Cody Fenwick

There's a key flaw in the Supreme Court's ruling against the OSHA vaccine rule

In a new ruling on Thursday, the six conservative justices on the U.S. Supreme Court blocked the Biden administration from implementing a sweeping requirement for vaccines under the Occupation Safety and Health Administration. Using OSHA's power to regulate employers, the administration sought to require any company with 100 workers or more to ensure that employees are either vaccinated against COVID-19 or are tested weekly for the virus.

Writing in a per curiam decision, the court's six-justice conservative majority used twisted logic to block the administration's plan. The three liberal justices wrote a joint dissent, arguing that the court's decision overstepped its own authority. (In a separate case decided at the same time, conservative Justices Brett Kavanaugh and John Roberts joined the liberals to uphold the administration's mandate requiring vaccination for health care workers at facilities receiving funds from Medicaid and Medicare.)

To justify its opposition to the OSHA vaccination rule, the majority argued that the administration exceeded the authority delegated by Congress. But to come to the conclusion, it had to use a rather bizarre and seemingly contradictory line of reasoning.

The decision explained:

The Solicitor General does not dispute that OSHA is limited to regulating “work-related dangers.” ... She instead argues that the risk of contracting COVID–19 qualifies as such a danger. We cannot agree. Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. [emphasis original]

It's hard to figure out what this last sentence really means. It's essentially saying, "Though COVID-19 is a danger in the workplace, it's not a workplace danger." The phrasing tries to dance around this obvious contradiction by using the word "occupational" instead of "workplace," by inserting meaningless italics, and by appending the words "in most" at the end — without justifying or explaining their inclusion or relevance. But don't get confused. The court's claim is just nonsensical.

What the majority wanted to say is that COVID-19 is not a distinctively work-related threat. And that is clearly so. But the court never actually showed that the law requires that a threat be distinctively work-related in order to be regulated because that's not what the law says. It must be "work-related," as the solicitor general acknowledged.

The next sentence in the decision only further highlights the majority's confused reasoning: "COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather."

Two of the examples listed here, schools and sporting events, are workplaces for many people. So while trying to insist that the virus is much more than a workplace hazard, the conservative justices really just showed that our workplaces are much more entangled with the rest of our lives than they'd like to admit. This counts in favor of dismissing the supposed difference between workplace hazards and generalized hazards, rather than resting a crucial decision on the supposed distinction.

Moreover, the conservative justices failed to acknowledge an obvious point: For many, many people, the workplace is likely by far the most dangerous place for them in terms of COVID risk. They have little choice about whether and when to go, who they will be working with, and under what conditions. OSHA's vaccine and testing requirements would make them safer from the virus than they would be otherwise, including in the broad scope of all their other daily activities. This is a clear way in which the risk from COVID-19 is distinctly occupational. But somehow, the majority wants us to believe that this isn't a matter of workplace safety.

A later paragraph in the majority decision better reveals what is really driving the conservatives' view:

That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction— between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.”

Here, the justices admit that COVID-19 can be a workplace hazard. But what they fear is that the administration is using the OSHA rule in an "indiscriminate" way as a public health measure. There's nothing in the law to prohibit the administration from doing this, and there's no clean distinction between public health and workplace safety anyway, as the schools and sporting events examples show. The conservatives just worked backward from their conclusion that they didn't like what the Biden administration had done, and they had to use twisted logic to justify their decision legally.

As the liberals pointed out in dissent, there's nothing in the law to justify the majority's distinction between workplace hazards and more general public health hazards:

Of course, the majority is correct that OSHA is not a roving public health regulator, see ante, at 6–7: It has power only to protect employees from workplace hazards. But as just explained, that is exactly what the Standard does. See supra, at 5–6. And the Act requires nothing more: Contra the majority, it is indifferent to whether a hazard in the workplace is also found elsewhere. The statute generally charges OSHA with “assur[ing] so far as possible . . . safe and healthful working conditions.” 29 U. S. C. §651(b). That provision authorizes regulation to protect employees from all hazards present in the workplace—or, at least, all hazards in part created by conditions there. It does not matter whether those hazards also exist beyond the workplace walls.

So the majority invented a distinction not found in the text of the law to limit the administration's authority. It claimed that if Congress really wanted the administration to have the authority to require workers to be vaccinated, it could have written that into the law. But the logic applies even more forcefully in reverse. Had Congress had wanted to restrain the scope of OSHA further than what the text itself says, lawmakers also could have done that. They didn't.

Instead, the majority cites the fact that the Senate recently issued a majority vote of disapproval of the administration's use of the OSHA rule. But that's less telling for what it was than for what it wasn't: actual action by Congress to restrict the administration's authority. The mere opinions of a group of senators is not binding on the executive or judicial branches, and they don't belong in Supreme Court decision.

The fact that the conservative majority was willing to block the administration's action on such obviously flimsy and flawed reasoning is a disturbing sign for what might be coming if the Supreme Court remains in its current form.

‘You cannot let this happen’: MSNBC host delivers powerful plea directly to Biden to stop a starvation crisis

MSNBC host Chris Hayes delivered a powerful plea Monday night urging President Joe Biden to act swiftly to fight a worsening humanitarian crisis in Afghanistan.

Following the American withdrawal, the country has plunged into severe destitution. While the previous American-backed Afghanistan government benefited from foreign aid and U.S. financial support, the new regime established by the Taliban has largely been cut off and is drastically under-funded. These conditions have left tens of millions of people in Afghanistan near starvation.

Hayes quoted from a recent Washington Post story explaining the crisis:

The country’s new rulers, cut off from most international aid as well as Afghan government assets held in U.S. accounts, have scant resources to protect millions of vulnerable people against another harsh winter. Aid groups estimate that nearly 23 million Afghans, out of a total population of 39 million, already do not have enough to eat. Many also lack solid shelter and money to heat their homes at night, forcing them to choose between food and fuel, and creating additional potential for a full-fledged humanitarian disaster, aid officials said.

"There is little help from the Taliban government, and part of the reason for that is about 75 percent of the former government's budget was funded by foreign aid, which was essentially stopped when the Taliban took power," Hayes explained. "But there are things our government and President Biden could do right now to get money flowing into the country to hopefully help millions of Afghans. For example, the U.S. government could release the $9.4 billion of Afghan assets that were frozen last year. They could also ease the sanctions against the Taliban; they could encourage the international community to restart aid. Because right now, withholding aid from the Afghan government — which, as odious as it is, there's no question about that — produces zero positive geopolitical effect."

Biden may feel hesitant to show any sign of support for the Taliban out of fear that it will be used against him by his domestic political opponents. The chaotic and deadly military withdrawal from Afghanistan in August 2021 was seen by many in the media as reflecting poorly on Biden's leadership, and critics will surely use any suggestion that the president is helping the Taliban as an opportunity to relitigate the issue. But it's hard to see how this could be a defensible excuse for letting millions endure extended deprivation and suffering.

“It is an indefensible moral scandal to consign tens of millions of people to freeze and starve to death this winter," Hayes concluded. "Mr. President, you cannot let this happen."

Watch the clip below:

Obama reveals the emotional message he sent to Harry Reid in the last days of his life

As news broke Tuesday night that the former Democratic Senate Majority Leader Harry Reid had died at age 82, many people who knew him began sharing their remembrances of the Nevada lawmaker.

Former President Barack Obama posted a notable message on Twitter to commemorate his ally, which included a personal letter he had recently written to Reid.

"When Harry Reid was nearing the end, his wife Landra asked some of us to share letters that she could read to him," Obama explained. "In lieu of a statement, here’s what I wrote to my friend."

The letter expressed his loved and admiration for the former majority leader, and it credited Reid with being pivotal to most of the accomplishments of the Obama presidency.

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Here it is in full:

I got the news that the health situation has taken a rough turn, and that it’s hard to talk on the phone. Which, let’s face it, is not that big of a change cause you never liked to talk on the phone anyway!
Here’s what I want you to know. You were a great leader in the Senate, and early on you were more generous to me than I had any right to expect. I wouldn’t have been president had it not been for your encouragement and support, and I wouldn’t have got most of what I got done without your skill and determination.
Most of all, you’ve been a good friend. As different as we are, I think we both saw something of ourselves in each other - a couple of outsiders who had defied the odds and knew how to take a punch and cared about the little guy. And you know what, we made for a pretty good team.
Enjoy your family, and know you are loved by a lot of people, including me. The world is better cause of what you’ve done. Not bad for a skinny, poor kid from Searchlight.

Reid had written in his memoir that he encouraged Obama to run for president early on, even though he was still quite new to the Senate.

"If you want to be president, you can be president now," Reid said he told Obama.

Jan. 6 committee reveals texts of Trump allies' desperate pleas for him to act during the Capitol attack

During a televised meeting of the House select committee investigating the Capitol insurrection, Republican Rep. Liz Cheney of Wyoming read aloud a series of texts from former President Donald Trump's allies who pleaded to have him stop the attack in real-time.

The texts were sent to Trump's then-Chief of Staff Mark Meadows as the Capitol was overtaken. They showed the raw reactions of many of the former president's supporters, many of whom have since downplayed the severity of the attack.

"According to the records, multiple Fox News hosts knew the president needed to act immediately. They texted Mark Meadows, and he has turned over those texts," Cheney said.

Fox hosts Laura Ingraham, Sean Hannity, and Brian Kilmeade all texted Meadows about the attack, according to Cheney. They reportedly said:

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  • Ingraham: "Mark, the president needs to tell people in the Capitol to go home. This is hurting all of us. He is destroying his legacy."
  • Kilmeade: "Please, get him on TV. Destroying everything you have accomplished."
  • Hannity: "Can he make a statement. Ask people to leave the Capitol."

The president's son, Donald Trump Jr., reportedly texted Meadows: "He's got to condemn this shit ASAP. The Capitol Police tweet is not enough."

And Meadows reportedly responded: "I'm pushing it hard. I agree."

"Still, President Trump did not immediately act," Cheney explained.

Trump Jr. kept texting, she said, later admitting "It has gone too far."

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"But hours passed without necessary action by the president," Cheney said.

Democratic Rep. Benny Thompson of Mississippi, the chair of the committee, revealed texts to Meadows from members of Congress.

Rep. Devin Nunes is retiring by the end of the month to work for Trump

Republican Rep. Devin Nunes of California is retiring from Congress at the end of 2021 to work for former President Donald Trump.

The news was first reported by Alex Tavlian of The San Joaquin Valley Sun, which initially claimed he'd stay on until 2022 before updating with the much more rapid timeline. The Trump Media and Technology Group later released a statement confirming that Nunes had accepted an offer to become its CEO, a position he'll assume in January of the new year.

Many observers quickly pointed out that Nunes was next in line to be chair of the Ways and Means committee, should Republicans take control of the House of Representatives — a particularly powerful position in Congress. But apparently, his options outside of government were even more enticing.

Nunes came to public prominence as a fierce defender of Trump during his presidency. For the first two years, Nunes led the House Intelligence Committee and waged an aggressive campaign against the government's investigations into the then-president. He was an aggressive opponent of the Russia investigation and stoked conspiracy theories about an inside plot to bring Trump down.

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Nunes was also an outspoken critic of the House investigation of Trump's efforts to induce Ukraine into going after Joe Biden, which eventually led to the first of his two impeachments.

Since taking a prominent place in American politics, the California congressman launched a sweeping effort to silence some of his critics by weaponizing a series of lawsuits against media organizations and individuals whose reporting and commentary displeased him. Those lawsuits have been largely unsuccessful in court, but the effort may have nevertheless contributed to a chilling effect on people interested in speaking out against him.

'He broke our rules': CNN announces it has indefinitely 'suspended' Chris Cuomo over new revelations

Following new revelations on Monday about CNN host Chris Cuomo's role in his brother's scandal, the network announced on Tuesday that it has indefinitely suspended the primetime anchor.

Chris Cuomo has faced significant public scrutiny for his efforts to help former New York Governor Andrew Cuomo, his brother, as he dealt with the sexual misconduct and abuse of power allegations that forced him to resign from office. It had previously been reported that the CNN host played a role in helping his brother manage the matter as a public relations crisis, which many argued constituted a major breach of journalistic ethics.

Chris Cuomo largely avoided the topic of his brother's scandal on his 9 p.m. show, an awkward attempt to navigate the conflict of interest. Gov. Cuomo had previously appeared on his brother's show, often in light-hearted segments. As allegations emerged against the governor, Chris Cuomo worked with his brother's staff to strategize a response.

The newest revelations showed the Chris Cuomo's role in his brother's scandal was even deeper and more conflicted than was publicly known. New York Attorney General Letitia James' office released records from its investigation that found Chris Cuomo used his journalistic contacts in an effort to do damage control for the then-governor.

"The New York Attorney General’s office released transcripts and exhibits Monday that shed new light on Chris Cuomo’s involvement in his brother’s defense," CNN said in a statement. "The documents, which we were not privy to before their public release, raise serious questions. When Chris admitted to us that he had offered advice to his brother’s staff, he broke our rules and we acknowledged that publicly. But we also appreciated the unique position he was in and understood his need to put family first and job second. However, these documents point to a greater level of involvement in his brother’s efforts than we previously knew. As a result, we have suspended Chris indefinitely, pending further evaluation."

Jury finds Kyle Rittenhouse not guilty on all counts

On Friday, the jury in the Kyle Rittenhouse case announced that the defendant was not guilty on all five charges against him.

