Breaking stories this morning:’
— First, Rep. Deven Nunes is “temporarily stepping aside” from the House Intelligence Committee’s investigation of Russia’s interference in the 2016 election, according to the AP. Details to come. According to MSNBC, Trump himself wanted this to happen because he’s “concerned about his dropping poll numbers.” We’ll learn more as the day goes on, but it seems more likely that this decision probably comes from Prince Jared.
Nunes released a statement saying that left-wing groups had made baseless charges against him to the ethics committee, and he’s made this decision even though the complaints are politically-motivated. Democratic ranking member gave a brief statement in which he said he appreciates Nunes’ decision and looks forward to working with Rep. Conaway (R-Texas) who will now lead the investigation.
— Second, Paul Ryan held a press conference this morning to pretend that Trump-Ryancare is still alive. Supposedly the House is reaching consensus around a high risk pool–something that would never work to lower premiums for everyone. They’re all going home for Easter break soon, so we’ll see what happens when they come back. IMHO, this is just a face-saving effort by Ryan.
The Dallas News has a “developing” story on Conaway taking over: Texas’ Conaway takes over Russia meddling probe, as embattled Intel chairman steps down.
WASHINGTON — Texas Rep. Mike Conaway is taking the helm of the House-led probe into Russian meddling in the 2016 presidential election, after embattled Intelligence Committee Chairman Devin Nunes agreed to step aside Thursday.
Conaway, a Midland Republican, is chairman of the House Agriculture Committee, and a member of the Intelligence Committee. He chaired the Ethics Committee several years ago — considered one of the more thankless tasks in Congress, given its role in policing and occasionally punishing colleagues.
He’s one of the few CPAs in Congress. Before his election in 2004, one of his clients was the oil firm owned by future president George W. Bush.
Also happening today:
As Donald Trump gets set to host Chinese President Xi Jinping for a tête-à-tête at the Mar-a-Lago club in Florida on Thursday, experts say it’s time for the U.S. leader to let his past hostile comments about the Asian powerhouse fade with the Florida sunset.
Trump must start building a solid personal relationship with his counterpart and open a starter dialogue on a number of sensitive issues between the two nations, analysts add.
“Well, it’s going to be very interesting, nobody really knows, we have not been treated fairly on trade, no presidents taken care of that the way they should have, and we have a big problem on North Korea, so we’re going to see what happens,” Trump told Fox News on Thursday about his upcoming meeting with Xi.
“I’ll tell you we’ll be in there pitching, and I think we’re going to do very well” Trump added.
While the Chinese are strategic and conservative in their policy and diplomacy maneuvers, Trump has earned his reputation as brash and somewhat unpredictable, often venting governing frustrations on Twitter in 140 characters or less.
“[The Chinese] know that you cannot conduct foreign policy by Twitter, by tweeting, and brashness,” former Ambassador to China Max Baucus told NBC News.
I’m sure the Chinese know that all they have to do is say nice things about Trump and he’ll give away the store. He’s going to get played. I just hope it won’t be too damaging.
Mitch McConnell is determined to get Neil Gorsuch through the Senate despite a Democratic filibuster, and it looks like he will exercise the so-called “nuclear option.” The sad fact that Gorsuch is obviously guilty of plagiarism doesn’t seem to matter to Republicans.
Now I want to move on to what I believe is the most important story for the U.S. and the world right now.
After yesterday, I’m convinced that nothing that happens in the news is more important than the fact that the man who is pretending to be “president” is not only completely unqualified but also mentally unfit. There is something seriously wrong with Trump’s cognitive processes, and whether it’s dementia, drugs, or simple stupidity, we’re all in deep trouble.
Did you read the transcript of the interview Trump gave to The New York Times yesterday? I want to quote two sections of it here. During a discussion of the Gorsuch nomination, Trump claimed that Democrats have told him privately that they really don’t object that much to the pick, and here is his example:
TRUMP: Elijah Cummings [a Democratic representative from Maryland] was in my office and he said, “You will go down as one of the great presidents in the history of our country.”
TRUMP: And then he went out and I watched him on television yesterday and I said, “Was that the same man?”
TRUMP: But I said, and I liked him, but I said that was really nice. He said, in a group of people, “You will go down as one of the great presidents in the history of our country.” And then I watched him on television and I said, “Is that the same man that said that to me?”
Did Trump somehow confuse Elijah Cummings with some other black man? WTF is he talking about, why don’t these reporters press him on it? This “interview” could easily pass as an evaluation of a mental patient by two psychiatrists. Here’s another section in which Trump claims that the story of Susan Rice’s unmasking of U.S. persons when she was Obama’s National Security Adviser is “a massive story.”
I think the Susan Rice thing is a massive story. I think it’s a massive, massive story. All over the world, I mean other than The New York Times.
HABERMAN: We’ve written about it twice.
HABERMAN: We’ve written about it twice.
TRUMP: Yeah, it’s a bigger story than you know. I think —
HABERMAN: You mean there’s more information that we’re not aware of?
TRUMP: I think that it’s going to be the biggest story.
THRUSH: Why? What do you think —
TRUMP: Take a look at what’s happening. I mean, first of all her performance was horrible yesterday on television even though she was interviewed by Hillary Clinton’s P.R. person, Andrea Mitchell [the NBC News journalist]. Course you’ve been accused of that also.
HABERMAN: Mostly by you, though.
TRUMP: No, no, no. Mostly by a lot of people. So you know, we’ll see what happens, but it looks like it’s breaking into a massive story.
THRUSH: What do you think are — what other shoes are there to drop on this?
HABERMAN: Yeah, what else could we learn on this?
TRUMP: I think you’re going to see a lot. I think you’ll see a lot.
HABERMAN: In terms of what she did and in terms of [unintelligible]?
TRUMP: I think in terms of what other people have done also.
TRUMP: I think it’s one of the biggest stories. The Russia story is a total hoax. There has been absolutely nothing coming out of that. But what, you know, what various things led into it was the story that we’re talking about, the Susan Rice. What’s happened is terrible. I’ve never seen people so indignant, including many Democrats who are friends of mine. I’ve never seen them acting this way. Because that’s really an affront on them, you know, they are talking about civil liberties. It’s such an affront, what took place.
THRUSH: What other people do you think will get ensnared in this? Can you give us a sense? How far this might extend
HABERMAN: From the previous administration.
TRUMP: I think from the previous administration.
THRUSH: How far up do you think this goes? Chief of staff?
TRUMP: I don’t want to say, but —
TRUMP: I don’t want to say, but you know who. You know what was going on. You probably know better than anybody. I mean, I frankly think The Times is missing a big thing by not writing it because you’re missing out on the biggest story there is.
Why are these NYT reporters (Maggie Haberman and Glenn Thrush) patronizing Trump like this? I guess they are drawing him out to demonstrate that he’s a simpleton, but shouldn’t this be treated as a national emergency? The “president” is not well. No wonder there are always multiple “minders” in the room when he’s speaks publicly. Why are so many people pretending that this is somehow normal? We are facing multiple foreign crises right now and we have an incompetent “president” whose 36-year-old son-in-law appears to be running the government.
