Nel's New Day

July 9, 2020

DDT’s Royal Crown in Jeopardy, Final SCOTUS Decisions

A decade ago, the Supreme Court and the electorate moved the United States toward a low point in its democracy: the Supreme Court ruled unlimited donations for political candidates in Citizens United, and Tea Party voters elected corrupt politicians for gerrymandering. The U.S. expanded oligarchical control and picked Dictator Donald Trump (DDT), interested only in personal wealth and self-aggrandizement, who signed hundreds of executive orders benefiting only himself, not the country. For two years, DDT controlled all three branches of government until Republicans lost faith and put Democrats in control of the house in 2018. 

Supreme Court decisions in the past month have not all appeared to be the highly conservative ones DDT expected when he nominated Neil Gorsuch and Brett Kavanaugh to the high court. Until this week, Chief Justice John Roberts leaned away from the four conservative justices in an anti-abortion case although he went with them in allowing abuses of the environment, financial oversight, and independent agencies. A majority of the justices ruled states could not discriminate against LGBTQ employees, protected DACA recipients, and let stand victories for gun safety and sanctuary laws.  

Two rulings today moved democracy back on its path. Even Samuel Alito and Clarence Thomas, who voted against the specific subpoenas for DDT, agreed DDT is not “king of the United States.” DDT lost his claim of complete immunity from the law. One ruling concerns congressional ability to obtain a president’s financial records from third parties, and the other determines whether a president is immune from state criminal investigation. A New York prosecutor can subpoena DDT’s private and business financial records; the second ruling sent the question back to the lower court to match the restrictions placed onto the subpoenas. The wording of the decision means the information will most likely not appear before the November election, but the premise of the U.S. not being a kingdom with a monarch is vital for democracy.

In the majority opinion, Roberts wrote:

“In our judicial system, ‘the public has a right to every man’s evidence.’ Since the earliest days of the Republic, ‘every man’ has included the President of the United States.”

Furious, DDT lied in a tweet about “broad deference” in the past “BUT NOT ME.” In another tweet, he yelled about “PROSECUTORIAL MISCONDUCT.” DDT began railing against the judiciary even before the decisions were released to the public. “Not fair,” DDT cried, about the possibility of releasing his tax returns and financial records. Yet he cannot block subpoenas if his action impedes Congress from carrying out its responsibilities; a lower court must “assess the burdens imposed on the President by a subpoena.” DDT cannot protest that the subpoenas will take too much of his time, because the subpoena is for private companies and not to him.

The permission for New York to obtain records also removes any special, heightened standard of proof. Roberts used the ruling that Thomas Jefferson was not immune from a subpoena for records in a trial with Aaron Burr. Another citation came from U.S. v. Nixon: “The President’s ‘generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.’”

The opinion placed these restrictions on subpoenas regarding DDT:

  • Subpoenas cannot be for information searches if other sources are available.
  • Subpoenas cannot be too broad.
  • Lawmakers submitting subpoenas must explain how the information advances potential legislation.
  • Confidentiality does not apply if “executive deliberations” don’t exist. court must “assess the burdens imposed on the President by a subpoena.”

In another win for the people of the United States, the Supreme Court ruled a large portion of eastern Oklahoma, including much of Tulsa, is Indian reservation where state authorities cannot prosecute Native Americans. In the 5-to-4 decision, Gorsuch provided the swing vote. The case, which SCOTUS postponed from last year with a different plaintiff, concerns the Muscogee (Creek) Nation. Members of five Indian nations were forced from Georgia, Florida, and Alabama in the 1830s. To take the land for White expansion, the U.S. Army forced-marched the Native Americans on the “Trail of Tears” to the Indian Territory (Oklahoma) where the survivors were promised land. Over 3,000 Indians died on the journey.

In the late 19th century, Congress took courts, governments, and laws from the Creek Nation and forced them to change tribal lands into privately-owned allotments for the tribe’s members before selling surplus land to white settlers. Yet Congress never specifically abolished the reservation’s treaty promising the Oklahoma land in perpetuity. In the majority opinion, Neil Gorsuch wrote:

“If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law.”