The 18-year-old had shot three people, killing two of them, during protests in Kenosha, Wisconsin, last year. Rittenhouse argued that he had acted in self-defense.

He was charged with multiple counts of homicide and reckless endangerment.

After closing arguments on Monday, the final 12 jurors were selected on Tuesday and began their deliberations. There were five men and five women on the jury, according to CNN. On Wednesday, they reviewed videos of the incident in the courtroom.

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Steve Bannon gets indicted for contempt of Congress

Steve Bannon, a close ally of former President Donald Trump, was indicted Friday afternoon, the Justice Department announced.

A federal grand jury returned the indictment after Bannon refused to comply with a subpoena for testimony by the House Select Committee investigating the Jan. 6 attack on Congress.

"Since my first day in office, I have promised Justice Department employees that together we would show the American people by word and deed that the department adheres to the rule of law, follows the facts and the law and pursues equal justice under the law," Attorney General Merrick Garland said in a statement. "Today's charges reflect the department's steadfast commitment to these principles."

The indictment included two charges, one for refusing to appear before Congress and another for refusing to turn over documents.

The department said an arraignment has not been scheduled yet for Bannon.

"As detailed in the indictment, on Sept. 23, 2021, the Select Committee issued a subpoena to Mr. Bannon," U.S. Attorney Matthew Graves said. "The subpoena required him to appear and produce documents to the Select Committee, and to appear for a deposition before the Select Committee. According to the indictment, Mr. Bannon refused to appear to give testimony as required by subpoena and refused to produce documents in compliance with a subpoena."

Bannon has claimed that he doesn't need to testify because former President Donald Trump's executive privilege protects him from congressional subpoenas. However, many legal analysts have argued that this claim is vacuous on multiple grounds. As a former president, Trump's claims of executive privilege are tenous at best. And they're particularly weak as they would apply to Bannon, who wasn't an executive branch employee at the time in question. And even if the concept of executive privilege were stretched beyond its limits, Bannon would still be obligated to appear before Congress and formally assert the privilege in the specific instances when it applies.

Bannon was previously indicted by the Justice Department for his role in the fundraising effort "We Build the Wall," which purported to collect private donations to construct the border wall that Trump had campaigned for president on. The Justice Department contends that the group defrauded donors by misusing their funds. However, as one of his last acts as president, Trump pardoned Bannon for his role in the alleged scheme before the charges could even be brought to trial.

It's not only Bannon who has resisted the committee's investigation. Mark Meadows, Trump's former chief of staff, has also refused to comply with a subpoena for testimony. It's possible he has a stronger legal claim to refuse to testify, but Bannon's indictment will likely put more pressure on him to comply with the committee.

The department explained in a press release:

In its subpoena, the Select Committee said it had reason to believe that Bannon had information relevant to understanding events related to Jan. 6. Bannon, formerly a Chief Strategist and Counselor to the President, has been a private citizen since departing the White House in 2017.
Each count of contempt of Congress carries a minimum of 30 days and a maximum of one year in jail, as well as a fine of $100 to $1,000. A federal district court judge will determine any sentence after considering the U.S. Sentencing Guidelines and other statutory factors.

'Plaintiff is not President': Judge shoots down Trump's efforts to keep records from Jan. 6 committee

U.S. District Judge Tanya Chutkan ruled Tuesday night that former President Donald Trump has no authority to prevent the National Archives from handing over records of his administration requested by the House Select Committee investigating the Jan. 6 insurrection.

President Joe Biden has given the archives permission to comply with the committee's request, effectively waiving any executive privilege claim. But Trump objected, arguing that he still wanted to assert privilege over the records, and he took the committee to court.

But Judge Chutkan found that, as a former president, Trump does not have the authority to overrule Biden's decision in this matter.

The ruling explained:

At bottom, this is a dispute between a former and incumbent President. And the Supreme Court has already made clear that in such circumstances, the incumbent's view is accorded greater weight. This principle is grounded in "the fact that the privilege is seen as inhering in the institution of the Presidency, and not in the President personally."

"Plaintiff does not acknowledge the deference owed to the incumbent President's judgment. His position that he may override the express will of the executive branch appears to be premised on the notion that his executive power 'exists in perpetuity,'" she continued. "But Presidents are not kings, and Plaintiff is not President. He retains the right to assert that his records are privileged, but the incumbent President 'is not constitutionally obliged to honor' that assertion."

The judge further noted that Trump requested the court step in and make individual judgments in this matter over which records may be handed over to the committee. But she argued that there's no reason for her to intervene when the House and the president are in agreement, as they are in this matter. And Trump failed to show that he would suffer any "irreparable harm" if the records are handed over, Chuktan argued — a central component needed to justify his request for the court to involve itself in the request.

She explained: "The legislative and executive branches believe the balance of equities and public interest are well served by the Select Committee's inquiry. The court will not second guess the two branches of government that have historically negotiated their own solutions to congressional requests for presidential documents."

The judge also made clear that she thinks the committee's task is worth pursuing, noting that it is in the "public interest" for the investigation of the Jan. 6 attack to continue. She also included several pages of detail about the run-up to the attack, including Trump's own statements that helped fuel the false belief that the 2020 election was stolen. While this information wasn't material to the judgment, she said, it provided relevant context.

Shortly after the ruling was issued, Trump's lawyers filed to appeal it.

The state of Florida is under fire for trying to silence professors who want to testify about voting rights

After public outrage over its decision to block professors from testifying as expert witnesses about voting rights, the University of Florida tried to defend itself this week by issuing a statement claiming to support "academic freedom." But critics argued in response that such a defense was blatantly hypocritical, and its treatment of its faculty cannot be justified.

The dispute first arose when political science professors Michael McDonald, Sharon Austin, and Daniel Smith were told by the university that they could not testify as expert witnesses in a case against Florida's voting laws. Officials for the university claimed it was a "conflict of interest" for the professors, as state employees, to testify in cases against Florida's interest.

Many quickly pointed out that this was a clear case of government censorship, effectively shutting down critics of the state in an extremely consequential circumstance. It's all the more egregious because Florida Gov. Ron DeSantis, like many other Republicans, has presented himself as a defender of the value of free speech.

"It is a profound, chilling, frightening change in policy,'' said Paul Donnelly, a lawyer for the professors, according to the Miami Herald. "What would happen if another party was in control and could engage in this kind of censorship."

Austin said: "We must support academic freedom no matter what the consequences are."

In a statement, the university claimed it is a proponent of free speech — even while confirming the story:

Recent news reports have indicated the University of Florida denied requests of some faculty members to participate in a lawsuit over the state of Florida's new election laws.
The University of Florida has a long track record of supporting free speech and our faculty's academic freedom, and we will continue to do so. It is important to note that the university did not deny the First Amendment rights or academic freedom of professors Dan Smith, Michael McDonald and Sharon Austin. Rather, the university denied requests of these full-time employees to undertake outside paid work that is adverse to the university's interests as a state of Florida institution.

On Twitter, McDonald suggested that even this statement was, in part, the university's misleading spin. When the professors requested permission to serve as expert witnesses, the university's denial was not based on the fact that it would be "paid work," as the statement implied, he said. According to the rejection notice he posted, officials objected to the fact that the professor's testimony would be "adverse to UF's interests."

FIRE, an organization that promotes freedom of expression in academia, said in a statement: "The profound civic importance of fair trials requires the ability of fact and expert witnesses to come forward to testify truthfully without fear that their government employer might retaliate against them. Public university faculty are no exception. We call on UF to reverse course immediately."

"Gov. Ron DeSantis has opposed Big Tech censorship and touted the free speech of parents," said Politico reporter Marc Caputo said on Twitter. "But University of Florida has muzzled 3 stat professors from testifying against a new voting-restriction law. Where does DeSantis stand?"

The New York Times reported:

Robert C. Post, a Yale Law School professor and expert on academic freedom and the First Amendment, said he knew of no other case in which a university had imposed prior restraint on a professor's ability to speak.
"The university does not exist to protect the governor," he said. "It exists to serve the public. It is an independent institution to serve the public good, and nothing could be more to the public good than a professor telling the truth to the public under oath."

'Red flags were everywhere': Bombshell report finds the Trump administration ignored warnings of 1/6 violence

A new report from the Washington Post published on Sunday detailed a deep dive into the extensive warnings the federal government received of potential violence and efforts to interfere with Congress's counting of the Electoral College votes on Jan. 6. Despite this ample foreshadowing, the administration and law enforcement agencies were still unable or unwilling to prepare adequate defenses to keep the mob from storming the Capitol that day.

The FBI, in particular, comes off looking inept — if not driven by politically inspired cowardice or indifference.

"The FBI received numerous warnings about Jan. 6 but felt many of the threatening statements were 'aspirational' and could not be pursued," the report found. "In one tip on Dec. 20, a caller told the bureau that Trump supporters were making plans online for violence against lawmakers in Washington, including a threat against Sen. Mitt Romney (R-Utah). The agency concluded the information did not merit further investigation and closed the case within 48 hours."

Donell Harvin, the head of intelligence at the homeland security office in Washington, D.C., did raise the alarm, according to the report. It explained how he "organized an unusual call for all of the nation's regional homeland security offices" — a call joined by hundreds of officials sharing their concerns. They were reportedly warning of an attack on Jan. 6 at 1 p.m. at the U.S. Capitol, just when the insurrection occurred. The planning was happening all over social media, after all — inspired by then-President Donald Trump's own tweets and rhetoric. Harvin reached out to the FBI and other agencies to warn them of what was coming, the report found.

He feared a "mass casualty event," according to the Post.

"While the public may have been surprised by what happened on Jan. 6, the makings of the insurrection had been spotted at every level, from one side of the country to the other," it said. "The red flags were everywhere."

Despite specific warnings of the exact nature of the attack that was coming — the planning of which would certainly be illegal — it appears the FBI limited itself for fear of infringing on First Amendment-protected activity. The Post also suggested that FBI Director Christopher Wray, who was often under fire from Trump, feared angering the man who appointed him by speaking out about the potential for violence.

"The FBI chief wasn't looking for any more confrontations with the president," the Post found, citing current and former law enforcement officials.

Wray remains in his position to this day.

Meanwhile, the Post reported, the Department of Homeland Security did not put out a security bulletin to alert other agencies of the dangers, despite receiving, "sobering assessments of the risk of possible violence on Jan. 6, including that federal buildings could be targeted by protesters."

As has previously been reported, officials in the U.S. Capitol Police were aware of at least some of the danger posed by Trump supporters still angry about the election in the run-up to Jan. 6. These warnings, however, didn't make it to Chief Steven Sund, and he failed to effectively coordinate with the National Guard to get protection for the Capitol. The Capitol Police itself was woefully under-prepared for the assault, as has been widely reported. Sund resigned following the attack, one of the few officials to face real accountability for the failures that led up to that day.

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'The State’s gambit has worked': Justice Sotomayor decries the court's refusal to lift the Texas abortion ban

U.S. Supreme Court Justice Sonia Sotomayor issued a lone dissent on Friday as her colleagues once again refused to block the Texas abortion ban, even under a request from the Department of Justice.

The court did agree to take up the matter for oral arguments swiftly. On Monday, Nov. 1, the court will hear from both sides in the case on the question of whether the U.S. administration can intervene and temporarily block the law from going into effect as the cases proceed.

But Sotomayor, as she has previously, argued that the court should have issued an injunction blocking the abortion ban from being enforced immediately. The law is already having massive effects on the constitutionally protected right to obtain an abortion in Texas, she argued, and yet a majority of the justices is allowing the state to use procedural loopholes to undermine the court's own ruling precedents.

"The State's gambit has worked," she wrote. "The impact is catastrophic."

To circumvent existing law protecting the right to get an abortion, Texas legislators enacted a scheme the prohibits abortion after six weeks — well before a pregnancy may have even been detected — but outsources enforcement to the courts and citizens. The ban, known as S.B. 8, allows anyone to sue those who assist in an abortion for $10,000. Because of this unique enforcement mechanism, a majority of the Supreme Court's conservative justices have said that the issues are too complex to warrant an immediate injunction against the law.

This decision, Sotomayor argued, is a betrayal of the court's authority — and it is having the practical effect of infringing on the rights of people seeking abortions. She explained:

On a human level, the District Court relied on credible declarations that described the threat of liability under S. B. 8 as "nothing short of agonizing" for abortion care providers. ... Providers are "seriously concerned that even providing abortions in compliance with S. B. 8 will draw lawsuits from anti-abortion vigilantes or others seeking financial gain." ... Patients are "devastated" to learn they cannot access care, and the "turmoil" caused by the Act leaves them "panicked, both for themselves and their loved ones." ... Even among the few women who are able to receive abortion services in Texas, S. B. 8 pushes patients "to make a decision about their abortion before they are truly ready to do so."
To be sure, the court agreed, "[p]regnant people from Texas are scared and are frantically trying to get appointments" in other States. ... The court found, however, that many patients are unable to seek out-of-state care based on financial constraints, dangerous family situations, immigration status, or other reasons. Id., at *42. These individuals "are being forced to carry their pregnancy to term against their will or to seek ways to end their pregnancies on their own." ...
The court also found that patients who are able to leave Texas have encountered restrictions and backlogs exacerbated by S. B. 8, citing evidence of the Act's "stunning" and "crushing" impacts on clinics in Oklahoma, Kansas, Colorado, New Mexico, and Nevada. ... An Oklahoma provider, for example, reported a "staggering 646% increase of Texan patients per day," occupying between 50% and 75% of capacity. ... A Kansas clinic similarly reported that about half of its patients now come from Texas. Id., at *44. The District Court found that this "constant stream of Texas patients has created backlogs that in some places prevent residents from accessing abortion services in their own communities.