Yesterday’s Trump press conference with King Abdullah of Jordan was just as embarrassing. Trump spouted a lot of stream-of-conscientious nonsense about how disturbed he was by the chemical attack in Syria and that he had changed his point of view, and reporters pretended he had actually said something meaningful. Here’s the NYT story, for example. Yet Trump said nothing to explain what his policy was previously or what he had changed it to. He even went through that song-and-dance about how he won’t tell anyone ahead of time about what he’ll do “militarily.” This man is nuts, and the press should start saying so.
As Rachel Maddow pointed out last night, Trump’s Secretary of State Rex Tillerson is every bit as incompetent as the “president.” Tillerson made a statement a couple of days ago that basically gave Asad permission to do whatever he wanted to the Syrian people. Business Insider reports:
Tillerson told reporters while he was in Turkey last week that the “longer-term status of President [Bashar] Assad will be decided by the Syrian people.”
The remark signaled a shift in the US’s official position toward the Syrian strongman. Though they were criticized for failing to act against Assad, President Barack Obama and former Secretary of State John Kerry had long called for Assad to step down in a monitored transition of power.
The US’s ambassador to the UN, Nikki Haley, took an even stronger position than Tillerson, telling reporters that the administration’s “priority is no longer to sit there and focus on getting Assad out.”
Haley’s comments stood in stark contrast to those of the previous UN ambassador, Samantha Power, who directly confronted Assad and his Russian and Iranian allies during a UN Security Council meeting in December with a fierce address.
“Three member states of the UN contributing to a noose around civilians. It should shame you. Instead, by all appearances, it is emboldening you,” Power said at the time. “You are plotting your next assault. Are you truly incapable of shame?”
And of course there’s the growing threat from North Korea, which Tillerson also likely aggravated. The Week: Rex Tillerson says the U.S. has ‘spoken enough about North Korea,’ won’t comment on latest missile launch.
Not long after the news broke that North Korea launched a missile into the Sea of Japan, Tillerson released a brief statement Tuesday night confirming the launch of “yet another intermediate-range ballistic missile,” adding two very terse sentences: “The United States has spoken enough about North Korea. We have no further comment.” If you seek words of comfort in these uncertain times or angry declarations and threats of retaliation, Tillerson made it clear you had better look elsewhere.
If this is the secretary of state’s way of hinting he wants out of the job, Tillerson should know by now that all he needs to do is tag Jared Kushner, say, “You’re it,” and call it a day. Catherine Garcia
Here’s Charles M. Blow: Creeping Toward Crisis.
I am racked with anxiety that our buffoonish “president” — who sounds so internationally unsophisticated and who is still operating under a cloud of illegitimacy — is beginning to face his first real foreign crises.
What worries me most is that he seems to have no coherent plan, at least not one that he is willing or able to communicate. “I don’t show my hand” isn’t a strategy to conceal a plan as much as one to conceal the absence of a plan.
His statements are all bluster and bungling and bosh. Our commander in chief is not in full command of his emotions or facts or geopolitics.
We may sometimes think that the absurdity of Trump’s endless stream of contradictions and lies ends at the nation’s borders, but it doesn’t. The world is watching, and the world is full of dangerous men who see killing as a means of maintaining and exerting power. They see in Trump a novice and know-nothing, and they will surely test his resolve.
Trump has exposed himself to the world as an imbecile and burned through American credibility with his incessant lying. Even many of our allies seem confused and worried about where we stand and how we plan to proceed.
Trump is full of pride, obsessed with strongman personas, and absent of historical and geopolitical perspective. This is the worst possible situation. The man who could bring us into military engagement is woefully deficient in intellectual engagement.
Please go read the rest at the NYT.
It will clearly be another busy and chaotic day in politics. What stories are you following?
As usual these days, I don’t know where to begin. We are living through something so strange and unprecedented that I just find myself shaking my head at each new revelation. Once again, I’m going to illustrate this post with baby animal pics, just because.
One crazy-making thing for me is the fact that the Senate is currently grilling a candidate for the Supreme Court who has been nominated by a man who may have committed treason. Neil Gorsuch should not be approved until the investigation of Trump’s involvement with Russia’s interference in the election is complete. I’m actually having difficulty watching the Gorsuch hearing. The word I think of when I look at and listen to him is “oily.” I hope some of you are following the questioning and can share your impressions.
I did watch the entire “Comey hearing” yesterday, and I’m still processing the latest revelations. I expect the press will be on this now and news outlets will compete to give us new information on a daily basis. We may have to function during political chaos for months and years to come. I can only hope the Republicans begin to develop spines as the 2018 election gets closer.
While the House Intelligence Committee testimony by FBI Director James Comey and NSA Director Mike Rogers was still going on, White House spokesman Sean Spicer bizarrely continued to defend Trump’s accusation that Obama wiretapped Trump Tower. He also claimed that Michael Flynn was only “volunteer” for the Trump campaign and that Paul Manafort had only a “limited role.”
During the campaign, Flynn was a top adviser and, at one point, was vetted to become Trump’s running mate. He later accepted a job as national security adviser, one of the most important roles in the West Wing, before resigning 24 days into the new administration, after it was revealed that he had not been entirely forthcoming about his conversations with Russian ambassador Sergey Kislyak.
“General Flynn was a volunteer of the campaign,” Spicer said on Monday, brushing off concerns that Flynn had been a high-level Trump campaign adviser with any degree of influence while maintaining ties to Russia.
White House Press Secretary Sean Spicer incorrectly diminished the role of former Trump campaign chairman Paul Manafort, remarks made at the same time as a House Intelligence Committee hearing investigated whether campaign aides colluded with Russia during last year’s presidential race.Spicer, pressed on a number of Trump associates’ connections to Russian operatives, claimed Manafort played a “limited role (in the campaign) for a very limited amount of time.”
Manafort was hired by the Trump campaign in March 2016 to lead the delegate operation on the floor of the Republican National Committee in Cleveland.
Manafort was promoted in May to campaign chairman and chief strategist. And when campaign manager Corey Lewandowski was fired in June, Manafort — who butted heads with Lewandowski — was widely seen as the campaign’s top official.
Manafort is largely credited with securing Trump the Republican nomination, through a mix of deep ties in the Republican establishment and tireless organizing to win the Republican delegate fight which almost derailed Trump one year ago.
I wonder why the White House is so desperate to disown Manafort, who is a close friend of Trump buddy Roger Stone and has lived in Trump Tower since for more than a decade? The Washington Post may have provided a partial answer this morning: New documents show Trump aide laundered payments from party with Moscow ties, lawmaker alleges.
KIEV, Ukraine — A Ukrainian lawmaker released new financial documents Tuesday allegedly showing that a former campaign chairman for President Trump laundered payments from the party of a disgraced ex-leader of Ukraine using offshore accounts in Belize and Kyrgyzstan.
The new documents, if legitimate, stem from business ties between the Trump aide, Paul Manafort, and the party of former Ukrainian president Viktor Yanukovych, who enjoyed Moscow’s backing while he was in power. He has been in hiding in Russia since being overthrown by pro-Western protesters in 2014, and is wanted in Ukraine on corruption charges.