The Oklahoma decision affects almost half of the state’s population. According to the majority ruling, only Congress, not the courts, can modify treaty agreements and change reservation boundaries. Federal officers, not state authorities, will be in charge of prosecuting tribal members for major crimes on the reservation, but the question remains regarding the authority of state and city governments in regulations such as taxation and zoning. The Oklahoma AG and leaders of five tribal groups—Creek, Cherokee, Chickasaw, Choctaw, and Seminole nations—are negotiating an agreement for “shared jurisdiction” to submit to Congress. The Native American sovereign nations and the state must also deal with thousands Indian prosecutions for over a century. 

In two other decisions, the Supreme Court reinforced DDT’s Christian rule. DDT’s expansion of birth control exemptions for employers who claim religious and moral reasons in opposition to the Affordable Care Act’s mandate that insurance plans and employers except for religious nonprofits must cover contraception without cost sharing. Justices Elena Kagan and Stephen Breyer voted with the conservative majority only because the Executive Branch has the power to make this mandate. The nation’s support for universal health care has been growing, especially since the COVID-19 pandemic, and this ruling may enlist more support. Ironically, the Supreme Court opposes abortion while opposing access to abortion prevention. A new president in January could rescind the DHS mandate about employers’ moral perception ruling the lives of women, perhaps guiding some women in their voting choice.  

In another ruling today, religious schools can fire teachers or anyone else supposedly acting as “ministers” to the students. One of the plaintiffs was fired because of her age, the other because she had breast cancer. The two cases leave over 126,000 women without free contraception plus with far more at risk with SCOTUS giving DDT permission for exemptions and tens of thousands of people prevented from suing for job discrimination. An earlier SCOTUS decision forces taxpayers to pay for religious schools, meaning taxpayers must pay for discrimination in education. One of the plaintiffs was demoted because she was 63, the other because she had breast cancer. 

The last decision this week referred to “faithless electors,” voting for their own preference in the Electoral College. That practice is now illegal after the SCOTUS ruling, stating representatives must vote according to their state’s majority vote for president. In the majority opinion, Kagan left wiggle room for 18 states not requiring conformity between the popular vote and the agent in the Electoral College as well as the current initiative passed in 15 states and pending in another ten which pledges electors to the winner of the national popular vote instead of their statewide totals. 

David Farris is making suppositions about Roberts preparing for a Biden presidency. The last two nominations have demonstrated the ugliness of Senate Republicans—first the refusal to consider President Obama’s nominee, Merrick Garland, for almost a year followed by the GOP manipulation of Brett Kavanaugh in 2018. The corruption surrounding the GOP control of the Supreme Court has led to a suggestion that Democrats would enlarge the court if they control the presidency and Senate. Justification might be the appointment of four justices by presidents who lost the popular vote.

Roberts wants to be known for a legitimate court, a difficulty if he needs to vote conservative on an 11-person group of justices. His narrow dance with the Louisiana abortion case kept him from fury about an out-of-control institution from the left although it left him with an unhappy right wing. The end of the 2020 decisions leaves enough liberal victories to quiet those who were highly disappointed with Anthony Kennedy’s disastrous decisions before his 2018 departure. Walking a fine line, Roberts seemed to vote liberal while not really making progressive decisions. Instead, several of the rulings such as DACA and DDT’s financial records merely postponed cases by returning them to lower courts. The abortion ruling invited a conservative assault on women’s rights. Most of the other cases clearly gave control to big business and reinforced voter suppression.

If DDT wins, Roberts can put conservatism into cement; if Biden wins Roberts will continue the veneer of moderation while pushing long-term conservatism, including the overturn of ACA. He’ll copy the last 20 years with one step forward, three steps behind.

COVID-19 in the world on July 9: 12,390,734 cases and 557,416 deaths. And in the United States: 3,219,999 cases and 135,822 deaths. New U.S. cases in the past 24 hours: 61,067.

June 19, 2020

DDT Runs Afoul of Executive Orders, COVID-19

For eight years, the Republicans hated presidential executive orders–until they elected Dictator Donald Trump (DDT). Their opposition to these orders stay in the GOP platform because Republicans decided to retread the 2016 platform citing their hatred of President Obama. DDT loves signing orders because he gets to look important.

Eight years, ago, President Obama signed an order for Deferred Action for Childhood Arrivals (DACA), the program allowing undocumented young adults who were brought to the United States as children to apply for protection from deportation. In 2017, DDT signed his own order ending the program, telling almost 800,000 young people they should immediately be deported. After lawsuits against the order wandered the courts for almost three years, the Supreme Court ruled, 5-4 with Chief Justice John Roberts the swing vote, against DDT’s order, calling it “arbitrary and capricious.” The decision didn’t state DDT was wrong, just that he didn’t provide sufficient justification.