"I cannot capture the totality of this harm in these pages," she continued. "But as these excerpts illustrate, the State (empowered by this Court's inaction) has so thoroughly chilled the exercise of the right recognized in Roe as to nearly suspend it within its borders and strain access to it in other States."

Most legal observers expect that the court is well on its way to formally overturning Roe and Casey, the precedents recognizing a right to get an abortion, or to so drastically alter the interpretation of this right that they may as well have been overturned. But it's widely believed the court will use an upcoming case about a Missippi abortion law if it truly does intend to make major changes to its precedent. It's much less clear how the court will handle the Texas case after oral arguments.

Mitch McConnell makes a mockery of Sinema and Manchin's defense of the filibuster

Senate Minority Leader Mitch McConnell seems to be almost intentionally making a mockery of the small number of Democratic senators who continue to defend the filibuster.

Democratic Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona have vocally opposed any effort to change the chamber's rules that require 60 votes to proceed on most legislation. Many Democratic lawmakers and advocates have called for the filibuster to be abolished, which would make it easier for the party to enact various pillars of its agenda.

The filibuster issue has once again come into focus because the debt ceiling. The American government is approaching the statutory limit on the amount of money it can borrow to fund the spending that Congress has already mandated, and if the limit is reached sometime later in the month, the country may go into default. The actual consequences of default are unknown because it has never happened before, but many analysts believe it would be economically calamitous and a devastating blow to the United States' financial standing.

Few people seriously think default is a good idea. But McConnell has taken the firm position that every Republican in the Senate will refuse to vote to raise the debt ceiling, and will in fact use the filibuster to prevent Democrats from doing so. His intention appears to be to force Democrats to use the budget reconciliation process in order to waste time and make their lives more difficult — even though the Democrats consistently voted with the GOP to raise the debt ceiling when Donald Trump was president. Democrats have refused to play along with McConnell's threats, setting up an extraordinarily high-stakes game of legislative chicken.

The Democrats do have another option to raise the debt limit. They could unilaterally change the filibuster rules to allow for the debt ceiling to be easily raised with just 51 votes. Manchin has already ruled this out, however, and Sinema likely agrees, since she's shown no sign of wavering from her previous stance.

The problem for them is that McConnell's hostage-taking exposes the central argument both Sinema and Manchin have made for keeping the filibuster as a fraud.

In separate op-eds, they have claimed that the 60-vote filibuster threshold encourages bipartisanship. Sinema wrote:

I understand bipartisanship seems outdated to many pundits. But the difficult work of collaboration is what we expect in Arizona. And I still believe it is the best way to identify realistic solutions — instead of escalating all-or-nothing political battles that result in no action, or in whipsawing federal policy reversals.
Since I was elected to Congress, a bipartisan approach has produced laws curbing suicide among our troops and veterans, boosting American manufacturing, delivering for Native American communities, combating hate crimes, and protecting public lands.
It's no secret that I oppose eliminating the Senate's 60-vote threshold. I held the same view during three terms in the U.S. House, and said the same after I was elected to the Senate in 2018. If anyone expected me to reverse my position because my party now controls the Senate, they should know that my approach to legislating in Congress is the same whether in the minority or majority.
Once in a majority, it is tempting to believe you will stay in the majority. But a Democratic Senate minority used the 60-vote threshold just last year to filibuster a police reform proposal and a covid-relief bill that many Democrats viewed as inadequate. Those filibusters were mounted not as attempts to block progress, but to force continued negotiations toward better solutions.

And Manchin wrote:

The filibuster is a critical tool to protecting that input and our democratic form of government. That is why I have said it before and will say it again to remove any shred of doubt: There is no circumstance in which I will vote to eliminate or weaken the filibuster. The time has come to end these political games, and to usher a new era of bipartisanship where we find common ground on the major policy debates facing our nation.

Many have already criticized these arguments, pointing out that the filibuster incentivizes inaction rather than compromise and that eliminating the 60-vote threshold might actually increase the amount of bipartisan legislation.

But the GOP's current use of the filibuster is the height of absurdity. It has nothing to do with bipartisanship. Even McConnell explicitly agrees that the debt ceiling must be raised. He is simply using the filibuster and the threat of economic disaster to force the Democrats to run through procedural hoops that will make it harder to achieve their policy agenda. It is exactly the kind of "political game" that Manchin said he wanted to end by keeping the filibuster.

It would be hard to invent a more clownish and ridiculous use of the filibuster if you tried. And it's entirely enabled by Sinema and Manchin's stubborn insistence that the filibuster is good for democracy.

On Tuesday night, President Biden told reporters that changing the filibuster to raise the debt ceiling is on the table, in his mind.

But even if most Senate Democrats agree, they need complete unanimity as a party for the plan to work. McConnell, for his part, doesn't seem to think Sinema or Manchin will be budging. As NBC News' Sahil Kapur reported on Tuesday, when McConnell was asked about the possibility of a change to the filibuster, he literally smiled.

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Sinema and Manchin's plan crashes and burns after a key miscalculation

President Joe Biden met with the House Democratic caucus on Friday and confirmed what had already become clear the previous night: Democratic Sens. Kyrsten Sinema of Arizona and Joe Manchin of West Virginia have failed in their plan this week.

Multiple reports confirmed that the president's message was unambiguous. The bipartisan infrastructure bill that passed the Senate in August isn't going to make it through the House until there's a deal within the Democratic Party on the reconciliation bill — which includes a slew of tax increases and social program spending that progressives are demanding.

What this means in the short term is that the more conservative Democrats — including Sinema and Manchin, but also some House members such as Rep. Josh Gottheimer of New Jersey — aren't getting their way. They wanted the bipartisan infrastructure bill to pass the House and become law before the formal negotiations began on the reconciliation package.

Their reasons for preferring this strategy aren't entirely apparent, and they may have diverse motivations. But the fundamental logic behind the plan was straightforward. They are more enthusiastic about spending on infrastructure and have qualms with the more expansive reconciliation package. Some of them may prefer to see the reconciliation bill fail altogether rather than pass. So they wanted to get the infrastructure bill signed into law so they could take away the progressives' leverage before entering into intra-party negotiations. As long as the progressives can threaten to block the infrastructure bill — as they did successfully Thursday night — they have a strong hand to demand concessions from the conservative Democrats in the reconciliation bill.

Manchin, Sinema, and Gottheimer seemed genuinely surprised that their plan didn't work. But there's no reason for shock. The congressional progressives and the Democratic leadership said explicitly from the start that they viewed both bills as an inseparable pair — the "two-track process," as it was called. Everyone was aware of this — despite Manchin's later claims of ignorance. This process was the reason progressives tolerated the conservatives' efforts during the spring and summer to work extensively with Republicans to get bipartisan agreement in the Senate on the infrastructure bill.

Sinema and Manchin were central players in the Senate negotiations, which were a subject of pride for both of them. They clearly concluded that, having negotiated the infrastructure deal in the Senate, they could pressure the House to pass the same bill. They would then have the upper hand in the reconciliation negotiations, if they even allowed such talks to take place.

But Sinema and Manchin miscalculated. They thought they could walk all over the House progressives and make unilateral demands without giving up any concessions. They thought their crucial votes in the Senate and their small number of allies in the House Democratic caucus gave them the power to dictate the terms of the whole process.

It didn't work because the progressives were able to stick together. Led by Democratic Rep. Pramila Jayapal of Washington, the Congressional Progressive Caucus consistently and convincingly promised that it had enough votes to tank the infrastructure bill without a deal on the reconciliation package. This threat kept House Speak Nancy Pelosi from even bringing the bill up for a vote in her chamber this week, despite her previous pledges to the conservative Democrats to do so. And Sinema and Manchin never even bothered to garner enough votes from House Republicans to subvert such a threat from the progressives.

Many media outlets framed this as a failure for the Biden presidency. It's possible that will end up being true, if neither bill ever passes. But some observers argued that progressives are really doing Biden a favor — whether he currently agrees or not — by using their leverage against the conservative Democrats and ensuring that more of his agenda gets passed. And Manchin and Sinema have been forced to grudgingly enter into real negotiations over the reconciliation bill, a sign that deliberative progress is actually being made.

Biden reportedly acknowledged Friday that the progressives will have to accept a smaller reconciliation bill than they were hoping for — currently pegged at $3.5 trillion — but it will quite likely be bigger than it would've been if they had caved this week. And the president said Friday that he still believes Congress will get the work done:

So Biden's not a failure — at least not yet. What failed is Sinema and Manchin's plan. They thought they could force their infrastructure bill through after treating members of their own party worse than they treated Senate Republicans. It didn't work. They can keep negotiating, of course, and they have every reason to. But it won't be on the terms they'd hoped.

Justice Alito lashes out at a journalist's criticism as 'ridiculous'

U.S. Supreme Court Justice Samuel Alito singled out a specific journalist for criticism on Thursday during a defensive speech at the University of Notre Dame. He used the event to respond to growing outrage about the court's use of the "shadow docket," in which it weighs in on ongoing cases without oral arguments or extended opinions.

Adam Serwer of the Atlantic has been among those to recently call out the court's increasingly aggressive use of the shadow docket. Writing about its recent decision to allow a Texas law banning abortions after 6 weeks of pregnancy to go into effect, Serwer wrote: "The conservative majority on the Supreme Court was so eager to nullify Roe v. Wade, the 1973 precedent securing the right to abortion, that it didn't even wait for oral arguments."

Without naming Serwer or the Atlantic, Alito latched on to this quotation and attempted to refute it.

"Put aside the false and inflammatory claim that we nullified Roe v. Wade," Alito said. "We did no such thing, and we said that expressly in our order. I quote: 'The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. ... this order is not based on any conclusion about the constitutionality of Texas's law...'"

He continued: "So, the statement is flatly wrong, and the suggestion that we should've held oral argument is ridiculous."

Alito's response is wholly unresponsive to Serwer's actual claim. First, most clearly, Serwer did not suggest that the justices should've held oral argument before issuing their order. His point, quite obviously, is that at the very least the court should wait to hold oral arguments and before doing something as upending precedent on abortion law. That's what the court did by allowing the Texas ban to go into effect based on a technicality, even though there were clear immediate harms caused by the obviously unconstitutional law. Alito's cheap shot here shows either a lack of interest in taking criticism seriously or poor critical reading skills, neither of which are qualities one would hope to see in a Supreme Court justice.

More to the point, though, Alito's claim that the court didn't nullify Roe v. Wade because it didn't address the constitutionality of abortion bans doesn't hold up either. If Serwer had claimed that the court had overturned Roe, Alito would arguably be right on a technicality. But nullifying isn't the same as formally overturning precedent. Serwer's point is that the court effectively rendered Roe's protections void in Texas, which is undoubtedly true. The Texas ban, which clearly flies in the face of Roe, is in force and is in fact impeding the ability of women to get abortions. That's what it means for the protection of a legal right to be nullified.

Alito's argument that the majority in the Texas case claimed it wasn't making a decision on the constitutionality of the law doesn't change the fact that rights have been nullified. And the claim that the decision was solely based on the technical aspects of the law, and not the justices' beliefs about the merits of case, doesn't pass the laugh test. There's no serious doubt that the court would've acted differently if, for example, Massachusetts had used a similarly structured law to ban gun ownership.

Serwer, responding to Alito, noted that the justice's comments offered more evidence for an argument he made in a separate article.

In that piece, Serwer wrote:

The current makeup of the Roberts Court is itself the outcome of a partisan battle that has spanned decades, one in which the conservative legal movement has won a tremendous victory that is certain to shape American life for generations to come. Anticipating their future triumphs, though, the very justices championed by this movement have taken to denying both this victory and its implications, insisting that this casino is resolutely opposed to gambling—in fact, it's not a casino; it's a church, and its critics are engaging in acts of civil blasphemy. With absolute control of the Court, the conservative legal movement's main obstacle is the fact that its extreme views are unpopular. When those views are imposed on the public in the future, the justices want to be able to claim that their decisions are the result of impartial legal reasoning, rather than motivated reasoning by committed right-wing ideologues. But that doesn't make the proposition that the justices are free of partisanship any less ridiculous.

A congressional hearing exposes the media and GOP's biggest myths about the Afghanistan withdrawal

Top military leaders appeared before the U.S. Senate Armed Services Committee on Tuesday, taking questions from lawmakers about, among other topics, President Joe Biden's withdrawal from Afghanistan. Biden has faced heavy criticism for the chaotic evacuation and has seen his approval numbers decline since it was carried out. But despite much of the media's framing and the Republicans' spin, Biden's actions and choices were largely vindicated by the day's testimony.

CNN, for one, didn't see it that way. It aired a segment Tuesday afternoon focusing on the fact that officials testified that they advised Biden to leave 2,500 troops in Afghanistan rather than pull out completely at the end of August, as he did. Host Jake Tapper said this contradicted Biden's remark in an ABC News interview that he hadn't acted against the generals' advice.