The latest documents were released just hours after the House Intelligence Committee questioned FBI Director James B. Comey about possible coordination between the Trump campaign and Moscow. The hearing that also touched on Manafort’s work for Yanukovych’s party in Ukraine.
Comey declined to say whether the FBI is coordinating with Ukraine on an investigation of the alleged payments to Manafort.
More details at the link.
Another Russia fan who is still in the Trump administration is good old Rex Tillerson. Have you hear about the recent changes to his travel schedule? This seems odd after what we heard at the Intel Committee hearing yesterday.
America’s smaller European allies have expressed concern about President Donald Trump’s mixed signals on whether he would protect them against Russia.
The uncertainty threatened to deepen late Monday when U.S. officials said that Secretary of State Rex Tillerson planned to skip what would have been his first official meeting with NATO in April.
However, Tillerson will travel later in the month to a series of unspecified meetings in Russia, a State Department spokesman confirmed to NBC News.
Here’s an interesting opinion piece by Walter Shapiro at Roll Call: James Comey and the Art of the Shiv.
Before Comey returned to his offstage role, he dropped enough bombshells to solidify his reputation as the most significant FBI director since J. Edgar Hoover. Joined by his crusty sidekick, Adm. Michael Rogers, who heads the National Security Agency, Comey gave an artful lesson in how to stick a shiv into a sitting president without ever raising his voice or making a specific accusation.
Early in the hearing, Comey shredded Trump’s cockamamie Twitter claim that Barack Obama had wiretapped him before the election. As Comey solemnly stated, “I have no information that supports those tweets and we have looked carefully inside the FBI.”
Comey had arrived at the hearing with his own smoking gun that he brandished at the beginning of his opening statement — official confirmation that the FBI is investigating “any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russian efforts.”
Comey’s offensive against the White House even extended to refuting a presidential tweet about the ongoing hearing. Connecticut Democratic Rep. Jim Himes asked Comey to respond to a Trump tweet claiming, “The NSA and FBI tell Congress that Russia did not influence the electoral process.” Comey dismissed Trump’s fanciful version of the truth by saying, “It wasn’t certainly our intention to say that today.”
Shapiro thinks Comey’s “role in upending” Hillary Clinton gives him credibility against Trump. I’m not so sure. Still, the piece is worth a read.
This morning Trump went to Capitol Hill in person and tried to convince hostile House Republicans to vote for his disastrous health care bill. If this is how he negotiates deals, it’s surprised he didn’t have more than 6 bankruptcies.
The Washington Post: Trump to GOP critics of health care bill: ‘I’m gonna come after you.’
Assuring Republicans they would gain seats if they passed the bill, the president told Rep. Mark Meadows (R-N.C.), the chairman of the House Freedom Caucus, to stand up and take some advice.
“I’m gonna come after you, but I know I won’t have to, because I know you’ll vote ‘yes,’” said the president, according to several Republican lawmakers who attended the meeting. “Honestly, a loss is not acceptable, folks.”
But after the meeting, Meadows told reporters that the president had not made the sale, that the call-out was good-natured, and that conservative hold-outs would continue pressing for a tougher bill.
“I’m still a ‘no,’” he said. “I’ve had no indication that any of my Freedom Caucus colleagues have switched their votes.”
House Republicans made some changes to the bill yesterday, but according to Ezra Klein: The new Republican health care bill doesn’t fix the old bill’s problems.
There are three problems you could have imagined the manager’s amendment to the American Health Care Act trying to fix:
- The Congressional Budget Office estimates the AHCA will lead 24 million more Americans to go uninsured, push millions more into the kind of super-high-deductible care Republicans criticized in the Affordable Care Act, and all that will happen while the richest Americans get hundreds of billions of dollars in tax cuts. Voters — including the downscale rural whites who propelled Donald Trump into the presidency — aren’t going to like any of that.
- Virtually every health policy analyst from every side of the aisle thinks the AHCA is poorly constructed and will lead to consequences even its drafters didn’t intend. Avik Roy argues there are huge implicit tax increases for the poor who get jobs that lift them out of Medicaid’s ranks. Bob Laszewski thinks the plan will drive healthy people out of the insurance markets, creating even worse premium increases than we’re seeing under Obamacare. Implementing this bill, as drafted, would be a disaster.
- As written, the AHCA is unlikely to pass the House, and so GOP leadership needs to give House conservatives more reasons to vote for the bill, even if those reasons leave the legislation less likely to succeed in the Senate. For this bill to fail in the House would embarrass Speaker Paul Ryan and President Trump.
Of the three problems in the AHCA, the third is by far the least serious — but it’s the only one the manager’s amendment even attempts to solve. These aren’t changes that address the core problems the GOP health care bill will create for voters, insurers, or states; instead, it’s legislation that tries to solve some of the problems the bill creates for conservative legislators. It might yet fall short on even that count.
This is a trap for Republicans. Both the process and the substance of the American Health Care Act have revealed a political party that has lost sight of the fact that the true test of legislation isn’t whether it passes, but whether it works.
One more from Mother Jones on the Trump kleptocracy:
The week after Donald Trump’s inauguration, as questions swirled about the ethics ramifications of his refusal to divest from his business holdings, the Trump Organization announced that it had created a system for vetting new deals that could benefit the president. The company said it had tapped George Sorial, a Trump Organization executive, to be chief compliance counsel and Bobby Burchfield, a Washington-based corporate lawyer, to serve as an outside ethics adviser who would scrutinize new Trump company transactions for potential conflicts of interest. Trump’s private lawyer, Sheri Dillon, had pledged in early January that Trump would “build in protections” to assure Americans that his actions as president “are for their benefit and not to support his financial interests.” But two months into Trump’s presidency, there are serious questions about the rigor and transparency of the Trump Organization’s vetting process.
The first deal completed after Trump’s swearing-in suggested the vetting procedures are weak. This transaction, as Mother Jones reported, was the sale of a $15.8 million condo to a Chinese American businesswoman who peddles access to Chinese elites and who has ties to a front group established by China’s military intelligence apparatus. Angela Chen’s connections to Chinese officials and military intelligence evidently weren’t a cause for concern to the Trump Organization. The condo sale went through on February 21, with Chen apparently paying the $15.8 million in cash—roughly $2 million more than a unit one floor below. (Chen had lived in the same Trump-owned Park Avenue building in a smaller apartment for years. Jared Kushner and Ivanka Trump lived in the same building before their move to Washington.) Contacted by Mother Jones earlier this month, Burchfield, the Trump Organization’s outside ethics adviser, declined to comment on the sale or how it was vetted.
Robert Weissman, president of the good-government group Public Citizen, says the Chen deal raises questions about whether any real vetting happened. “Here, where we actually need extreme vetting, it appears to be absent,” he says. “It’s absolutely unclear if Burchfield or anybody else is doing anything pursuant to what they alleged they would do. And if they are, we don’t know what it is. But we should not presume it’s happening.”