The executive order was sent back to the Department of Homeland Security, and, after a day of tantrums, DDT declared the high court wanted him to rewrite the order for reissuing.  

Damon Linker wrote about the decision:

“Presidents and their appointees can’t simply do anything they want, even when the aim falls within their purview. They need to abide by the rule of law in taking action…. It’s what separates a nation governed by law from one ruled by the whims of a malicious despot and his obsequious enablers.”

BuzzFeed’s Zoe Tillman wrote:

“This outcome is similar to what happened in the census citizenship question case — in both cases, Roberts wrote for the majority of the court that the Trump admin could in theory do what they were trying to do, but that officials had gone about it in an unlawful way.”

Law professor Steve Vladeck commented about the ruling:

“It’s not that Chief Justice Roberts is a closet progressive. He’s not. It’s that the Trump administration is really bad at administrative law.”

Steve Benen continued with the theme of his new book, The Imposters:

“Many of the White House’s recent failures are the result of its indifference to the substance of governing.

“Earlier this week, North Korea literally blew up a diplomatic office, in part because Trump launched a risky gambit for public-relations purposes, failed to do his due diligence, never bothered to formulate a specific plan or policy, and sat helpless as his half-hearted effort failed.

“Soon after, the political world was confronted with revelations from John Bolton’s new book, in which the former White House national security advisor describes the president as, among other things, a man who doesn’t care about governing, doesn’t know how government works, and prioritizes politics over policy.

“Meanwhile, Trump’s plan to hold a risky campaign rally in Tulsa is becoming increasingly controversial in ways his political operation may not have anticipated. Those who take governing seriously care about data, evidence, and expertise — and in this case, the coronavirus data out of Oklahoma is awful and getting worse; the evidence points to an enclosed venue where the virus can spread easily and quickly, and the experts are telling anyone who’ll listen that this is a bad idea.

“But because Trump and his allies are no longer members of a governing party, and have instead become leaders of a post-policy party, these developments are sadly predictable.”

Being able to legally work and attend school in the U.S. has made DACA recipients productive. About five percent of them contribute to healthcare work during the danger of COVID-19. Over 90 percent of DACA recipients are employed, and 45 percent of them attend school. In January 2018, 87 percent of people said DACA recipients should be allowed to stay if they work or attend school.

DDT believes Roberts wants another executive order, but a new attempt on his part could address whether the original DACA order was illegal or lacking in “sound policy.” This issue was not addressed in this week’s ruling and could last another three years or more in the courts. It could also be problematic in an election year.

Since the DACA executive order, DDT has learned to write ones totally without substance while making exaggerated statements about their effects. For example, he said he was keeping meat plants open during the pandemic, but the order told Agriculture Secretary Sonny Perdue to work with OSHA to make decisions.

DDT used the same approach when he signed his “law enforcement reform” order earlier this week. He said his order banned chokeholds, except “when an officer’s life is at risk.” The order actually states chokeholds are permitted wherever law allows them.  

DDT described his order as “pretty comprehensive.” These are his “orders”:

Police brutality has occurred.

Congress will pass policing-related legislation. (Congress started working on reform before he wrote the order.)

DOJ funding will pay police departments to provide federally-approved training programs. (An example of the huge loopholes is money only for departments prohibiting the use of chokeholds “except in those situations where the use of deadly force is allowed by law.”)

The HHS Secretary should encourage police departments to improve law enforcement handling of mental health crises, addiction, and homelessness. (No explanation how.)

A national database should track police misconduct.

No policies, no orders, but DDT can use his statement to veto anything from Congress with a lie that he’s already created “reform.”  He’s already demanded law enforcement officers keep their immunity and described his appreciation for police brutality. People want “law and order,” according to DDT, although “some of them don’t even know that’s what they want, but that’s what they want.”

When Barack Obama was president, DDT stated President Obama “signs executive orders because he can’t get anything done. I’ll get everybody together.” Then he moved on to complaining about the few times President Obama golfed. With his own ability to sign these orders, however, DDT holds up his signature, pointing to it like a toddler pointing out his toilet-training achievement.