Since the withdrawal, many commentators in the media concluded that the chaos that resulted must be blamed on Biden. Backed by military hawks, many of whom helped launch the disastrous War on Terror in the first place, pundits grasped for concrete failures they could pin on Biden. CNN and Tapper seemed happy to latch on to this one: Biden didn't listen to the generals. And to make it worse, he lied about it.

Texas Republican Sen. Ted Cruz seized on this issue too:

But this framing of the hearing was superficial and misleading.

When Biden was asked by ABC News about reports about the generals advising him to leave troops in Afghanistan, he gave a defensive and admittedly confusing answer. At one point, he said he couldn't recall anyone giving him this advice. But he also said that the generals were "split" on the issue, directly implying that some of them had, in fact, given this advice. It was a squirrelly answer, to be sure, but it's not a major cover-up.

And the reality isn't a mystery at all. In fact, the central narrative of Biden's decision to pull out of Afghanistan was precisely that he was going against the mainstream views of the hawks in the national security community and the top military brass. Many argued that this was what made the decision bold and difficult for Biden, and it's why Presidents Donald Trump and Barack Obama before him were never able to leave the country, despite their stated desires to end such conflicts. Biden finally stood up to the generals.

After all, the general's advice to leave behind 2,500 troops wasn't a piece of tactical wisdom that Biden ignored. They were asking him to abandon his central policy objective on Afghanistan, which was to get out. They were also asking him to abandon the deal Trump had made in 2020 to finally leave the country.

For the media to latch on to this criticism is to give away the game so many of Biden's critics in the commentariat have played. It was a constant refrain from critics during the withdrawal that Biden's choice to leave — a highly popular position among voters — wasn't the problem; the problem was the way Biden did it. That argument completely collapses if one takes the position that the thing Biden could have done to withdraw better was not withdraw at all.

Indeed, despite the fact that so many of Biden's critics were desperate to say he botched a withdrawal that, in theory, could have been run properly, Chairman of the Joint Chiefs of Staff Mark Milley gave testimony completely contradicting this view.

"From an operational and tactical standpoint, [the evacuation] was successful. Strategically, the war was lost. The enemy is in Kabul," Milley said. "It was a logistical success but a strategic failure."

This is precisely what many in the media and the GOP refuse to acknowledge. The evacuation actually went off remarkably well, given the conditions it was carried out under. The military didn't expect the Afghan government to collapse as quickly as it did, but once it fell, the U.S. implemented a high-stakes plan to evacuate more than 100,000 people from a hostile country with impressive agility.

The strategic failure, such as it is, also isn't Biden's. It was a failure of the war itself, which began 20 years ago. But that fault doesn't lay with the Biden presidency. He came in with the Trump administration's agreement to leave the country already in place and with an American people who were ready to see the war end. And under his leadership, the military carried out a successful evacuation from a dismal situation.

Milley even admitted that, had the president followed his and others' advice to leave in 2,500 troops, the Afghan government wouldn't have been able to sustain itself when U.S. forces withdrew.

"The end-state probably would've been the same, no matter when you did it," he said.

And Defense Secretary Lloyd Austin admitted that, had the U.S. stayed behind past August, it would have reignited the war and required more troops to be sent in:

These facts effectively demolish the mainstream criticisms of Biden on Afghanistan. The evacuation was a logistical success. The main alternative Biden was presented with by the generals was leaving 2,500 troops behind. That would've reignited war with the Taliban, required more troops, and it wouldn't have fortified the Afghan government to better resist the Taliban in the future. It would've just been kicking the can down the road, and whenever the U.S. finally decided to pull out for real, the "end-state probably would've been the same."

But Biden's critics refuse to learn these lessons, even when they're presented under oath.

There is one major criticism of Biden on Afghanistan that does have merit, though, but Republicans and members of the media rarely raise it. He was much too slow in issuing Special Immigrant Visas that were already in the pipeline for Afghans who had helped the U.S. military and wanted to leave. And he should've made it much easier for refugees of all kinds to leave the country and come to the United States. Biden was far more permissive of accepting Afghan immigrants than the Trump administration was, but not nearly to the extent demanded by the circumstances and justice.

That's a very different story from the one we're hearing. But it's what the public should know.

Nancy Pelosi announces that she's caving to conservative Democrats' demands

On Monday night, multiple outlets reported that House Speaker Nancy Pelosi told her caucus that she is giving in to the demands of conservative Democrats in the ongoing negotiations over two separate spending bills.

Throughout the months-long negotiation process, it has been the position of President Joe Biden, Pelosi, and progressive Democrats in Congress that the two bills could only be passed together, not one at a time. This was crucial because while a limited but pivotal number of more conservative Democrats in Congress are passionate about passing the smaller, bipartisan bill focused on funding the nation's physical infrastructure, progressives are more committed to passing the larger package focused on climate policy and social spending programs. By tying the two packages together, all sides of the caucus could be satisfied, and Biden could make significant progress in carrying out his agenda.

But those plans have come crashing down. After the Senate passed a bipartisan infrastructure bill this summer, some conservative Democratic lawmakers started demanding that the House pass the legislation and the president sign it into law as soon as possible. But members of the Congressional Progressive Caucus, led by Rep. Pramila Jayapal of Washington, said they would vote down the bipartisan bill if it came before the House alone. They fear that if the bipartisan bill becomes law first, the conservative Democrats will have little incentive to work on the larger package, known as the reconciliation bill. Democratic lawmakers like Arizona's Sen. Kyrsten Sinema and West Virginia's Joe Manchin will be able to dramatically curtail the reconciliation bill's provisions and undermine its goals or even block it altogether, and the progressives will have no way to force their hand.

On Monday, though, as CNN's Manu Raju reported, Pelosi told her members that they will be moving forward to a vote on the bipartisan bill on Thursday without the reconciliation bill.

Pelosi's explanation makes no sense — it's just a way for her to save face while caving. The whole point of passing the bills together was to keep everyone on board and united. But the conservative Democrats have undermined that plan by making demands that the reconciliation bill be scaled back and that the infrastructure bill be passed immediately — which is exactly what the progressives feared all along.

It's possible Pelosi thinks this is her best bet. Manchin, Sinema, and their allies may be so furious if the infrastructure bill doesn't pass first that they'll tank both bills. But if that's the case, it's not clear why Pelosi made the two-track plan in the first place. By caving on it now, she just exposes the weakness of her own position.

And it may end up costing all of them. Jayapal has said repeatedly that she had enough votes to block the infrastructure bill if it's brought to the floor before the reconciliation package. It's possible she's misguided or bluffing, but if not, a failed vote would be a humiliating loss for Pelosi on the House floor and a major obstacle for the Democrats' legislative agenda.

Legal expert says Trump's rally admission will help Georgia prosecutors investigating him

Former President Donald Trump may have inadvertently helped contribute to the criminal case against him brewing in Georgia during his rally on Saturday, according to one former federal prosecutor.

Joyce Vance, a legal analyst for MSNBC, said on Twitter that his comments about a call to Gov. Brian Kemp after the 2020 election would be valuable to the district attorney in Fulton County.

"I got this guy elected!" Trump told rallygoers of Kemp in one widely viewed clip. He quickly added, however, that there was no "quid pro quo."

He continued: "I said, 'Brian, listen, you know, you have a big election integrity problem in Georgia. I hope you can help us out and call a special election, and let's get to the bottom of it for the good of the country."

"The evidence to support the Fulton County DA's investigation just keeps getting better -- prosecutors don't always have a target on tape explaining his thought process," said Vance in response to the clip. "Also probative on Trump's state of mind on Jan 6."

Vance also linked to a recent report from the Brookings Institution, which argued that Trump is in serious legal peril from the Fulton County prosecutors because of his post-election conduct. This includes the call to Kemp but also other efforts to have his loss to Biden in the state overturned, such as his call to Secretary of State Brad Raffensperger. The report argued that Trump may be guilty of soliciting election fraud or related crimes.

"Looking to the full context and circumstances of Trump's interactions with Kemp, Raffensperger, Watson, Carr, and others—as well as to his broader pattern of conduct throughout the relevant time period—it seems clear that Trump intended that Georgia officials engage in conduct that would alter the vote count, undo the certification of the election, and produce a new certification in Trump's favor," the report explained. "Even if Trump acted in what he considered good faith, the conduct that he solicited, demanded, urged, and threatened was itself criminal—and for that reason, Trump can be held liable."

However, it remains unclear if the local prosecutors with jurisdiction ultimately intend to bring any criminal charges against the former president.

In other Trump-related news, former president Donald Trump's newest attorney, Alina Habba, previously served as general counsel for a parking-garage company. WATCH:

Trump's new 'low-profile' attorney served as general counsel for a parking-garage company

Democrats' big bipartisan mistake is already backfiring

When Joe Biden ran for president, he touted his history in the Senate and as vice president of making deals across the aisle and working with Republicans. He said that he would be able to productively cooperate with the GOP if he were elected — and that the fierce partisan divisions would cool.

"With Donald Trump out of the way, you're going to see a number of my Republican colleagues have an epiphany," he said in November 2019. "Mark my words."

And it's not just Biden. Many Democrats, especially the more conservative members of the coalition, hold up bipartisanship as a virtue in itself, much more often than Republicans do.

But about eight months into the Biden presidency, this strategy isn't paying dividends. Arguably, it's been dramatically weakening the Democrats' strategic position and backfiring on them.

This was evident in South Carolina Republican Sen. Tim Scott's recent appearance on CBS News. He discussed his negotiations with New Jersey Democrat Sen. Cory Booker on police reform, negotiations that began in the wake of George Floyd's death and the subsequent racial justice protests. They recently publicly admitted that their efforts to reach a bipartisan deal on legislation have failed.

And not only has this effort failed, but Scott used the failure as an opportunity to attack Democrats.

"We said simply this: 'I'm not going to participate in reducing funding for the police after we saw a major city after major city defund the police,'" Scott told CBS. "Many provisions in this bill that [Booker] wanted me to agree to limited or reduced funding for the police."

The Democratic Party does not want to defund the police. Biden came out against it forcefully during the 2020 campaign, and he has consistently pushed to increase funding for cops. Booker, too, has vocally opposed defunding the police. The Democratic Party sees the issue as toxic and has desperately tried to run away from it, with a few rare exceptions in the ranks of Congress. Meanwhile, the Republicans have tried to use the issue against Democrats, accusing them of holding a position they have explicitly rejected and campaigned against. The legislation Booker and Scott worked on did consider conditioning some police funding on reforms, but this isn't an effort to defund the police — it's one of the key methods Congress uses to influence local policy across sectors. Scott is being deliberately dishonest.

But this is the reward Democrats get for trying to reach a bipartisan deal on police reform. They got no deal, wasted months of effort, and they gave their opponents an opportunity to paint them with a label they've desperately been trying to avoid.

And this was all entirely predictable. Scott himself was never a genuine, good-faith negotiator on criminal justice. Last year, in an interview with Vox, he said the biggest issue in policing was "character" — which is exactly the quality that legislation has no control over. And he flat-out rejected the idea of any reforms to the doctrine of qualified immunity, which offers sweeping protection for police abuses and violation of rights. In short, this was doomed from the start. But Democrats insisted despite the evidence that Republicans could be worked with on this issue, presenting them to the public as if they were more reasonable than they actually are.

This also happened with the Jan. 6 commission. The Democrats spent months negotiating with Republicans to establish an independent, bipartisan commission to study the Capitol insurrection. But in the end, the Republicans in the Senate blocked the proposal. So House Speaker Nancy Pelosi instead set up a select committee within the chamber to conduct the investigation. The wasted bipartisan negotiations left a weaker body with less authority to have less time than it otherwise would have to do its work. And it put a long delay between the event itself and the start of the investigation, which likely hinders efforts to reliably discern the truth.

The most serious failure of the chimera of bipartisanship, however, is playing out now. Despite Senate Minority Leader Mitch McConnell's insistence that Republicans would take the reckless and nihilistic stance of opposing any increase to the debt ceiling — essentially threatening to throw the U.S. into default and triggering financial and legal chaos — Democrats have insisted on believing that the GOP will cooperate.

It's not clear how this circumstance will play out. And it's undoubtedly true that obstinant Republicans deserve the vast share of the blame for any negative consequences. But the Democrats' commitment to reach for bipartisanship and to believe that the GOP isn't that out-of-control destructive force that it is has helped put themselves and the country in a tough spot. Democrats could have raised, or even essentially abolished, the debt ceiling when they passed the American Rescue Plan in March. Or they could have made a plan to do it on their own weeks ago. Now they're scrambling at the last minute to fund the government, raise the debt ceiling, and pass the centerpiece of Biden's presidential agenda virtually all at the same time. Even if everything ends up working out this time, governing on the precipice is not healthy for the country, and it could have unforeseen consequences.

And if Democrats weren't so devoted to bipartisanship, and to being seen reaching across the aisle, it all could have been avoided. They seem to think that they can only win elections if they convince voters that they can work with Republicans. But they ignore the alternative possibility of telling voters a potentially more persuasive story: The Republicans are dangerous and uncooperative, and they should be kept out of power.

Defenders of bipartisanship argue that they can point to one major recent success: The bipartisan infrastructure bill passed by the Senate.

But that deal is not, in fact, a success. It hasn't even passed the House yet, and it might fail if it comes up to a vote this week because many of the progressives in the Democratic Party aren't on board yet. These Democrats aren't happy with passing the bipartisan deal unless the much more ambitious reconciliation package, which only needs Democratic votes, passes too.

