred to in the Ninth Amendment (ratified in 1791)? If your answer is yes, as is mine, then the right to safety is a retained right and should therefore be on equal standing to the rights written in the Constitution. How important was safety to the signers of the Declaration? The words of the Declaration give a clue: After a government is abolished, the people should “institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
Universal healthcare, a healthful environment, a secure national defense, economic and social stability—all under the umbrella of the right to safety–are now, more in peril than at any time in recent history. Had the right to safety been written into the Constitution, we would all feel more secure.
Can it be reasonably argued that the governmental denial of the right to safety is a violation of the Ninth Amendment? I believe so. To paraphrase the Ninth Amendment: Just because certain rights are written in the C0nstitution should not mean that other retained rights are to be denied or disparaged. However, the history of the United States has proved different. Social, cultural, educational, and economic equality have not been achieved. Even the hallowed right to democracy has been denied and disparaged by the Constitution’s Electoral College and the plutonian consequences of Citizens United. Ironically, only those rights written in the Constitution have been enforced by the judiciary. The effect is that retained rights have been denied and disparaged because they are not a stated part of the Constitution—contrary to the stated intent of the Ninth Amendment.
Even if a court were to rule that there is no remedy for a violation of the Ninth Amendment, or that it is only an advisory amendment of some sort, the fact remains that a governmental unsafe action would violate the right to safety. A court could rule in favor of a plaintiff, independent of an alleged Ninth Amendment violation. The advantage to bringing a case under the Ninth Amendment, is that it would establish federal jurisdiction. Even if jurisdiction were to be denied by the trial court, the issue would provide a basis for appeal to the United States Supreme Court.
So how can a federal court delay or stop an unsafe action of the federal government? A federal court can provide injunctive relief. In the event of an alleged unsafe action, it can begin by issuing a temporary restraining order for the government to desist action until a full hearing is held, and then issue a permanent restraining order for the government to stop the unsafe action. In the case of alleged unsafe non-enforcement of federal laws or regulations, the court can order the government to enforce the law.
In the case of a court ruling that a government has committed an unsafe action or has been responsible for an unsafe non-enforcement of the law, the government would likely appeal. Because of the unusual and novel nature of a Ninth Amendment argument, the chances for the Supreme Court to grant certiorari (review) would be improved. Even, if a case, were eventually lost, the delay, if long enough, could be just as valuable as a win; depending on the winner of the next presidential election.
In conclusion, it is time for activist attorneys and activist judges to take another look at the Ninth Amendment and to creatively apply it to cases where the issue is safety of federal governmental action or non-enforcement of laws or regulations which jeopardize safety.
The above essay gives yet another reason why Americans need an Article Five Convention—to amend the Constitution to include the rights of the Declaration of Independence.
If you found this essay to be provocative, you will likely appreciate my revolutionary book, Seven Rights for Citizen Slackers. Available at Amazon, Lulu, Barnes and Noble, and Apple ibook; in paperback and ebook.