On Thursday, Burchfield, a veteran corporate litigator who specializes in political law and largely represents Republican clients, declined to comment regarding the vetting process for new Trump deals. He would not talk about any transactions approved or denied since he began advising the Trump Organization. At Trump’s January 11 press conference, Dillon promised that the outside ethics adviser would provide “written approval” of any new deal, ostensibly explaining why a transaction does not pose a conflict for the president. Burchfield has not publicly disclosed details about the written approval process.
Read more details at Mother Jones.
What stories are you following today?
I’m in an absolute haze from a summer cold that popped up yesterday and sent me directly to bed. I’m trying to write and work right now but it’s not easy at all. I want to try to discuss a lot of upcoming things that will be important including the SCOTUS decision on the Texas Trap laws regarding abortion and abortion clinics. These law certainly create an undue burden and they reflect specific religious view rather than medical or biological science. Here’s a few reads to prepare us all because it’s important for all of us to understand this basic constitutional right.
Abortion opponents regularly talk as though no restriction is off the table when it comes to stripping away reproductive rights. And supporters of abortion rights don’t always set them straight. If we don’t know what our established rights are, we can’t defend them. Pro-choicers need to know why abortion is a constitutional right and what boundaries the U.S. Supreme Court has set out to protect it.
1. Abortion is protected by the rights to bodily integrity and to make decisions about family. The Court explained that decades ago.
The 14th Amendment prohibits states from depriving a person of liberty without due process of law. A person has the right to end a pregnancy without undue interference from the government because that right to liberty includes (1) the right to make decisions about family and (2) the right to bodily integrity.
However, in order to portray abortion rights as illegitimate, conservatives like to argue—inaccurately—that the Court legalized abortion in Roe v. Wade by inventing a right to privacy that is not grounded in the Constitution’s actual text.
In the pre-Roe contraception case Griswold v. Connecticut (1965), the Court did hold that “penumbras, formed by emanations” or various interpretations of the First, Third, Fourth, Fifth, and Ninth Amendments protect a right to privacy. But in deciding Roe, the Warren court located the right to privacy in the 14th Amendment’s explicit protection of the right to liberty. Regardless, the Court’s understanding of the rights that protect reproductive freedom expanded beyond just privacy decades ago.
Privacy is barely mentioned in Planned Parenthood v. Casey, which established the current law governing abortion rights more than 20 years ago. “The controlling word in the cases before us is ‘liberty,’” the decision explained. It was settled law prior to Roe that liberty includes “the right to make family decisions and the right to physical autonomy.”
Privacy is also a constitutional right, and it was indeed violated by the laws at issue in Roe and its companion case,Doe v. Bolton. Those laws required a woman seeking an abortion to share her reasons for wanting the procedure with legal or medical authorities to have any hope of receiving legal abortion care. However, the law and discourse around privacy at the time of Roe implied a woman should be permitted to use contraception or end a pregnancy because the state should not interfere in decisions made in secret with the permission of her doctor, husband, father, pastor, or others. Casey instead properly recognized that the 14th Amendment protects a person’s right to control her body and destiny.
So why has the idea persisted that all we’ve got is a privacy right made up out of thin air? A counterintuitive and less textually based right serves abortion opponents, but abortion rights advocates also have a history of telling us abortion restrictions are primarily a threat to privacy. As William Saletan documented in Bearing Right: How Conservatives Won the War on Abortion, in the run-up to Casey, pro-choice leaders emphasized privacy on the advice of pollsters and political consultants to appeal to anti-government, anti-welfare, anti-tax, and anti-integration sentiments. While reproductive rights lawyers argued to the Supreme Court that the Constitution’s protection of autonomy, bodily integrity, and equality protected abortion access, outside of court pro-choice leaders told the public the right at stake was privacy. But, ultimately, the Casey decision provided a much fuller discussion of why abortion is constitutionally protected by rights beyond privacy.
Abortion is protected by the due process clauses of the Fifth Amendment (which restricts the federal government) and the 14th Amendment (which was added to the Constitution to restrict the states). As Casey explained, “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Using the force of law to compel a person to use her body against her will to bring a pregnancy to term is a violation of her physical autonomy and decisional freedom—which the Constitution does not allow.
Follow the link to read about the other two basic rights that include:” 2. Any pre-viability ban is unconstitutional. Period.” and “3. Casey‘s “undue burden” standard is a meaningful protection of abortion rights when courts apply it properly.”
There’s no doubt that the Texas Trap Law creates an “undue” burden. Clinic closures have left the few remaining clinics overwhelmed.
The war on abortion access in Texas has already fundamentally shifted the landscape of women’s lives in the state. Now, the fallout continues: The closure of Planned Parenthood (PP) clinics in the state—which once served as primary sources of reproductive health care for women there—has left the few clinics remaining in west Texas underfunded, understaffed, and overwhelmed by demand.
According to new research, 60 percent of women receiving a low salary who were of reproductive age accessed health care through PP before the cuts and defunding which took place in 2013. The majority of those patients have since been directed to Texas Tech University and Midland County Health Services (MCHS) after PP’s clinics in west Texas closed—increasing demand at an overwhelming rate for their capacity to provide services.
“There are women [who] need these services but can’t afford them and we see as many as we can,” Michael Austin, director of MCHS, told Women’s Health Policy Report. “But the state program to help these folks along has basically evaporated. So I’m afraid there are probably a lot of folks flying under the radar who need care and aren’t getting it.” Austin pointed to the challenges of seeking funding in a state that has “eliminated or severely messed up” many of their programs which provide reproductive health care to women.
In 2011, the Texas State Assembly passed legislation which blocked funding to women’s health clinics, including Planned Parenthood, and cut the state’s family planning budget by two-thirds. Two years later, the draconian anti-abortion bill known as HB2 was signed into law by Governor Rick Perry, putting in place numerous obstacles meant to shutter clinics and restrict women’s access to safe and legal abortion. HB2 requires that abortion providers have admitting privileges at a local hospital and clinics are licensed ambulatory centers. It also bans surgical abortion after 20 weeks and medication abortion after seven. (Medication abortion is the most cost- and time-effective abortion procedure.)
HB2’s impact was immediate and drastic. 82 percent of family planning clinics closed. The number of abortion practitioners decreased by over 75 percent. Over half of the clinics performing abortion closed, which in turn drastically increased the time it would take for women to make an appointment to 28 days— essentially rendering the option of medication abortion moot. When it comes to clinics, Texas is in crisis.
The Supreme Court has declined to hear the Connecticut law banning assault weapon as well as the challenge to other state laws. This leaves the bans in place.
SCOTUS will look at certain key rights of jailed inmates that have illegal immigration status.
The Supreme Court announced Monday that it will take up a case exploring when immigrants detained solely for immigration violations have the right to be released from jail.
The justices agreed to consider a federal appeals court decision that essentially found detained immigrants were entitled to a bond hearing after six months in custody and every six months thereafter.
The high court’s announcement comes as immigrant rights advocates are awaiting a Supreme Court decision on the legality of President Barack Obama’s executive actions granting quasi-legal status and work permits to millions of immigrants who entered or stayed in the U.S. illegally.