DDT’s favorite part of signing orders comes from the speech he gives afterwards. In this case, he extolled the virtues of police officers, returning to the idea that the massive police brutality, even more obvious during the past three weeks, is from a few bad apples. He called school choice, which means using taxpayer funds to support religious groups, as the “civil rights statement of the year, of the decade, and probably beyond.” (Not voting rights of equality in justice—just taxpayers paying for religious instruction.)

Although DDT claimed to have met with families of nine victims of police or racially motivated killings, none was in his audience for his signing. His photo-op showed himself surrounded by male cops, only one of them black. “We have to break old patterns of failure,” DDT said. 

Meanwhile, DDT is pushing VP Mike Pence, the evangelical, to tell governors to lie to their people so they will think COVID-19 has disappeared after a backlash to his rally tomorrow. With spikes in the virus throughout over half the states, Pence told governors to tell people the virus has disappeared. DDT claims the only reason the number of cases could go up would be more testing. Dana Milbank compared this reasoning to people believing they aren’t gaining weight if they don’t weigh themselves. DDT and Pence are willing to kill hundreds of thousands to win an election.

Predictions show the U.S. COVID-19 death toll to over 200,000 by early October, up from 170,000 deaths, because of states lifting lockdowns and ignoring safety measures to prevent the virus. Florida insisted on opening the state and keeping it open, but yesterday, it was one of four states—Arizona, California, Florida, and Texas—with almost half the 33,000+ new cases for the day although they have about 20 percent of the nation’s population. Pence also lied to reporters about the new virus spike in Oklahoma, its highest one-day total since the pandemic began in the state on March 6, by calling it a “flattening” curve.

Pence also wrote a Wall Street Journal op-ed about “overblown” reports of a “second wave” while DDT is “winning the fight.” A factcheck about Pence’s piece, however asserted he “overstated the amount of coronavirus-related medical equipment distributed by a Trump administration program on multiple occasions, according to public data from the Federal Emergency Management Agency.” The amount of masks, shields, and other PPE was far less than Pence stated, especially the 1.5 million N95 masks instead of the 143 million Pence declared.

As both DDT and Pence call for a “celebration” to the current end of COVID-19, people need to remember their comments earlier this year before over 120,000 people died of the virus in the United States.

June 29, 2019

Supreme Court Moves to Eliminate Democracy

The debates took up much of the media air last week, but the Supreme Court decisions are what will permanently change democracy in the United States. The two biggest one came out Thursday, the last day of the session so that the conservatives could quickly get out of town. Chief Justice John Roberts now has a one-two-three punch against voting with his three major decisions to suppress the vote. In the first, Citizens United, Roberts gave donors the right to give unlimited amounts of “dark money” to political candidates. His elimination of the almost 50-year-old Voters Rights Act made sure that states could keep minorities and the poor from voting in the states that were usually inclined to discriminate against these populations.

This Thursday, Roberts guaranteed that politicians can select their own voters instead of the constitutional position that voters should pick their candidates, and courts can’t stop gerrymandering even if it promises partisanship. Roberts’ swing vote in Rucho v. Common Cause blocking federal courts from preventing the most aggressive partisan gerrymandered districts that computers can create. In a circular pattern, Republicans pick districts so that the districts will pick Republicans.

The conservative majority used the excuse that some acts can violate he Constitution but are beyond the judiciary to determine any violations. Roberts’ reasoning that courts cannot require states to draw legislative maps somewhat proportional adversely twisted the definition of “proportional representation” for voting, meaning legislative representation should track electoral results. He allows states where Democrats win 54 percent of the vote to give Republicans 65 percent of the legislative seats, and he skipped the part of the U.S. Constitution that prohibits states from denying anyone “equal protection of the laws.” The First Amendment also prohibits viewpoint discrimination—aka gerrymandering. For elections, Roberts views the amendment narrowly while he uses it for unlimited expenditures to influence elections.

The swing vote in Department of Commerce v. New York, Roberts voted against the conservative four justices. The racist policy by Dictator Donald Trump (DDT) to rig the census by requiring all people in the U.S. to answer a question of their citizenship provided more voter suppression by shrinking districts with Latinx, designed to allocate congressional seats in a way that “would clearly be a disadvantage to the Democrats” and “advantageous to Republicans and Non-Hispanic Whites.” The U.S. census is ordered for all “people” in the nation, not citizens or legal residents.