But Arizona Democrat Sen. Krysten Sinema, one of the chief negotiations of the bipartisan bill, has threatened to tank the reconciliation package if the bipartisan deal doesn't pass first. In other words, she's using the bipartisan deal — which many progressives argue is in fact too influenced by the fossil fuel lobby to be any good on its own — as a strategic bludgeon against her own party's agenda. Is this what bipartisanship is supposed to achieve?

Moreover, there's no sign that the "achievement" of passing the bipartisan bill in the Senate has done anything from the Democratic Party's fortunes. Biden's approval rating has only fallen since then. This is largely for unrelated reasons, most likely, but it just shows that any supposed boost in public opinion that a bipartisan bill is supposed to achieve is relatively insignificant.

Of course, Sinema and West Virginia Democrat Sen. Joe Manchin made pretty clear they wouldn't move forward on a spending package if the bipartisan deal didn't happen first. So it's possible Biden, Pelosi, and the rest of Democratic leadership has no choice but to take this route. And it's Manchin and Sinema who are leading the fight to preserve the filibuster, which drastically limits what the Democratic Party can achieve on its own. But the point is that the route itself isn't worth taking the first place, and Manchin and Sinema's insistence on this path is not in the party's interest.

Why legal experts are so disturbed by a Trump lawyer's 6-point plan to overturn the 2020 election

A new CNN report on Monday revealed a memo from a lawyer working with former President Donald Trump that detailed a plan to overturn his loss to Joe Biden on Jan. 6. The report reveals findings from the new book, "Peril," by reporters Bob Woodward and Robert Costa.

It included a copy of the memo from conservative law professor John Eastman, showing a six-point plan to leverage then-Vice President Mike Pence's role as the president of the Senate to control Congress's vote counting and throw out the votes of seven states.

This would leave Trump in the lead with 232 Electoral College votes over Biden's 228. Then, according to Eastman, Democrats would let out "howls." (The whole memo shows open contempt for Democrats.) But if they object, he argued, Pence could declare the election inconclusive, at which point it would move into the House. And because Republicans control a majority of the House delegations, they could select Trump to carry out a second term.

"The main thing here is that Pence should do this without asking for permission – either from a vote of the joint session [of Congress] or from the Court," the memo said. "The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind."

Pence, of course, ultimately disagreed with these arguments and refused Trump's pleas to carry out the plan. And despite the insurrection carried out by Trump's followers on the Capitol that day, Pence fulfilled his role as expected, and Congress counted all the Electoral Votes as they were actually awarded, affirming Biden as the winner.

But even though the plan failed, the document remains a disturbing record of the time. It's impossible to know what would have happened if Pence had tried to go along with the plan — there might've been outrage and chaos in the streets, just as there were outbursts of celebration when Biden was declared the winner in November 2020. But if the vice president could just throw out the votes of states he didn't like, it would indisputably be the end of democracy in the United States.

Many legal experts found the document chilling, deeply disturbing, and absurd.

"This 'plan' is laughable, but we shouldn't laugh," said conservative lawyer David French. "If carried out, it would have led to the country's greatest political crisis since April 1861. And Eastman was no mere internet crank. He was a law professor and close to POTUS in the final days."

Steve Vladeck, a law professor at the University of Texas, agreed: "This memo is horrifying. As is the fact that it was written by a (former) law professor. As is the reporting that Pence agonized over the matter. As is so much else about how close we came to a coup (fine — an autogolpe) on 1/6. As is how little we're doing to respond to it."

Asha Rangappa, who teaches at Yale Law School, called the memo a "sinister plan" that would let "Trump to unconstitutionally grab and hold on to power." She added: "Note, by the way, that he's pretty confident the R's would go along with it until then end."

However, the CNN report notes that GOP Sen. Mike Lee of Utah, was a staunch opponent of the plan when it was presented to him.

"It was a dress rehearsal," said Rick Hasen, a prominent expert in election law. "Here's how to do the coup next time, with more loyalists in key places." Hasen argued that there are various ways lawmakers could strengthen our elections against such attempts at subversion, including reform of the Electoral Count Act.

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'Stunning': Justice Sotomayor writes a furious dissent as the Supreme Court lets Texas violate Roe v. Wade

Supreme Court Justice Sonia Sotomayor issued a clearly furious dissent late Wednesday night to the majority's order allowing a Texas law banning abortions after six weeks of pregnancy to stay in force.

"The Court's order is stunning," Sotomayor wrote. "Because the Court's failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent."

She left out the traditional word "respectfully" before "dissent" — a telltale sign that a justice is livid.

The order came in response to a challenge, brought by abortion providers among others, against a Texas law that had been making its way through the lower courts. It had been set to go into effect on Sept. 1, prompting urgent demands that the Supreme Court intervene to stall its implementation until the court process reaches its natural conclusion. Usually, restrictive abortion laws are paused, in part because the existing judicial precedent is so clear that they are unconstitutional.

But the Texas law is unique, since instead of issuing to the state the power to block abortions, it lets regular citizens bring lawsuits against anyone who provides an abortion or "aids and abets" an abortion in the state. The citizen can be awarded $10,000 through such a suit. In an unsigned order, five of the court's conservatives said that this unprecedented feature of the law introduces enough uncertainty about its legal status to undermine the case for issuing an injunction at this time.

But Chief Justice John Roberts, along with the court's three liberal justices, dissented. Sotomayor's dissent was the most impassioned.

"Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State's enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State's own invention," she wrote.

She noted that the law "prohibits care for at least 85% of Texas abortion patients and will force many abortion clinics to close," according to the plaintiffs. Allowing it to stand clearly violates Supreme Court precedent as established in Roe v. Wade and Planned Parenthood v. Casey, which upheld the right to access abortions. And she noted that no one even tries to argue that the Texas law is constitutional. Instead, Texas lawmakers tried to "circumvent" the Constitution by outsourcing enforcement of the law.

"In effect, the Texas Legislature has deputized the State's citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors' medical procedures," Sotomayor explained. "Taken together, the Act is a breathtaking act of defiance—of the Constitution, of this Court's precedents, and of the rights of women seeking abortions throughout Texas."

The court's majority, she said, is rewarding Texas for its "gambit."

"This is untenable," she wrote. "It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry. ... [The] Court has rewarded the State's effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the Court's precedents, through procedural entanglements of the State's own creation. The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law."

Justice Elena Kagan also wrote a dissent, though "respectfully," criticizing the majority for abusing the "shadow docket" — the orders it issues outside of the usual lengthy procedures of briefings, oral arguments, and detailed opinions.

"[The] majority's decision is emblematic of too much of this Court's shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend," she wrote.

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Matt Gaetz claimed he was a victim of an 'extortion' plot — but new DOJ charges tell a different story

A new grand jury indictment released on Tuesday revealed new details surrounding the complex and sordid case of Florida Republican Rep. Matt Gaetz.

The grand jury charged Florida man Stephen Alford, 62, of attempting to commit wire fraud and conceal evidence. Previous reporting had found that there was a federal investigation into a scheme by Alford and others to ask Gaetz's father, Don Gaetz, for $25 million to fund a rescue mission in Iran.

Rep. Gaetz had claimed that this request was part of an "extortion" attempt related to the investigation into allegations that he has been involved in child sex trafficking, corruption and other crimes. An associate of his has already agreed to plead guilty to these charges, though Gaetz denies them. When the investigation into his conduct first emerged, Gaetz tried to distract from the scandal by pointing to the "extortion" tied to Alford.

He tried to argue that the investigation of him was driven by duplicitous agents out to get him. But it turns out that the supposed "extortion" attempt wasn't quite that — at least insofar as the Justice Department sees it.

Rep. Gaetz's argument was that the plot sought to use the investigation to extort his father out of money. What the indictment indicates, however, is that the plot wasn't about extortion, just fraud. It says Alford falsely promised he could get a presidential pardon for Gaetz in exchange for money, and he used interstate wires to do it.

When I previously wrote about Gaetz's extortion allegations in April, I argued that they were not supported by the public evidence. For example, one document obtained by the Washington Examiner said that the plan was that after the Iran rescue attempt, the team will "strongly advocate that President Biden issue a Presidential Pardon, or instruct the Department of Justice to terminate any and all investigations involving Congressman Gaetz." As I argued at the time, that doesn't look like extortion. That just looks like a silly and obviously hollow promise — there's no chance President Biden would pardon Gaetz for the allegations against him or intervene in a DOJ probe to help him.

The new indictment alleges that Alford made more than hollow promises, but demonstrably false claims in an effort to obtain Gaetz family money. It claims that Alford falsely communicated to Gaetz's father (described as "D.G." in the indictment) that Biden has said he will "strongly consider" pardoning Rep. Gaetz (called "Family Member A) or ending the investigations into him. Alford also reportedly said he "will get that pardon" and that he could "guarantee" no prison time.

It also says Alford attempted to destroy or conceal evidence on an iPhone in the course of the investigation.

It's not clear how strong a case this really is against Alford. It certainly seems like a hare-brained scheme, but it's not against the law to propose a terrible idea to someone. It is a crime to lie to them in order to get their money, but Alford may argue that he was just speaking hyperbolically about his hopes for the plan rather than defrauding anyone. It may be hard to judge the allegations without additional context.

Though it probably doesn't help Alford's case that, according to the Washington Post, he has already been convicted of local and federal fraud crimes.

But what does seem clear is that — unless the DOJ comes out with another indictment — investigators didn't find substantial evidence of extortion. That's important because it undercuts the reason Gaetz was so interested in drawing attention to the Alford scheme to begin with. If the charges were being used to extort the Gaetz family, it may be reason to believe that the investigation isn't on the level and the congressman is being unfairly targeted. But that's not what the indictment suggests. Instead, it suggests that a serious investigation of Gaetz was somehow discovered by a man with a ludicrous idea, creating a spectacular but ultimately inconsequential sideshow.

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Former federal prosecutor says Kevin McCarthy's 'threatening' response to Jan. 6 committee could be criminal

Republican House Minority Leader Kevin McCarthy drew criticism on Tuesday after he issued a statement in an apparent attempt to hinder the Jan. 6 committee's ongoing investigation. Some even argued McCarthy's broadside may constitute criminal obstruction of justice.

The House select committee pursuing the case sent requests this week to social media outlets and telecommunications companies, asking them to preserve records that might be of interest to the investigation. ABC News reported:

While the requests do not single out any lawmakers or members of the Trump family by name, the committee is focusing its inquiry on Republicans closely associated with the 'Stop the Steal' effort and who spoke at the rally on the morning of Jan. 6, according to a committee source.
The committee is also interested in the records of Ivanka Trump, who worked in the West Wing, and Donald Trump Jr. and Eric Trump, who worked on their father's reelection bid.

This move apparently spooked McCarthy, prompting him on Tuesday to push back in a statement:

Adam Schiff, Bennie Thompson, and Nancy Pelosi's attempts to strong-arm private companies to turn over individuals' private data would put every American with a phone or computer in the crosshairs of a surveillance state run by Democrat politicians. If these companies comply with the Democrat order to turn over private information, they are in violation of federal law and subject to losing their ability to operate in the United States. If companies still choose to violate federal law, a Republican majority will not forget and will stand with Americans to hold them fully accountable under the law.

From the start, McCarthy is over his skis. He accused the Democrats of "attempts to strong-arm private companies to turn over individuals' private data," but the committee's preservation request doesn't yet rise to that level. And it's not clear what "federal law" the committee's request would violate.

But worse than misstating the facts, McCarthy may be improperly interfering in the investigation. Ken White, a former federal prosecutor and legal analyst who is typically restrained in his application of federal law, argued on Twitter that there's a decent, if not decisive, case that McCarthy's threat is criminal.

"This may not be criminal, but it is a colorable law school exam question for obstruction of justice, worth the analysis," White wrote. "In effect [McCarthy] is threatening to use future unspecified legislation to punish witnesses for responding to legal process. I could convince a jury he's acting with the required corrupt mental state. There are other complications."

He linked to the federal obstruction of justice statute in the U.S. criminal code for reference.

"Now, maybe McCarthy genuinely believes the requests for docs are unlawful. There are remedies for that -- like suing and seeking injunctive relief, a protective order preventing compliance. You know, the rule of law. What you do if you have a legal argument," he continued. "By contrast, 'we think these official demands from Congress are invalid and if you abide by them we will use majority control of Congress to punish you' sounds like a good example of 'corruptly' under the statute to me."

Glenn Kirschner, another former federal prosecutor who tends to be more enthusiastic about applying criminal statutes to novel situations, agreed:

It's nevertheless extremely unlikely that the Justice Department under Attorney General Merrick Garland would pursue this case. He's shown a clear hesitancy to act in any way that might be perceived as overly partisan, and it's hard to imagine he would stick his neck out on a relatively novel case that targets the House minority leader.

However, it's notable that McCarthy is skating so close to the legal line, if not crossing it. Legal expert Elizabeth de la Vega argued it suggested a guilty conscience on his part:

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A federal judge says the DEA may be required to reclassify marijuana

In a concurrence Monday to the Ninth Circuit Court of Appeals three-judge panel ruling on a case about marijuana, U.S. Judge Paul Watford warned the Drug Enforcement Agency that it may soon be forced to reclassify the drug.