In that case, the Obama administration is aligned with most immigrants rights groups. However, in the case the court said Monday that it would take up, the Obama administration is pressing for fewer rights for detained immigrants. In fact, the administration is asking the justices to overturn the 9th Circuit Court of Appeals ruling that found immigrants have the right to regular review of their detention.
The newly-accepted case, Jennings v. Rodriguez, could also explore when immigrants accused of ties to terrorism have to be released if authorities are having difficulty deporting them.
SCOTUS blog has some basic information on the remaining cases in the docket. Here’s a few of the remaining 13.
Between tomorrow morning, when the Justices will take the bench at ten o’clock, and the end of June, the Court is expected to issue thirteen rulings in cases involving everything from tribal-court jurisdiction to abortion, immigration, and the scope of federal laws prohibiting political corruption. Here are summaries of each pending case:
Dollar General Stores v. Mississippi Band of Choctaw Indians (argued December 7, 2015). This case stems from accusations by a thirteen-year-old member of the tribe that a manager at a Dollar General store within the tribe’s reservation had sexually molested him while the boy was interning at the store. The child and his parents filed a lawsuit against the manager and the store in tribal court, arguing that the store was liable for the manager’s conduct. The issue before the Court is whether the tribal court has jurisdiction over tort claims against defendants, like Dollar General, who are not members of the tribe.
Fisher v. University of Texas at Austin (argued December 9, 2015). This case, a challenge to the university’s consideration of race in its undergraduate admissions process, is on its second trip to the Court. In 2013, the Court sent the case back to the lower courts for a more critical look at whether the university really needed to consider race to achieve a diverse student body. After the Fifth Circuit once again upheld the policy, the Court agreed to weigh in. Unlike some of the Court’s other high-profile cases this Term, no one expects the Court to deadlock: Justice Elena Kagan is not participating, which in the wake of Justice Antonin Scalia’s death leaves the Court with just seven Justices to decide the case.
Utah v. Strieff (argued February 22, 2016). When a police officer stops a pedestrian in violation of the law, asks him for identification, discovers that there is a traffic warrant for his arrest, arrests him, and in the process of searching him discovers drug paraphernalia and methamphetamines, can the evidence found in the search of the pedestrian be used against him? Edward Strieff argues that it cannot: because the police officer’s stop was illegal, then anything obtained as a result of the stop is also tainted. The state, on the other hand, contends that the evidence should be admitted because it resulted from the lawful warrant for his arrest, rather than the illegal stop.
Taylor v. United States (argued February 23, 2016). The petitioner in this case, David Taylor, was part of a Virginia gang that robbed drug dealers. The two robberies that led to this case, however, did not yield any drugs – only cellphones, jewelry, and a small amount of money. Taylor was indicted on federal charges that he had violated the Hobbs Act, which punishes robberies and extortion but applies only when the defendant “obstructs, delays, or affects commerce or the movement of any article or commodity in commerce.” The question before the Court is whether the federal government is required to prove facts to show that the defendant’s conduct actually affects commerce.
Voisine v. United States (argued February 29, 2016). Stephen Voisine and William Armstrong, the other petitioner in this case, both pleaded guilty in state court to misdemeanor assaults on their respective domestic partners. Several years later, each man was charged with violating a federal law that prohibits the possession of firearms and ammunition by individuals who have previously been convicted of a misdemeanor crime of domestic violence. Voisine and Armstrong contend their state convictions do not automatically qualify as misdemeanor crimes of domestic violence because the state-law provisions can be violated by conduct that is merely reckless, rather than intentional.
Whole Woman’s Health v. Hellerstedt (argued March 2, 2016). This is a challenge to the constitutionality of two provisions of a Texas law regulating abortion in that state. One provision requires doctors who perform abortions to have privileges to admit patients to a local hospital; the other requires abortion clinics to have facilities that are comparable to outpatient surgical centers. Texas contends that these new laws are constitutional because they were intended to protect women’s health, while the challengers argue that the law was actually intended to close most clinics and therefore limit women’s access to abortions.
RJR Nabisco v. The European Community (argued March 21, 2016). The issue in this case is whether and to what extent the Racketeer Influenced and Corrupt Organizations Act (RICO), a 1970 law that was originally enacted to target organized crime, applies outside the United States. The European Community filed a lawsuit in the United States, seeking to hold RJR liable for what it says is the company’s role in an international money-laundering plot that harmed European countries. RJR counters that nothing in the law suggests that Congress intended it to apply to a situation like this. Justice Samuel Alito is almost certainly writing the Court’s opinion in this case, because he is the only Justice who has not yet written for the Court’s March sitting; based on the oral argument, that could bode well for RJR.
United States v. Texas (argued April 18, 2016). This case is a challenge to an Obama administration policy, announced in November 2014, that would allow some undocumented immigrants to apply to stay in the country and work legally for three years. Before the policy could go into effect, Texas and a large group of other states went to court to block its implementation, arguing that the administration lacks the authority to issue a policy like this. But before the Supreme Court can weigh in on that question, it will also have to agree that the states have the legal right, known as “standing,” to challenge the policy at all; the lower courts ruled that they did, because at least Texas would incur additional costs from the undocumented immigrants who would become eligible for driver’s licenses if the policy goes into effect.
Birchfield v. North Dakota (argued April 20, 2016). Twelve states and the National Park Service impose criminal penalties on suspected drunk drivers who refuse to submit to testing to measure their blood-alcohol levels. The question before the Court is whether those penalties violate the Fourth Amendment, which only allows police to “search” someone if they have a warrant or one of a handful of exceptions to the warrant requirement applies. Three drivers from North Dakota and Minnesota argue that neither of those conditions is met, and so the laws must fall.
Encino Motorcars v. Navarro (argued April 20, 2016). This case requires the Court to weigh in on the interpretation of the Fair Labor Standards Act, which generally requires employers to pay overtime to employees who work for more than forty hours in a week but also contains a variety of exceptions – including for a salesman whose primary job is selling or servicing cars. The respondents in this case are service advisors at a car dealership, who argue that they are not included in the exemption and are therefore entitled to overtime.
You can check out the rest on the link to SCOTUS blog. So, there’s a lot of interesting things coming down the pipe. We’ll definitely be following a lot of them.
There’s one piece of SCOTUS gossip that you might be interested in today. Check out this lede by David Badash: “DC Insider Report SCOTUS Justice Clarence Thomas Thinking of Retiring Throws Twitter Into Frenzy.”
The Washington Examiner Sunday afternoon posted a piece by DC insider columnist Paul Bedard that claims uber-conservative Supreme Court Justice Clarence Thomas “is mulling retirement after the presidential election, according to court watchers.” Those “court watchers” of course are unnamed, so the actual source of the claim is unknown.
It could be true, it could be false, but the implications of course are tremendous. Assuming Republicans in the Senate successfully keeps their vow to not confirm any SCOTUS justice nominated by President Obama, and wait until the next president takes office, this would mean the next president would automatically nominate not one but two justices to the nation’s top court, controlling its destiny for decades.
So naturally, Clarence Thomas began trending on Twitter.
Follow the link for the Twitter Frenzy.
What’s on your reading and blogging list today?
h/t to Delphyne
If you’re celebrating St. Patrick’s Day, have a good one!