Experts testified that the citizenship question “could seriously jeopardize the accuracy of the census,” because “people who are undocumented immigrants may either avoid the census altogether or deliberately misreport themselves as legal residents.” Meanwhile, legal residents “may misunderstand or mistrust the census and fail or refuse to respond.” The Census Bureau “calculated in January 2018 that adding a citizenship question to the 2020 census was likely to lead to a 5.1% differential decrease in self-response rates among noncitizen households.” The purpose of the census covers a lot of territory from determining the number of legislators, both state and federal, and the amount of federal funding for different areas.

Commerce Secretary Wilbur Ross lied about the question’s inception and reason and falsely claimed that it was necessary to help the DOJ enforce the remaining portion of the Voters Rights Act. Evidence, however, “showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process.” This evidence suggests that “the Secretary had made up his mind to reinstate a citizenship question ‘well before’ receiving DOJ’s request, and did so for reasons unknown but unrelated to the VRA.”

Although Roberts voted that the question had to go back to state courts for another look, he denied that it should be removed because Ross didn’t follow a federal law requiring a three-year notice to Congress about “the subjects proposed to be included, and the types of information to be compiled.” The ruling did not state that the decision was “substantively invalid” but that “agencies must pursue their goals reasonably,” and “reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action.” Remanded back to the New York district court, the Supreme Court decision overturned a ruling that the question is “arbitrary and capricious” under the Administrative Procedures Act and upheld the constitutionality of a citizenship question under the Enumeration Clause of the Constitution. The ruling determined the question legal if the Commerce Department can come up with a good enough reason.

DDT is so furious about the citizenship question decision that he wants to (unconstitutionally) delay the census until he gets his way. Supposedly, census forms printing must be started next week to complete them in time, but Commerce Department could wait until October 31 to start printing the questionnaire if it can get “extraordinary resources” allocated by Congress.

In a filing last Monday, Maryland District Court Judge George Hazel stated the evidence “potentially connects the dots between a discriminatory purpose—diluting Hispanics’ political power—and Secretary Ross’s decision” to add a citizenship question with the argument that DDT violated the Constitution’s equal protection clause. Although the Supreme Court decision may stop the Maryland lawsuit, it can reappear if Ross returns with new reasons.

DDT’s court continues its pattern: conservative decisions are sweeping ones that change laws; liberal ones are narrow with little relief except in one specific situation.

In the census decision, Justice Clarence Thomas, on the court thanks to Joe Biden’s refusal to listen to women’s statements about Thomas’ sexual harassment, called Judge Jesse Furman a conspiracy theorist for challenging Ross’ lies. Earlier, Thomas had raged about sending a case back to Mississippi for a sixth time in Flowers v. Mississippi because, according to Thomas, prosecutors can strike minorities from a jury on the basis of their race. Neil Gorsuch joined Thomas in his position. Last February, Thomas announced he wants to overturn New York Times v. Sullivan, the landmark 1964 ruling sharply restricting public figures, including government officials, to sue for defamation and get rid of Gideon v. Wainwright, requiring states to provide public defenders for indigent defendants. Gorsuch agrees with that position too. To Thomas, abortion rights equals eugenics.

After another Supreme Court ruling last week, police no longer need a warrant to draw blood from an unconscious person suspected of drinking while driving. Gone is the requirement of a person for an invasive procedure that overturns the 2013 Supreme Court ruling a violation of the Constitution for a nonconsensual blood draw without a warrant in a DUI case.

The 40-foot Christian cross will remain on a traffic median near Washington, D.C. according to six Christian and one Jewish Supreme Court justices. Catholic Justice Samuel Alito wrote that Christian crosses have “secular meaning.” Justice Ruth Bader Ginsberg, dissenting with Justice Sonia Sotomayor, read her disagreement from the bench. [I’m guessing that the Supreme Court would not consider a “secular” Jewish star of David or Islam crescent to replace the “secular” cross.]

The Supreme Court refused to hear a lower court ruling against Alabama’s 2015 abortion law banning “dilation and evacuation,” a common procedure during the second trimester. The high court’s inaction left the law struck down, but it won’t avoid abortion cases forever. Earlier this year, it left in place the requirement for disposing of aborted fetal remains through burial or cremation because of the “sanctity of life.” Nothing about miscarriages. The high court also refused to hear a case from two Kansas men convicted of violating federal law regulating silencers.

In Gamble v. United States, the Supreme Court on Monday also reaffirmed a 170-year-old exception to the Constitution’s double-jeopardy clause, leaving an opportunity for states to prosecute DDT and his campaign officials for issues already prosecuted federally.