Marijuana is currently classified by the DEA as a "Schedule I" substance, which are "defined as drugs with no currently accepted medical use and a high potential for abuse," according to the agency's website. This scheduling gives the DEA authority to regulate the substance and can factor into criminal charges. Advocates have long sought to change the DEA's scheduling of marijuana alongside drugs like heroin, which would, in part, make it much easier for researchers to study its medical uses. The DEA previously claimed that Schedule I drugs were the "most dangerous drugs," but it removed this language in 2016.

The new ruling came in response to a lawsuit brought Dr. Suzanne Sisley of the Scottsdale Research Institute and three veterans. They sued after Stephen Zyszkiewicz, an inmate in California, and Jeramy Bowers, who takes medical cannabis, were denied in their petition to the DEA to have the drug reclassified.

The court found that this process didn't justify the court's intervention at this time. Against the government, the panel concluded that Sisley and the other petitioners do have standing to bring their case against the DEA. But they didn't go through the proper process with the DEA before bringing the suit, so for now, their request is stalled.

But in a concurrence pointed out by Gabriel Malor on Twitter, Judge Watford offered strong encouragement to the effort brought by Dr. Sisley and the others. Though they didn't go through the proper steps to force the DEA to act now, Watford said, future cases have a strong argument for reclassification and may well succeed:

I write separately to note that, in an appropriate case, the Drug Enforcement Administration may well be obliged to initiate a reclassification proceeding for marijuana, given the strength of petitioners' arguments that the agency has misinterpreted the controlling statute by concluding that marijuana "has no currently accepted medical use in treatment in the United States."

This sends a clear message to Sisley and others who would like to see the DEA change marijuana's scheduling. There's a strong case to be made that marijuana has "accepted medical use in treatment in the United States," and therefore, it shouldn't be considered a Schedule I drug by the DEA. Please, he is essentially saying, try again.

Madison Cawthorn's office desperately tries to backpedal after he goes off the rails in conspiratorial screed

At a meeting of the Macon County Republican Party this weekend, freshman Rep. Madison Cawthorn deployed extremist and incendiary rhetoric about the Jan. 6 defendants and GOP claims about stolen elections.

In one section that caught attention on social media on Monday, the North Carolina Republican responded to a question about the people who have been charged with crimes related to the Capitol insurrection by calling the defendants "political hostages." He even suggested it would be appropriate to break in and free these people from federal custody — assuming he knew their location.

"The big problem is, we don't actually know where all the political prisoners are, and so if we were to actually be able to go and try and bust them out," he said, without fully completing the thought. It's possible he realized he was crossing a serious line by discussing forcibly releasing people from law enforcement custody.

Watch the clip below:

He appeared to be significantly misguided on the key facts of the case. The argument that the right-wing protesters who stormed the Capitol during the affirmation of Joe Biden's Electoral College victory are political prisoners is exceptionally weak. The charges in the cases are largely of unequivocal crimes, such as trespassing and assault. There are some charges that include political elements, such as allegations of terroristic intent, but that's precisely because many of the attackers were committing crimes for an explicitly political purpose. And the prosecutions themselves are not partisan — they began under the Trump administration's Justice Department and continued under the current leadership.

And according to Insider, a large majority of those charged in the case have been granted pretrial release — meaning they're not prisoners at all, let alone political hostages.

Other comments Cawthorn made, however, shed greater light on why he sees the defendants as victims: He is sympathetic to both their objectives and their means.

“If our election systems continue to be rigged, continue to be stolen, then it's gonna lead to one place. And that's bloodshed," he said, as Daniel Dale reported. "And I will tell you: as much as I am willing to defend our liberty at all costs, there's nothing that I would dread doing more than having to pick up arms against a fellow American. And the way that we can have recourse against that is if we all passionately demand that we have election security in all 50 states."

It is, of course, extremely dangerous to suggest that violence and taking up arms is the appropriate response to false claims about election rigging. The allegations that the 2020 election was somehow rigged against Donald Trump and the GOP have been repeatedly debunked. Promises of bombshell evidence or decisive court cases that will prove the wrongdoing have repeatedly failed spectacularly to live up to the hype. But conservatives like Cawthorn and his ilk continue to cling to the meritless idea, adding fuel to the flames of right-wing political grievance and violence.

After news of his comments began to spread, Cawthorn's office tried to distance him from the message he communicated.

"Cawthorn is CLEARLY advocating for violence not to occur over election integrity questions," a spokesperson told Dale. "He fears others would erroneously choose that route and strongly states that election integrity issues should be resolved peacefully and never through violence."

Separately, the congressman's office tried to soften his discussion about the Jan. 6 defendants.

"Congressman Cawthorn was referring to actively working on getting answers about political prisoners following January 6th. Nothing else," it told The Daily Beast. "Congressman Cawthorn wants due process for the prisoners and does not believe that is what they are currently receiving."

Neither of these clarifications is at all convincing in reflecting what the congressman was trying to say. Talking about "busting" out prisoners is not at all related to investigating due process. If Cawthorn had had a slip of the tongue, he could have easily corrected it in the moment, which he didn't.

And in his remarks over the weekend, he did not say he would "never" advocate violence as a response to an election. Indeed, he suggested it could become inevitable, and that he would take part. He did clearly indicate he prefers an alternative to violence, which he called "election security in all 50 states." But the problem is that based on his support for false and debunked claims about the 2020 election, there's no reason to believe Cawthorn will ever be satisfied with American elections being run freely and fairly — that is, under conditions in which Democrats will win power some of the time. That makes his rhetoric extremely dangerous.

This all raises a big problem for House Minority Leader Kevin McCarthy. McCarthy has tried to claim that no one "is questioning the legitimacy of the presidential election." But that's not true — members of his own caucus are still trying to promote doubts about it, and suggesting that violence might be the appropriate response to the kinds of outcomes the 2020 election produced. If McCarthy wants to really be the responsible Republican leader he tries to present himself as, he needs to get control of volatile members of his party like Cawthorn.

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Ron DeSantis cites an article to oppose mask-wearing for kids — but it falls apart under scrutiny

As Florida gets hit with its third major wave of COVID-19, Republican Gov. Ron DeSantis refuses to heed calls for a more aggressive and proactive approach to controlling the virus.

Hospitalizations in the state have reached a recent peak of around 17,000, straining local resources. Average daily deaths from the virus recently have approached 250, significantly above the worst days of the previous waves. With the spread uncontrolled, many are nervously awaiting the end of the summer and the start of the school year, when millions of children will attend schools packed with classmates, all breathing the same air.

But DeSantis has opposed one of the most seemingly common-sense measures to help reduce the spread of the virus among kids: school mask mandates. He's even threatened school district funding if officials disobey him, and he doesn't seem deterred by the mass outbreaks and quarantines already affecting thousands of Florida students.

When asked about his policy this week, he lashed out at the press for advocating that students wear masks — even though this measure is recommended by the Centers for Disease Control and Prevention. To defend his position, DeSantis cited a recently published article.

"The evidence doesn't support it," he said. "There's a great article, actually in New York Magazine of all places, that went through this 3,000 words, very thorough, view of all the evidence and lack of evidence."

I was intrigued by DeSantis's citation, having not seen the article. So I tracked it down to see what kind of case it made. Unfortunately, for DeSantis, it's a compellingly written but ultimately unpersuasive argument — one he was surely too willing to accept rather than scrutinize.

The headline is modest enough, claiming simply that "The Science of Masking Kids is Uncertain." Indeed, much of the science around the virus remains uncertain. But the piece, written by David Zweig, is really a polemic against having kids wearing masks, arguing that there's no evidence to support their use and that there's significant risk of harm from using them.

He claimed vaguely that Europeans are less inclined to have students wear masks, asserting that "there's no evidence of more outbreaks in schools in those countries relative to schools in the U.S., where the solid majority of kids wore masks for an entire academic year and will continue to do so for the foreseeable future." But he didn't provide any figures or detailed comparisons of these cases, so this really isn't much to go on. He also pointed out that the World Health Organization is much less enthused about students wearing masks than the CDC is — though he neglected to mention that WHO was significantly behind the curve on recognizing the importance of masks generally for reducing the spread of the coronavirus.

The bulk of Zweig's argument actually relies on evidence from the CDC. He argued that one of its own studies of COVID-19 spread in Georgia elementary schools last fall, which he called "both ambitious and groundbreaking," shows that mask mandates did not "have a statistically significant benefit."

"In other words, these measures could not be said to be effective," he concluded.

He essentially accused the CDC of covering up its own finding, though he doesn't explain why it would want to hide these results. In fact, it's Zweig who is hiding the ball.

You wouldn't know it from reading his article, but the study Zweig cites found that the schools it examined with mask mandates for students had 21 percent less spread of the virus than in schools where masking was optional. This amount was comparable to the study's primary findings, which was that COVID-19 incidence was 37 percent lower in schools requiring masking for teachers and 39 percent lower in schools that improved ventilation.

It is true, as Zweig wrote, that the study's authors concluded that the finding about student mask mandates wasn't statistically significant. But his framing implied this was a finding that the masks don't make much of a difference for kids.

That's not so. It's completely possible mask mandates reduced the incidence of COVID by around 20 percent — a notable and important effect, to be sure — but the study itself wasn't able to make this causal claim.

Here's how the study itself addresses the finding:

The 21% lower incidence in schools that required mask use among students was not statistically significant compared with schools where mask use was optional. This finding might be attributed to higher effectiveness of masks among adults, who are at higher risk for SARS-CoV-2 infection but might also result from differences in mask-wearing behavior among students in schools with optional requirements. Mask use requirements were limited in this sample; 65.1% of schools required teacher and staff member mask use and approximately one half (51.5%) required student mask use. Because universal and correct use of masks can reduce SARS-CoV-2 transmission (6) and is a relatively low-cost and easily implemented strategy, findings in this report suggest universal and correct mask use is an important COVID-19 prevention strategy in schools as part of a multicomponent approach.

The study's authors were completely upfront about the results of their study, but they did not share Zweig's interpretation.

It's understandable that some people confuse "not statistically significant" effects with "virtually nonexistent" effects. But it's not helpful for a writer making Zweig's case to ignore the magnitude of the finding.

"One of the biggest problems with interpreting findings that are not 'statistically significant' is distinguishing between the lack of a true association versus missing a true association due to inadequate power or due to other sources of epidemiologic bias," Brandon Guthrie, a professor of epidemiology and global health at the University of Washington, wrote to me in an email. "A 21% reduction in risk, if it were true, would be meaningful, and therefore I would conclude that the study was inadequately powered to answer this question."

We should also be careful to distinguish between the effects of students wearing masks and the effects of students being mandated to wear masks. It could be possible that schools without masking mandates nevertheless have a high rate of mask-wearing. It might then be hard to distinguish the effect of the mask mandate in a study, but it would certainly be wrong to conclude from this that the masks themselves were having no positive effect.

Zweig explained that he looked for other comparable studies, directly comparing schools without mask mandates to those without, but he came up empty. He thinks this is telling, but he's really asking for too much. These kinds of studies are very difficult and resource-intensive to conduct, and there are likely insuperable barriers to conducting the kinds of studies we'd most want to see.

"The reality is that we don't have randomized trial evidence that compares mask usage for prevention of the COVID-19 virus to non-usage, holding everything else constant, in real-world settings at a population level," Guthrie explained to me. "Such a study would likely be impossible to conduct ethically, [and] even if it were ethical, would be nearly impossible to conduct practically. In the absence of that evidence, we have to rely on interpreting multiple lines of indirect evidence."

There's plenty of evidence that masks reduce the spread of COVID-19 — indeed, the study at the center of Zweig's argument offers strong support for the effect of masking adults at schools. If masks reduce the spread of the virus among adults, why shouldn't we expect that they'll do the same for kids?

Zweig did have a response to this argument: "While masks offer some protection for adults in many environments, as the adage in pediatrics goes, children are not little adults. Medicine is littered with examples of adult interventions that don't translate to children."

This point is worth considering, but it's less compelling than Zweig maintained. Masks reduce the spread of COVID because it's a respiratory illness that transmits via exhaled droplets. Masks are barriers inhibiting that process. It's hard to give a principled reason to think a simple method of interfering in the basic avenue of transmission would be effective for adults but not for children. It's not as if the virus infects children through the ear canal rather than the airway.

Zweig indicates that the physiological differences between children and adults may explain why the CDC study of Georgia schools didn't find a statistically significant benefit of masking students, though it did find one for adults. But as I noted, the study did find a large association between student mask-wearing and reduced viral spread, even if a causal inference couldn't be made. The fact that masking was shown to reduce spread from adults should heighten our credence that the reduction in spread for students under a mask mandate was a result of the intervention. Indeed, that's essentially the argument the study's authors made.

It is true that studies seem to show that children spread COVID less readily than adults do. They also get sick less and have a much lower fatality rate. And masks may not work as well on children for behavioral reasons — for example, they may take them off or adjust them more frequently, or they may not be comfortable wearing tighter-fitting masks that better reduce transmission. These may make the impact of mask mandates for kids less impactful — but that's no reason to think the effect is negligible.

Even while Zweig discounts the evidence in favor of masks, he exaggerates the evidence on the downsides. At one point, he wrote:

"There are very good reasons that the World Health Organization has repeatedly affirmed their guidance for children under 6 to not wear masks," said a pediatrician who has both state and national leadership roles in the AAP but who wished to remain anonymous because they did not want to jeopardize their roles in the organization. "Reading faces is critical for social emotional learning. And all children are actively learning language the first five years of life, for which seeing faces is foundational," the pediatrician said.