I’m illustrating this post with portraits of unsmiling women by Amadeo Modigliani. Why, you may ask? It’s just a little symbolic protest of the constant barrage of “instructions” from the media on how Hillary Clinton should behave.
For months we’ve been hearing from various male commentators–and even from her very loud male opponent–that Hillary needs to stop “shouting.” As Lawrence O’Donnell condescendingly explained, with help from Chris Matthews, “the microphone works.” Hillary should speak more softly and modulate her “tone.” She’s not being “ladylike” enough for them.
Tsk tsk tsk
On Tuesday after Hillary swept five Democratic primaries, Howard Kurtz offered this:
Glenn Thrush agreed.
Britt Hume thought she looked angry.
And then there was Joe Scarborough:
Each of these men was resoundingly mocked on Twitter, but not one of them apologized. Instead they were defensive. They complained about being attacked for their helpful advice and provided examples of various negative things they had written about male candidates’ speeches. They refused to listen to women who tried to explain to them why such unsolicited advice is sexist. You can check out their timelines to read more.
Every woman has experienced this kind of “constructive criticism” again again. It’s not helpful, and refusing to listen to women explain why is also sexist. Some examples at Vogue.
Samantha Bee had a great response. She tweeted a photo of herself frowning into the camera and asked for responses. Lots of other women tweeted back unsmiling selfies. Click on the link to go to Mediaite and see some of the responses.
Connie Shultz at The National Memo: Hey, Hillary: Smile, Girl.
You know, the world would be a happier place if a girl would just smile more.
Just ask the guys on Twitter.Now, by “girl,” I mean a former U.S. senator and secretary of state who is likely to be the first female president of these allegedly united states.
As for “the world,” let’s narrow it down. We’re talking mean men who apparently spend much of their day breathing into paper bags because they’re not even allowed to ask a secretary to grab them a cuppa joe anymore without someone from HR signing them up for diversity training.
What? No more office wife? Evidence of hell in a handbasket right there. Just ask them.
So now we’ve got this Hillary woman going all presidential on us. She’s everywhere. Giving speeches. Declaring victories. Starring in one town hall after another. How much suffering must a good ol’ boy endure? ….
Some men hear what they want to hear, and too many men don’t want to hear from women at all. This is an unhappy century for them, and it’s only going to get worse. One grandmother barreling her way toward the presidency is bound to work up all kinds of other women who’ve had it up to here with the catcall mentality of men who measure our worth by our ability to make them feel better about their limited view of us.
Much more at the link.
Of course the advice about smiling and speaking in a softer tone are only the beginning of the unsolicited advice pundits have for Hillary.
Tuesday night, those who were lucky enough to be watching their primary coverage on MSNBC were treated to what may be a record-setter in scorching hot takes, courtesy of, who else, Chris Matthews. “I do think if you could ever find a way to put a ticket together that would actually end some of this mishegoss, to use a Yiddish word,” Matthews spun out before coughing up, and you could feel this coming, that he’d like to see Hillary Clinton pick John Kasich as her running mate“If Hillary Clinton were smart,” Matthews said, with a certainty that is unique to men discrediting the intelligence of women who are, in reality, much smarter than they are, “she’d make herself the alternative” for Republicans who don’t want to vote for Trump by putting Kasich on her ticket.“Of course, this doesn’t happen in American politics,” he added wistfully, “because American politics is so free of wonder anymore. It’s so predictable.”Yes, he said this during the administration of the first black president, during a campaign that pits the first major party female candidate against a reality TV star who is winning his party’s nomination against the party leaders’ wills and while running a fascism-reminiscient campaign. But what we really need to get out of the doldrums is for a liberal Democrat to pick a running mate that stands against everything she and her party stand for.
Read the rest at Salon.
Of course the big news is President Obama’s Supreme Court pick of Merrick Garland. JJ covered it thoroughly yesterday. Today the pundits are speculating about why Obama picked an “old white guy” instead of making a “truly progressive” choice. Of course Merrick is Jewish, so he would add to the diversity of a court that is packed with right win Catholics. Forward.com:
Merrick Garland grew up Jewish in Chicago suburbs of Skokie, worked his way to Harvard Law School and investigated the Oklahoma City bombing as a federal prosecutor.
The “mensch” of a jurist with a most un-Jewish sounding name and a sterling reputation for fairness won a coveted spot on the Washington D.C. court of appeals and rose to lead that prestigious court.
After twice being passed over for the Supreme Court, he is now aiming to become an unprecedented fourth Jew on the nine-member top court.
“He’s a total mensch,” said Jay Michaelson, a Forward columnist who once clerked for Garland. “He really wanted to get the law right.”
Garland’s first cousin, Marty Shukert, an urban designer in Omaha, Nebraska, said it was “almost dreamlike” to see Garland nominated by President Obama.
Garland called the nomination “the greatest honor of my life,” in a carefully scripted roll-out to the nation.
Recounting his Jewish family’s battle with persecution, Garland made an emotional pitch for the job he has coveted for decades.
“My grandparents left the Pale of Settlement…in the early 1900’s, fleeing anti-Semitism and hoping to make a better life for their children in America,” Garland told reporters in the Rose Garden, flanked by President Obama and Vice President Joe Biden.
As the headline of the story says, Garland seems like a real “mensch.”
Josh Lederman at the AP: Analysis: Obama Dares GOP to Let Clinton, Trump Pick Justice.
By nominating an uncontroversial 63-year-old judge, President Barack Obama handed Republicans an unwelcome election-year proposition: Give in or risk letting Hillary Clinton or Donald Trump pick a Supreme Court justice the GOP might like even less.
Obama’s selection of appellate judge Merrick Garland landed with a bang the morning after primaries in Florida, Ohio and other key states made clear that Clinton and Trump will be their parties’ presidential candidates, barring extraordinary circumstances. Obama described Garland as an evenhanded consensus-builder, all but daring Republicans to block him and face uncertain consequences from voters.
Republican leaders dug in on their insistence that the next president get to choose the replacement for the late Antonin Scalia, the influential conservative and high court’s most provocative member. Senate Majority Leader Mitch McConnell called it “an issue where we can’t agree.” ….
Republicans loathe Clinton, but they recognize that if she wins the presidency, she could nominate someone far more liberal than Garland, who’s regarded as a centrist. At the same time, the GOP establishment is extremely wary of the unpredictable Trump and desperate for an alternative.
A Democratic victory at the presidential level could be accompanied by a return of the Senate to Democratic control, further complicating Republicans’ ability to prevent Democrats from getting their way. Republicans are fighting their toughest Senate races this year in states like New Hampshire, Wisconsin and Illinois where Democrats are hoping independent-minded voters will be turned off by the GOP’s hardline position.
Brian Beutler calls Garland an “old white guy” and opines that Obama isn’t playing 11 dimensional chess. He just made a mistake in not choosing someone who would make all the progs happy.
Did you hear about the story that PBS News ran about the Tilly family, first-time voters working for Trump in North Carolina? Please go to the link and watch it. PBS did not notice that a woman they featured prominently while she phone-banked for Trump had white supremacist tattoos all over her arms and hands. Gawker did notice. Here’s a photo of Grace Tilly.