In one sane move, Roberts was the swing vote in Kisor v. Wilkie to not overturn a 75-year series of SCOTUS decisions permitting agencies’ reasonable interpretations of their own regulations.

The Supreme Court has started its docket for the upcoming year with a case determining what happens to 700,000 DREAMERS living in the United States because of DACA. Three appeals courts and a district judge have ruled that DDT had no rationale for his attempt to close a program that protects from deportation young undocumented immigrants who were brought to the U.S. as children. Other cases include one from Bridget Kelly and Vill Baroni, convicted of participating in gridlock near the George Washington Bridge and a Montana ruling invalidating a state program offering tax credits for funding scholarships at private schools, including religious schools.

In a 5-4 decision exempting a public access television channel from constitutional requirements, Brett Kavanaugh wrote:

“It is sometimes said that the bigger the government, the smaller the individual.”

Although Kavanaugh didn’t cite his source, the false statement was tracked to the Ayn Randian Atlas Society, refuting Roberts’ common claim that the Supreme Court is not political. Senate Majority Leader Mitch McConnell (R-KY) clearly stated that blockades of Supreme Court nominees are only for Democratic presidents. He smirked while he told an audience that he would “fill it” if a vacancy on the high court appears next year. No longer should “the American people have a voice in the selection of their next Supreme Court justice.”

March 22, 2018

Could ‘NIFLA v. Becerra’ Change Free Speech, Abortion Law?

The past week has been again filled with chaos—firings of the national security council, resignation and appointments of the legal team for Dictator Donald Trump (DDT), continued lawsuits against the federal government, additional information about DDT’s sexual misconduct as more women join Stormy Daniels, and concerns regarding the retention of special investigator Robert Mueller. No wonder that a case before the Supreme Court last Tuesday got little attention from the media. In normal times that case would have been front and center on television because it’s one of seven cases thus far this judicial year that addresses free speech—two of them major lawsuits.

Last December the religious legal group Alliance Defending Freedom (ADF) and the federal government argued before SCOTUS that a cake in Colorado is free speech because the baker is an “artist.” A ruling in his favor and opposing service for a gay couple would permit rampant discrimination across the United States, not only against LGBTQ people but also anyone else who offended the religious and moral sensibilities of everyone in all businesses—retail, health care, food services—everyone.

Last Tuesday’s case, NIFLA v. Becerra, the federal government joined ADF to oppose a California law that requires community clinics to post notices about their licensing (or lack thereof), the availability of a medical provider, and patients’ access to abortion and other family planning services in the state. The 2015 California Reproductive FACT Act mandates that licensed community clinics whose “primary purpose is providing family planning or pregnancy-related services” disclose to all patients that California offers “free or low-cost” contraception, prenatal care, and abortion. These clinics must provide a telephone number that patients can call for more information about state-funded services. Clinics focusing on pregnancy or family planning but are unlicensed must clearly provide a warning in the clinic and in advertising that they have “no medical provider.”

Many of California residents are unaware of expanded funding for prenatal and family planning services from the Affordable Care Act, and many clinics, especially the anti-abortion crisis pregnancy clinics (CPCs) pressure women to not have an abortion. Many CPCs hide religious affiliations and claim that they provide more services than available in the clinics. Owners and employees of the CPCs use “free speech” to object to the law by arguing that it makes them “complicit in facilitating an act they believe hurts women and destroys innocent lives.” They maintain that the FACT Act is “gerrymandered” to “commandeer” their expression, “manipulat[ing] the marketplace of ideas” to favor abortion in violation of the First Amendment.

The argument from Michael Farris, a member of ADF, is that not all doctors are required to post the information, only community clinics with pregnancy-related services. He wants to move the law to heightened judicial scrutiny, which raises the legal bar for California to keep the law. Justice Samuel Alito bought the argument that the “crazy exemptions” of the law creates “a very strange pattern.” California Solicitor General Joshua Klein explained that the law targets community clinics where millions of low-income Californians get health care and exempts private physicians because they usually don’t have poorer women patients.

Jeffrey Wall, the deputy U.S. solicitor general who joined Farris on behalf of the federal government, tried to persuade the justices that informing pregnant women about alternatives to abortion are necessary only when medical procedures are provided and that unlicensed clinics don’t provide medical procedures. Justice Sonia Sotomayor pointed out that CPCs sometimes provide medical procedures such as ultrasounds and pregnancy tests and give pregnancy counseling, much like doctors’ medical advice in discussing abortion procedures.