But while seeing faces in the first five years of life may indeed be quite important, that's not really relevant to whether the individual kid is masked — what matters is whether they're seeing masked faces. And most of the first five years of a child's life aren't in traditional k-12 schools. Thankfully, in much of their time at home, in outdoor settings, and in smaller groups, quite young kids should have plenty of opportunities to interact with people with uncovered faces, even during this pandemic. And it's definitely good for teachers to find multiple opportunities for students to interact maskless throughout the day outdoors, where the risk from the virus is particularly low. And teachers should strive to accommodate any students who may, for whatever reason, have a particularly difficult time wearing masks.

Everyone should agree that we want the coming school year to proceed as smoothly as possible and with as few virus-related interruptions as possible. That means using every tool we have to reduce outbreaks of COVID, including vaccination for those who are eligble, increased ventiliation when possible, and, indeed, masking in large groups whenever it's feasible.

And of course, a big factor in any discussions about mitigating COVID spread in the fall is the Delta variant. Most of the studies we've seen on COVID examined previous variants of the virus. And the major difference with the Delta variant is that it spreads even more easily than the initial form of the virus.

Zwieg dismisses concerns about Delta, writing:

A common argument right now is that the emergence of the Delta variant changes everything. Currently, some regions of the U.S. are seeing a surge of infections and hospitalizations among young people. But the numbers coming out of Britain continue to suggest that Delta is not more virulent — that is, it does not cause more severe illness on an individual basis to unvaccinated people — despite being more contagious. A pediatric immunologist at a major university hospital who was not authorized to speak publicly said, "It is not biologically plausible that the same variant somehow is more dangerous for kids in the U.S. than it is in the U.K."
More broadly, Schecter-Perkins said, "I don't think that Delta changes the calculus because it still seems clear that it doesn't cause more severe disease, so it still doesn't change the fundamental question of 'What are we trying to achieve by masking kids when they are still extremely unlikely to suffer from severe illness or death if infected?' And the adults in their lives have the opportunity to be vaccinated and also protected so we don't need to worry about transmission." The pediatric immunologist said, "Even with a new variant, the onus is on those who recommend masking kids to robustly demonstrate a meaningful benefit, especially when the pre-Delta study of the Georgia schools did not find one, and when there are obvious socio-emotional and educational harms from masking children for this unprecedented duration of time."

But increased transmissibility is precisely the concern about Delta, and it could have a major impact on viral spread at school. More kids getting COVID will certainly mean more kids getting severely ill and dying. Those numbers may, nevertheless, remain relatively quite small. But the virus's increased transmissibility may turn unmasked schoolchildren into significant vectors of viral spread in the community. And you can't dismiss this concern because the adults in the community have an option to be vaccinated. Uncontrolled spread is devastating for a community, for the vaccinated, the unvaccinated, and immunologically compromised. Every part of the community needs to be a part of the effort to keep the virus under control.

Further, Zweig cites one of his sources arguing once again that there are "obvious socio-emotional and educational harms from making children," but he doesn't provide any significant evidence for this claim — certainly none that meets the standard of evidence he requires for claims about school mask mandates.

Meanwhile, many experts argue that the new forms of the virus mean we should be as vigilant as ever.

"The presence of the more transmissible [Delta] variant is a strong reason to emphasize basic strategies like universal mask usage in schools, as well as in other public indoor spaces," Guthrie told me. "Masks, while not always the most enjoyable experience, are not particularly inconvenient in most settings, and when combined with vaccination and other minimally disruptive measures, they are an important part of making classrooms safe."

A recent CDC study highlights the danger. It found that an unvaccinated California teacher brought the virus into her classroom while symptomatic, and despite masking rules, she read aloud to the students with her face uncovered. The kids were supposed to be masks, and the students reportedly said they complied with this rule at a high rate. Nevertheless, fifty percent of the students were infected, and some of them brought the virus home to their parents and siblings. A nearby classroom of 18 students also had six cases; one of the students had recently had a sleepover with two other students, and all three ended up with COVID. There were also four other student cases detected in other grades, each of whom had siblings in the class with the initial outbreak. No other infections were reported in those classrooms, potentially because the student masking prevented further spread.

Of course, the biggest lesson here is that teachers and anyone else who is eligible should be vaccinated, and people with symptoms of COVID should self-isolate. But it's also clear from this incident that the virus can spread quickly within schools, and it can make its way from there out into the wider community. The students in the classroom were reportedly masked, distanced, had open windows and doors for ventiliation, and had an air filter at the front of the room. Without these strategies, the outbreak might have been worse. And it's hard to be confident that any one of the strategies is making a huge difference on its own or is going to be a silver bullet — but we shouldn't be quick to abandon any strategy that we think has a good chance of providing substantial protection.

Indeed, all this reflects the lesson of one other study Zweig cites in Science Magazine, based on survey data, which he did admit is suggestive of a positive impact from mask mandates.

"We found that when seven or more mitigation measures were in place, the positive association between in-person schooling and COVID-19 outcomes disappeared," it said. "Among those reporting seven or more mitigation measures, >80% reported student and teacher mask mandates, restricted entry, extra space between desks, and no supply sharing, and >50% reported student cohorting, reduced class size, and daily symptom screening."

On the other hand, we shouldn't be doctrinaire about any of this. It's possible that on the whole, Delta will spread more easily among kids than previous variants, making masks even more important in these settings. But it's also possible that precisely because Delta spreads so easily, it doesn't actually do much to reduce the spread when students are mixing among themselves for many hours a day. We should pay close attention to what the emerging evidence shows and let it guide our actions moving forward. The Science Magazine study, for example, found that desk shields are unlikely to be helpful in schools and may instead increase the spread of the virus. They may be worth abandoning altogether.

But the fact is that public health officials are trying hard to evaluate the evidence. Contrary to Zweig's implications, there's little indication they are hiding their findings. They're making tricky judgments in an uncertain environment when we may not always be able to get the exact kind of evidence that we would most like to see. And for now, there's ample evidence to ask the kids going to school this fall to mask up when the risk of viral spread is significant, for themselves and for the good of the community.

New report exposes more details Jim Jordan held back about Trump on Jan. 6 — and ropes in Matt Gaetz too

A new report on Sunday in Politico's Playbook offered new details about former President Donald Trump's communications during the Jan. 6 attack, which may be of interest to the investigators on the House committee examining the day's events.

Trump's role in organizing, encouraging, and supporting the rioters' aims of preventing Congress from recognizing Joe Biden's win in the 2020 election is already well-known, but some are hoping to find additional evidence of his conduct that day that could potentially shed more light on his knowledge of the events and his culpability in any crimes or wrongdoing.

Republican Rep. Jim Jordan of Ohio, a close ally of the former president, has already admitted that he spoke to Trump on the day of the attack. But he has strained to avoid answering questions on the topic directly, suggesting that he has something to hide about the conversation. He has declined to divulge details about the content of the conversation or when it took place.

The new report from reporter Tara Palmeri revealed that, in fact, Jordan had multiple conversations with Trump during the day:

We know that DONALD TRUMP and Rep. JIM JORDAN spoke once on the day of the Capitol riot, but the Ohio Republican has said he doesn't remember when their conversation took place. We have some new details that could help clear up that timeframe — including confirmation of at least one more phone conversation between Jordan and the then-president during the siege.
After a group of lawmakers were evacuated from the House chamber to a safe room on Jan. 6, Jordan was joined by Rep. MATT GAETZ (R-Fla.) for a call during which they implored Trump to tell his supporters to stand down, per a source with knowledge of that call. The source declined to say how Trump responded to this request.
Jordan, when asked about whether Gaetz participated, said he'd "have to think about it," citing many conversations he had during the frenetic attack. He also said phone calls to Trump happened more than once on that deadly day.
"Look, I definitely spoke to the president that day. I don't recall — I know it was more than once, I just don't recall the times," Jordan told our Olivia Beavers. He later said that "I'm sure" one of the Trump-involved calls took place in the safe room "because we were in that room forever." (For safety reasons, we are not disclosing the specific room where members were evacuated to, but that is the room Jordan is referencing.) Jordan would not get into the specifics of what he discussed with the president, though he said that like everyone, he wanted the National Guard to get involved.

There are several important details here. First, it's clear that in addition to being cagey about speaking with Trump on Jan. 6, Jordan has been actively concealing further details about the talks. He didn't mention that one of them took place during attack itself while lawmakers were in hiding, and that there were other witnesses to the calls — even when he has said he's had trouble remembering the events. If he has trouble with his memory, he could consult other witnesses to the events. (As the piece is written, it's not clear if the word "he" in the last sentence refers to Jordan or Trump wanting to get the National Guard involved. But there's no credible indication that Trump had a role in deploying the Guard that day.)

But what's most important is that Jordan doesn't seem interested in recalling or sharing these details at all. It's difficult to believe they weren't memorable. That strongly suggests that the conversations would reflect quite poorly on Trump. If Trump said something exonerating during the conversations, such as indicating that he was shocked and horrified that his supporters were attacking the Capitol, and he was trying to get them out. Of course, none of his other actions that day suggest this was his attitude. And if Trump had said something exonerating, presumably Jordan would have brought it up during the impeachment hearings that charged him with inciting an insurrection.

Separate reports have indicated that Trump had a conversation with House Minority Leader Kevin McCarthy during the attack. Trump reportedly told McCarthy of the attackers: "Well, Kevin, I guess these people are more upset about the election than you are." McCarthy hasn't denied these reports but has declined to talk about them further.

The new report also reflects poorly on Gaetz, who through a spokesman refused to deny the claims. They suggest Gaetz was well aware that the rioters were acting out Trump's desires. But hours later, on the House floor, Gaetz would cite a later-debunked media report to suggest that "some of the people who breached the Capitol today were not Trump supporters. They were masquerading as Trump supporters and in fact, were members of the violent terrorist group antifa."

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'This lawsuit should never have been filed': Judge issues searing ruling against pro-Trump 'Kraken' lawyers

Federal Judge Linda Parker on Wednesday referred a group of pro-Trump attorneys, including Sidney Powell and Lin Wood, for potential suspension and disbarment for their misconduct in a lawsuit that sought to overturn Joe Biden's 2020 win in Michigan.

Michigan Governor Gretchen Whitmer, along with other defendants in the original lawsuit, has asked the judge to consider sanctions in after the pro-Trump lawyers had their claims of election fraud demolished.

In the new ruling, Parker issued a 110-page opinion condemning the team's "historic and profound abuse of the judicial process," finding that their behavior in the case warrants formal sanction by the courts. They will have to pay for Michigan and Detroit's legal costs and attend classes about the law relevant to the case, the judge ruled. And she will also be referring their cases to the authorities who issued the lawyers' licenses, which may take further punitive action against them.

Such harsh sanctions are rare in the legal world and highlight the extreme nature of the pro-Trump lawyers' conduct.

Parker was direct and unsparing in her condemnation of their actions.

"[T]he question before the Court is whether Plaintiffs' attorneys engaged in litigation practices that are abusive and, in turn, sanctionable. The short answer is yes," she wrote. "The attorneys who filed the instant lawsuit abused the well-established rules applicable to the litigation process by proffering claims not backed by law; proffering claims not backed by evidence (but instead, speculation, conjecture, and unwarranted suspicion); proffering factual allegations and claims without engaging in the required prefiling inquiry; and dragging out these proceedings even after they acknowledged that it was too late to attain the relief sought."

She continued:

And this case was never about fraud—it was about undermining the People's faith in our democracy and debasing the judicial process to do so.
While there are many arenas—including print, television, and social media—where protestations, conjecture, and speculation may be advanced, such expressions are neither permitted nor welcomed in a court of law. And while we as a country pride ourselves on the freedoms embodied within the First Amendment, it is well-established that an attorney's freedom of speech is circumscribed upon "entering" the courtroom.

The lawyers "scorned their oath, flouted the rules, and attempted to undermine the integrity of the judiciary along the way," she said.

Essentially, she argued that Powell, Wood, and the others used the case in Michigan to propagate the notion that Trump had been the true winner of the 2020 election, even though they had no reasonable case to bring. Their aim wasn't, she concluded, to make good faith arguments about the facts and the law in hope of being vindicated in a court of law. Instead, they were using the courts as a platform for propaganda without regard for the merits of their legal arguments. In short, it was a flagrant abuse of the system.

She even drew a connection between the lawyers' misconduct the Jan. 6 attack on the U.S. Capitol.

Much of the opinion details how the attorneys, such as Wood, have been blatantly dishonest with the court, and how their arguments were frivolous and illegitimate on numerous grounds. For example, they sought to have Whitmer barred from sending the results of Michigan's election to the Electoral College, even though she had already done so. They cited precedents for their arguments that had no relevance or made the opposite point they were trying to push. They made baseless claims that legal acts were against the law. At other points, they completely reversed themselves on crucial issues, such as key deadlines in the case, without explanation or justification.

"It is not lost upon the Court that the same claims and requested relief that Plaintiffs' attorneys presented here were disposed of, for many of the same reasons, in Michigan courts and by judges in several other 'battleground' jurisdictions where Plaintiffs' counsel sought to overturn the election results," Parker wrote. "The fact that no federal district court considering the issues at bar has found them worthy of moving forward supports the conclusion that Plaintiffs' claims are frivolous."