From the Gawker story:
Above, you see Grace phone banking for Donald Trump, with the Celtic Cross tattoo on her right hand. Despite the tattoo being in plain view of PBS’ cameras, the story never acknowledges that it is interviewing a walking white power billboard. The Anti-Defamation League explains that the Celtic Cross is one of the most “commonly used white supremacist symbols.” Mark Pitcavage, senior research fellow at the ADL, tells me:
The Celtic Cross is an ancient and revered Christian symbol typically not associated with extremism at all. However, one particular version of the Celtic Cross—a squarish cross with a thick circle intersecting with it (also known as Odin’s Cross), has become one of the most popular white supremacist symbols around. In the past 20 years, its popularity has done little but grow, thanks to its use as the logo by Stormfront, the largest white supremacist website in the world.
And on her hand, Grace has a large tattoo that reads “88,” which according to ADL is “code for Heil Hitler.” See that photo at Gawker. So far, PBS has reacted to the Gawker story.
On Tuesday night we learned that the Sanders Campaign plans to try to convince superdelegates to vote for him at the Democratic convention. Yesterday they announced plans to poach delegates that are pledged to vote for Clinton. It’s hard to remember now that only a couple of months ago, Sanders was supposedly running a clean, positive campaign. Time reports on a call with reporters hosted by camapaign manager Jeff Weaver, Sanders’ and strategist Tad Devine:
Although the Democratic pledged delegates are bound to a particular candidate based on state Democratic votes, Sanders senior strategist Tad Devine suggested there is some leeway there. Devine pointed to the Carter campaigns 1980 victory and their worry about holding onto pledged delegates. The Carter campaign was “deeply concerned about the defection of pledged delegates” to Ted Kennedy, Devine said.
“My point is that a frontrunner in a process like this needs to continue to win if you want to keep hold of delegates,” Devine continued. When pressed by a reporter, Devine said there was no plan “at the moment” to try to sway pledged delegates.
Weaver said that Sanders is doing Clinton a favor by staying in the race–because Bernie will protect poor fragile Hillary from Donald Trump.
“Were this contest to end, you know, by Secretary Clinton, or us getting out—certainly if the Secretary were still in the race, she could expect months and months and months of immediate, and vicious, and very personal attacks from the Trump people,” Weaver said. “So I don’t know if that’s necessarily healthy for her.”
WTF?! The people who said all along that the superdelegate process is undemocratic now want to win with their votes? And on top of that, they want to usurp the voters’ choices by stealing pledge delegates?
It’s just breathtaking. Here’s a great Greg Sargent interview with Hillary’s chief strategist Joel Benenson as an antidote: Hillary Clinton’s chief strategist: Sanders can’t win, and we’re ready to take down Trump. Read the whole thing at the WaPo.
What stories are you following today? Please post your thoughts and links in the comment thread and enjoy the rest of your Thursday.
There are more Supreme Court decisions out today on all kinds of things.I’m going to give you a brief description of the major ones. It’s hard to top the Marriage Equality ruling and the saving of tax credits for “Obamacare”. However, a few of them are just as important in their own right.
The U.S. Supreme Court refused to consider letting states require evidence of citizenship when people register to vote for federal elections, rejecting an appeal from Arizona and Kansas.
The rebuff is a victory for the Obama administration and voting- and minority-rights groups that battled the two states in court. It leaves intact a decision by a U.S. agency that blocked the states from requiring proof of citizenship for voters in federal elections.
It’s the second high court defeat on the issue for Arizona. The state has a law that requires evidence of citizenship, but the Supreme Court ruled in 2013 that it couldn’t be enforced when people use a standard registration document known as the “federal form” to register to vote for Congress and the president.
That 7-2 ruling left open the possibility that Arizona could impose its requirements through a different avenue. The court said the state could submit a request to the agency that developed the form, the U.S. Election Assistance Commission, asking it to tell Arizona voters they needed to supply proof of citizenship.
SCOTUS also struck down three provision of the various Three Strikes laws that were designed to penalize “career” criminals. Scalia wrote the majority opinion in this case.
While the country was busy celebrating the Supreme Court’s long-awaited marriage equality ruling, the justices issued another ruling in the Johnson v. United States case that dealt a crucial blow to the prison industrial complex. The SCOTUS ruled that a key provision of the Armed Career Criminal Act, which lengthens the sentences of “career criminals,” is unconstitutionally vague. The ruling paves the way for thousands of prisoners to have their sentences reduced and will cause the private prison industry to lose millions of dollars in profits.
In 1984, Congress passed the Armed Career Criminal Act (ACCA), the law required judges to sentence people to 15 years to life if they have three prior convictions for “serious drug offense” or “violent felonies.” However, what exactly qualified as a “violent felony” was frustratingly vague and was used as a sentence enhancer in many non-violent cases. A “residual clause” in the ACCA allowed third time felons to be sent to prison for any crime that ” presents a serious potential risk of physical injury to another.” That potential risk could include drunk driving, fleeing police, failing to report to a parole officer and even attempted burglary. It seemed to be used as a catch-all sentence enhancer for the sole purpose of throwing people in prison for years longer than they deserved to be. This practice has become increasingly more common as more states allow for-profit prisons in their states.
In the Johnson case, the government used the ACCA to enhance Samuel Johnson’s prison sentence because of a prior conviction of possession of a sawed off shotgun. Johnson argued that he shouldn’t be subjected to a harsher sentence, because the definition of what was considered “violent” was unconstitutionally vague. The SCOTUS agreed with Johnson and issued a 7-1 ruling in his favor.
Another finding allows independent panels to redistrict congressional and other political districts. This could be a key step to stopping the practice of gerrymandering. Arizona’s decision to let independent panels redistrict was declared constitutional.
By ruling that Arizona’s Independent Redistricting Commission is constitutional, the Supreme Court of the United States kicked plutocrat-loving Republicans in the gut. Justice Ruth Bader Ginsberg wrote the 5-4 majority opinion, joined by Justices Breyer, Kagan, Kennedy and Sotomayer.
The crux of the majority’s reasoning can be found in last paragraph of the ruling.
Our Declaration of Independence, drew from Locke in stating: “Governments are instituted among Men, deriving their just powers from the consent of the governed.” And our fundamental instrument of government derives its authority from “We the People.” U. S. Const., Preamble. As this Court stated, quoting Hamilton: “[T]he true principle of a republic is, that the people should choose whom they please to govern them.” Powell v. McCormack, 395 U. S. 486, 540-541 (1969) (quoting 2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876)). In this light, it would be perverse to interpret the term “Legislature” in the Elections Clause so as to exclude lawmaking by the people, particularly where such lawmaking is intended to check legislators’ ability to choose the district lines they run in, thereby advancing the prospect that Members of Congress will in fact be “chosen . . . by the People of the several States,”
Even though this case got much less attention from the media compared to the health care and marriage equality cases it is in some ways as important as the aforementioned cases. The reason is it will shape the meaning of vote equality in the years to come. Had the court ruled the other way, frankly, it would have removed the last real hope of stopping the Koch controlled Republicans from rigging elections in their favor.