The extent of the blatant deception and arguments clearly made in bad faith can only lead to one conclusion.

Parker explained: "Once it appeared that their preferred political candidate's grasp on the presidency was slipping away, Plaintiffs' counsel helped mold the predetermined narrative about election fraud by lodging this federal lawsuit based on evidence that they actively refused to investigate or question with the requisite level of professional skepticism—and this refusal was to ensure that the evidence conformed with the predetermined narrative (a narrative that has had dangerous and violent consequences). Plaintiffs' counsel's politically motivated accusations, allegations, and gamesmanship may be protected by the First Amendment when posted on Twitter, shared on Telegram, or repeated on television. The nation's courts, however, are reserved for hearing legitimate causes of action."

In short, her conclusion was simple: "This lawsuit should never have been filed."

The Supreme Court launches a 'political torpedo' right at the Biden administration

On Tuesday night, the Supreme Court announced a consequential decision that amounted to an aggressive assertion of judicial authority against President Joe Biden.

In a four-sentence order, the justices left in place a lower court's injunction preventing the Biden administration from ending Donald Trump's "Remain in Mexico" policy, which left many asylum-seekers unable to enter the United States as their cases proceed through the long and arduous process. Essentially, the court is saying Biden has to continue to Trump's policy because he didn't end it in the right way. District Judge Matthew Kacsmaryk, who was appointed by Trump, had previously ordered Biden to continue the policy on the grounds that the decision to reverse it was "arbitrary and capricious." The Supreme Court has upheld that procedural move, which is now expected to stay in place as the litigation proceeds.

The initial ruling and the injunction were highly criticized when they came down, with many critics arguing that they represented extreme overreach by a conservative judge trying to undermine a politically opposed administration. Vox's Ian Millhiser said Judge Kacsmaryk didn't even understand the law he referenced:

Judge Matthew Kacsmaryk's opinion in Texas was wrong for many reasons, including that he completely misread federal immigration law. Kacsmaryk wrote that a 1996 federal law only gives "the government two options vis-à-vis aliens seeking asylum: (1) mandatory detention; or (2) return to a contiguous territory." Federal immigration law actually gives immigration officials several options, including granting "parole into the United States" to individual immigrants or releasing the immigrant on "bond of at least $1,500."
The most obvious stakes in this case are whether thousands of migrants will be forced to live in harrowing conditions — without "stable access to housing, income, and safety," according to Homeland Security Secretary Alejandro Mayorkas — because of an egregious misreading of federal law.
Remain in Mexico was implemented in early 2019, and effectively suspended in March 2020, because the government imposed stricter, temporary border restrictions in order to reduce the spread of Covid-19. Thus, Kacsmaryk's opinion rests on the improbable claim that a federal law enacted in 1996 requires the government to implement a policy that was only in effect for 14 months, and that wasn't implemented until nearly a quarter-century after the 1996 law took effect.

Now, the Supreme Court's conservatives have said that the judge's injunction will remain in place, fulfilling Milhiser's fears. All three liberal justices on the court dissented from the decision, though there was no written opinion of the court nor any dissents.

"The applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious," the order said. It cited the 2020 decision in the case of Department of Homeland Security v. Regents of the University of California, in which the court ruled that the Trump administration couldn't end the DACA program that protected undocumented immigrants who had come to the U.S. as children from deportation. Chief Justice John Roberts had been the lone conservative in the majority in that ruling.

"Absolute insanity. SCOTUS' conservative majority repeatedly cleared away lower court injunctions so that Trump could implement his immigration agenda. Now it lets a single district court judge dictate foreign policy for the Biden administration. This is beyond outrageous," said Slate's Mark Joseph stern.

Many critics echoed the point that the court was generally deferential to the Trump administration on immigration and foreign policy. It left in place Trump's ban on migrants from Muslim countries, despite clear evidence that it was inspired by racist animus.

In this case, the Justice Department argued that the Remain in Mexico policy involves the president's engagement with foreign countries, which the court has generally concluded should be largely protected from judicial interference. But now the right-wing majority has abandoned those concerns.

Stern noted that the court's demands of the executive branch may not even be possible: "I have no idea how the Biden administration can negotiate a revival of Remain in Mexico immediately. No one does. It may be impossible. Set aside the immense suffering that the conservative justices just inflicted on migrants. From a geopolitical standpoint, this is demented."

"This was the first test of whether a conservative Supreme Court majority would follow the same rules it did under Trump when it comes to immigration and the President—and they have failed the test. This is a political torpedo aimed directly at the Biden administration," said Aaron Reichlin-Melnick, a lawyer at the American Immigration Council. "The lower courts got dozens of facts wrong, wildly misstated the law, and ordered the Executive to torpedo delicate foreign relations—and the Supreme Court, which until Biden took office blocked nearly all immigration injunctions when requested by the DOJ, just let them do it."

He continued:

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GOP Rep. Mo Brooks issues statement against 'dictatorial Socialism' amid apparent right-wing bomb threat

As law enforcement was working to defuse a bomb threat outside the Library of Congress in Washington, D.C., on Thursday afternoon, Alabama Republican Rep. Mo Brooks shared an incendiary statement that seemed to express sympathy for the suspect.

U.S. Capitol Police identified the suspect as Floyd Roy Roseberry, a North Carolina man, when he was taken into custody around the time of Brooks' statement. The situation began when the man identified as Roseberry parked his truck on the sidewalk in front of the building and began issuing threats, claiming to have a bomb and explosive materials. Social media videos appeared to show Roseberry at the location with a potentially explosive device, making direct threats to President Joe Biden.

Facebook appeared to take down the page where the video was stream during the hours-long standoff with police, but multiple reports detailed the information it contained. It showed Roseberry as a Trump supporter demanding that Democrats "step down," according to the Daily Beast, and previous videos reportedly showed him protesting Biden's 2020 victory.

"The revolution's on. It's here, it's today," he said. He tried to claim that his actions had "nothing to do with politics," the Beast reported, adding that, "I don't care if Donald Trump ever become president again." But he also said at one point that he thinks Trump will be reinstated and said: " I think y'all Democrats need to step down." He hoped to get a pardon from Trump.

The report continued:

"When this bomb goes off there's gonna be four more right behind it, and then the patriots are gonna come, because you don't know where them four are sitting one of them might be sitting at your backdoor—better, better talk to me, Joe," he said at one point, referring to President Joe Biden, who he appeared to be speaking to throughout the rambling videos.
The man expressed anger about the chaos in Afghanistan and said he was "taking a stand" for the people there as well as "the American people."

Brooks, who is facing a lawsuit for his role in riling up the crowd on Jan. 6 that evolved into the riot at the U.S. Capitol, seemed in his statement to see the man as an ideological compatriot, even while expressing uncertainty about the situation and his tactics.

'Im aware of the Capitol bomb threat. I'm monitoring the situation. I am in Alabama. My Washington staff is accounted for and safe. I pray for the safety of Capitol Police and first responders on the scene in Washington. Sadly, violence and threats of violence targeting America's political institutions are far too common. Although this terrorist's motivation is not yet publicly known, and generally speaking, I understand citizenry anger directed at dictatorial Socialism and its threat to liberty, freedom and the very fabric of American society. The way to stop Socialism's march is for patriotic Americans to fight back in the 2022 and 2024 elections. I strongly encourage patriotic Americans to do exactly that more so than ever before. Bluntly stated, America's future is at risk. [emphasis added]

He offered no condemnation of the threat, and instead suggested that the man's grievances were justified. Even though he implied that electoral politics are a superior tactic for opposing "dictatorial Socialism" than the bomb threat, it's easy to see how a right-wing terrorist could see Brooks' statement as a virtual endorsement of their position.

The Supreme Court's shocking order from the shadows looks like a shot across the bow

On Thursday night, the Supreme Court issued a new injunction against a New York state law meant to shield tenants from eviction in the midst of the COVID-19 pandemic. But the order came on what's known as the shadow docket, which means the majority's decision is unsigned and typically offers little to no defense for the court's action.

Justice Stephen Breyer, joined by the other two liberals on the court, wrote a sharp dissent, arguing that the majority's decision doesn't meet the strict standards that should be applied. Though the case has no technical legal overlap with the arguments made against the federal moratorium on evictions, which expired briefly before the Biden administration reinstated a more circumscribed version of the policy, the conservative majority's extreme action against the New York law suggests the justices may have been influenced by their feelings about the prior case. It may be seen as a rejoinder to the Democrats' aggressive steps to protect tenants.

The new injunction only applies to a single section of the New York law. As part of legislators' efforts to respond to the COVID crisis, they enacted the COVID Emergency Eviction and Foreclosure Prevention Act. Under this law, if tenants claim they are experiencing financial hardship, landlords have little recourse to challenge this assessment or proceed with an eviction. The court believes this is unconstitutional.

According to the majority in the new order, "This scheme violates the Court's longstanding teaching that ordinarily 'no man can be a judge in his own case' consistent with the Due Process Clause."

The order also noted that a separate law, the Tenant Safe Harbor Act, nevertheless still offers tenants protection:

Among other things, TSHA instructs New York courts to entertain a COVIDrelated hardship defense in eviction proceedings, assessing a tenant's income prior to COVID, income during COVID, liquid assets, and ability to obtain government assistance. §2(2)(b). If the court finds the tenant "has suffered a financial hardship" during a statutorily-prescribed period, then it "shall [not] issue a warrant of eviction or judgment of possession."

So the court has blocked New York from enforcing the self-assessment provision of the COVID Emergency Eviction and Foreclosure Prevention Act.

Breyer argued in dissent that this decision was based on a serious mistake. He noted that the law being enjoined by the court is set to expire at the end of August, and issuing an injunction is an "extraordinary" act for the court to undertake.

"Under these circumstances, such drastic relief would only be appropriate if 'the legal rights at issue [we]re indisputably clear and, even then, sparingly and only in the most critical and exigent circumstances,'" he wrote. And he doesn't think the conditions rise to this level.

While the law in question may restrict landlords' due process by denying them a hearing, Breyer noted, this is only temporary. The restriction expires at the end of the month, and proceedings can continue at that point. Since it's plausible to interpret this as only a delay of the process, not a denial of due process, the court has no business issuing the injunction.

He also said the hardship suffered by landlords hasn't been shown to be significant enough to justify the court's intervention at this point, especially since New York state has provided various forms of support to landlords affected by the crisis. And, of course, the injunction itself might cause its own hardships by leading to more evictions. (Indeed, it's hard to see why the petitioners would seek the injunction if they didn't think it would enable landlords to evict more people.)

"It is impossible—especially on the abbreviated schedule of an application for an emergency injunction—to know whether more hardship will result from leaving CEEFPA in place or from barring its enforcement," he said.

Finally, he noted that in conditions like a pandemic, the court should pay deference to legislatures, which are "responsible for responding to a grave and unpredictable public health crisis."

On Twitter, legal scholar Steve Vladeck noted that the court's recent use of emergency injunctions like this is far outside the norm.

"In the first 15 Terms of the Roberts Court, #SCOTUS issued a grand total of 4 emergency injunctions pending appeal (in part because the standard for granting one is so high)," he wrote. "This is now the *7th* injunction the Court has issued since Justice Barrett's confirmation last October."

So what explains this extreme decision on the part of the majority? As I suggested above, it may come down to a similar though technically unrelated case: the federal eviction moratorium.

The federal eviction moratorium was enacted under the Trump administration using the broad authority of the Centers for Disease Control and Prevention. When the issue finally came before the court in June, a five-justice majority of the court voted in favor of leaving the moratorium in place. Justice Brett Kavanaugh, writing a short concurrence as part of the majority, said he believed the moratorium was illegal but that it should be left in place until the end of July — when the CDC had said it would finally terminate. That meant, essentially, that there were at least five votes for the proposition that the CDC had exceeded its authority, but Kavanaugh restrained the court for prudential and accommodative reasons.

But as the end of July approached, the virus began to spread more rapidly, and the Biden administration became increasingly concerned about the expiring moratorium. With just days left, the White House announced the president's desire to see it extended by Congress. Congress, however, quickly made clear it didn't have the time or votes to act on the issue. Shortly after the expiration, the CDC announced a new, somewhat more limited version of the moratorium — though Biden admitted he had doubts it would hold up in court.

Many commentators feared that extending the moratorium past July would risk provoking the court's ire. Since Kavanaugh had apparently saved the moratorium based on the CDC's explicit promise that it would be short-lived, any extension of it could be seen as a slap in the face, a betrayal of the court's extension of good faith. Though the new federal moratorium is a modified version, and may therefore be defended on novel grounds, the conservative justices — and Kavanaugh in particular — may feel duped.

So does these circumstances explain the court's recent action against the New York law? Undoubtedly, the justices will never admit as much, perhaps not even to themselves. But as Breyer persuasively argued, the majority's decision is extreme and flimsy (not to mention undefended). And the court's reserve in the face of the federal eviction moratorium appears to have abruptly vanished. Perhaps a psychological explanation is warranted.

Based on the Biden administration's actions, the court's conservatives may have concluded that Democrats in the New York legislature couldn't be trusted to actually let the eviction restrictions expire. Breyer noted that the issue could come back to the court if an extension passed, potentially signalling that he believes this concern was on his colleagues' minds. But perhaps the conservatives just felt the need to put their feet down after the CDC case and stand up for landlords' rights.

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