In one disappointing decision, SCOTUS removed EPA limits on Air Pollution.
The US supreme court struck down new rules for America’s biggest air polluters on Monday, dealing a blow to the Obama administration’s efforts to set limits on the amount of mercury, arsenic and other toxins coal-fired power plants can spew into the air, lakes and rivers.
The 5-4 decision was a major setback to the Environmental Protection Agency (EPA), and could leave the agency more vulnerable to legal challenges from industry and Republican-led states to its other new carbon pollution rules.
The justices embraced the arguments from the industry and 21 Republican-led states that the EPA rules were prohibitively expensive and amounted to government overreach.
But the EPA pointed out that most plants had already either complied or made plans to comply with the ruling.
“EPA is disappointed that the court did not uphold the rule, but this rule was issued more than three years ago, investments have been made and most plants are already well on their way to compliance,” the agency said in a statement obtained by Reuters.
The EPA “remains committed to ensuring that appropriate standards are in place to protect the public from the significant amount of toxic emissions from coal and oil-fired electric utilities and continue reducing the toxic pollution from these facilities,” the agency added.
Monday’s decision, written by Justice Antonin Scalia, ruled that the EPA did not reasonably consider the cost factor when drafting the toxic air-pollution regulations.
The Clean Air Act had directed the EPA to create rules to regulate power plants for mercury and other toxic pollutants that were “appropriate and necessary”.
There’s some discussion in legal blogs about a possible softening of the Court in terms of it’s tendency to follow Scalia and Thomas to hard right conclusions. Are Kennedy and Roberts becoming more moderate or showing a bit more judicial restraint and temperament? Here’s some analysis by Tom Goldstein writing for SCOTUSBlog.
There is a lot of commentary about the unusually liberal results of this Term. I thought I would mention a few data points which back up that view of things.
For present purposes, I treat four Justices as sitting to the Court’s left: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. I treat four Justices as sitting to the Court’s right: Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. I treat Justice Anthony Kennedy as the Court’s “center.”
I count 26 cases this Term that were both close (5-4 or 6-3) and ideological (in the sense that they broke down principally on ideological lines, with ideology seemingly an important factor).
Of the 26 cases, the left prevailed in 19. Those included the first 9 of the Term. The right prevailed in 7.
In the 26, a Justice on the left voted with the right a total of 3 times. In 2 cases, those votes determined the outcome and produced a more conservative result, because Justice Kennedy or one of the conservatives voted for the more liberal result.
In the 26, a Justice on the right voted with the left 14 times. In 6 cases, those votes determined the outcome and produced a more liberal result, because Justice Kennedy voted for the more conservative result.
I also considered the 10 cases I consider most significant. Of those, the left prevailed in 8. Those included the first 7 of the Term. (I mention the early cases to give a sense of how the results must have appeared inside the Court as the Term went along.) The right prevailed in 2, both in the final sitting of the Term.
In the 10, no Justice on the left voted with the right; the four Justices on the left voted together in every one of those cases. A Justice on the right voted with the left 4 times. Those votes determined the outcome in 2 cases, because Justice Kennedy voted for the more conservative result.
Note that the analysis above is skewed against finding the Term particularly liberal by treating Justice Kennedy as the Court’s “center.” That is true ideologically, but he is certainly a conservative. If he were characterized that way for my analysis, the number of defections to the left would be much higher.
By that measure, a Justice on the right voted with the left 25 times (compared with 3 times the reverse happened). That occurred in all 10 of the 10 major cases (because no Justice on the left voted with the right in any of those cases), and determined the outcome in all of them.
Real Clear Politics also had a take on this. It’s obviously an interesting question to ask given the current hissy fits happening with in movement conservatives who are calling for the essential overthrow of the current court since a few decisions did not go their way.
Conservatives were disheartened by the Court’s rulings Thursday in King v. Burwell and Texas Department of Housing and Community Affairs v. The Inclusive Project. They probably will be disheartened if the Court rules that gay marriage is a constitutional right, which seems likely. I suspect I got the authorship of the Arizona redistricting commission case wrong in my Supreme Court Bingoarticle: the opinion assignments make more sense if Justice Kennedy lost his majority in Din, which would suggest Justice Ginsburg is writing the redistricting commission opinion. That means conservatives may well be disappointed in the outcome of that opinion as well.
Unsurprisingly, conservatives are up in arms about the supposed “selling out” from Chief Justice John Roberts. Their reaction is something along the lines of Obi-Wan’s final words (from Obi-Wan’s point of view) to Anakin Skywalker: “You were the chosen one! It was said that you would destroy the Sith, not join them!”
plenty of today’s “liberal” decisions would have been considered downright reactionary in the 1960s (or 1970s). Consider the NFIB case, which upheld Obamacare in 2012, while finding that the individual mandate could not be supported by the commerce power. Until 1995, many scholars believed that the Commerce Clause had all but given Congress a general police power; the Lopez decision, which placed the first limits on congressional power in 60 years, was on the outer fringes of even conservative legal theory. NFIB actually reinforces, and to a certain extent expands that decision.
This says nothing of the Court’s holding that there are real limits to the spending clause, which garnered the votes of seven justices. I’m not sure there would have been more than one or two votes for this in the 1960s. By the standards of the 1970s, NFIB was a radically conservative decision, even when the substantive outcome is taken into account. By the standards of, say, the 1920s on the other hand, this was a radically liberal opinion, insofar as it accepts the basic New Deal framework (that there is at least one justice who is prepared to jettison that framework entirely shows just how far to the right the Court has gone).
Or consider the opinion validating Obamacare’s subsidies. While the plaintiffs’ theory of the case was perfectly plausible under current statutory interpretation principles (enough so that several Democratic-appointed lower court judges were cautious when ruling against plaintiffs), it also represented something of a reductio ad absurdum of textualism. If we were to have a debate over textualism in, say, the 1970s, one can imagine a purposivist asking, “So what if there is an obvious drafting error in a section that threatens an entire massive statute? What then?” The fact that conservatives expect the Court to go “full textualist” even in that circumstance – and that even liberal scholars like Abbe Gluck accept the basic textualist framework – again shows how far the debate has moved in the past 30 years.
What about the redistricting commission case? Assuming conservatives lose this one, it’s worth remembering that this position on the elections clause only had the support of three members of the Court in 2000 (when a similar argument was raised in Bush v. Gore); Justices Kennedy and O’Connor avoided the issue and may well have been against it. So even a 6-3 ruling against conservatives here would probably reveal no net shift in the positioning of the Court over the past 15 years. It is just that the expectations for conservatives have shifted.
One more case is worth discussing. This one will be in the works. “The Supreme Court on Monday agreed to consider whether the University of Texas’s race-conscious admissions plan is constitutional.”
Two years ago, the court voted 7 to 1 to send the plan back for further judicial view and told the lower court to apply the kind of rigorous evaluation that must accompany any government action that considers race.
“Strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice,” Justice Anthony M. Kennedy wrote.
This will be another interesting case to watch.
What’s on your reading and blogging list today?