The case also addresses whether clinic users should know which clinics are licensed and provide a full range of subsidized medical options. Sotomayor described Fallbrook Pregnancy Resource Center’s website:

“There is a woman on the homepage with a uniform that looks like a nurse’s uniform in front of an ultrasound machine. It shows an exam room. It talks about ‘abortion,’ ‘your options,’ and ‘our services,’ advertising ‘free ultrasounds.’ But in fact, the Fallbrook Pregnancy Resource Center is an unlicensed CPC. If a reasonable person could look at this website and think that you’re giving medical advice, would the unlicensed notice be wrong?”

Sotomayor compared NIFLA to Planned Parenthood v. Casey that allows states to pass “informed consent” laws forcing abortion providers to deliver a state-approved anti-abortion canned statement before the procedure even if the information is false. Both situations mandate information for women, one on alternatives to the clinics and the other about termination of pregnancies. Justice Stephen Breyer dubbed this issue “what is sauce for the goose is sauce for the gander.” Denying California the right to require postings at all community clinics regarding availability of free and/or inexpensive family planning services could give free speech to only one side of the abortion argument.

The case was appealed to the Supreme Court after a federal district court and the 9th U.S. Circuit Court denied an injunction in favor of CPCs. Both lower courts maintained that California’s law was constitutional in the same way that Pennsylvania could require doctors to tell abortion patients about the “nature” of the procedure and the “probable gestation age” of the fetus.

Observers watching the negative comments from some justices believe that at least part of the FACT Act will be struck down; the question is how much and on what grounds. Mandatory disclaimers in multiple languages on advertising for unlicensed CPCs may be unconstitutional. Requiring clinics to tell patient about a lack of license seems legal. The middle ground is the crux: whether states can force CPCs to tell patients about services elsewhere.

A serious problem in this case comes from dangers in CPCs that promise medical assistance but have the sole purpose of forcing a woman to carry a fetus to full term. Over 2,700 CPCs throughout the nation lure pregnant women into their facilities and then terrify them with lies about their future if they have abortions.

States like Texas are using public funds from bona fide community clinics to unlicensed CPCs exempt from regulations or credentialing because they provide only non-medical services such as self-administered pregnancy tests or parenting classes. One-fourth of Texas’ 200 CPCs are funded by federal taxpayer money through the $38 million operating budget of “Alternatives to Abortion” for low-income women. With no government oversight, the “Texas Pregnancy Care Network” subcontracts with 51 CPCs with most money going to “counseling,” a term with no definition. Another $739,000 went to advertising. When asked if the CPCs were medically licensed, a state spokesperson said that they are not medical clinics.

People who go to CPCs don’t know they won’t get any medical care. Austin (TX) tried to pass an ordinance requiring that clinics state whether they have doctors. A federal judge struck down the ordinance with the argument that it violated CPCs’ due process. Texas law does require doctors to lie to women about medical risks of abortions, a procedure with less risks than pulling wisdom teeth or taking out tonsils.

In his 12 years as Chief Justice, John Roberts has greatly expanded the definition of free speech for corporations. To him and a majority of the justices in Citizens United, all money is free speech meaning unlimited anonymous corporate donations to political candidates, a ruling later expanded in McCutcheon v. FEC. These cases, and others such as Hobby Lobby allowing corporations to deny birth control to employees using faulty scientific information, shows that Roberts’ defense of the First Amendment protects only corporations. He uses the same argument to give corporations benefits in cases involving drug advertising and trademark regulations as well as removal of unions’ rights. A recent case argued whether state laws can permit mandatory fees for workers to pay for the support services that unions are legally to provide all employees.

The ruling in NIFLA, most likely in June, will either leave the California law in place or give pro-choice activists the grounds to argue against laws in other states that require doctors to give pregnant patients the false information that abortions cause breast cancer and infertility. The NIFLA lawyers argue that posting information “unconstitutionally compels [the clinics] to speak messages that they have not chosen, with which they do not agree, and that distract, and detract from, the messages they have chosen to speak.” A ruling in their favor might take the shackles off abortion providers and other doctors so they can deliver “the messages they have chosen to speak.” Breyer said that the court’s most important job is “to keep sauces the same.”

April 2, 2014

SCOTUS Puts ‘Citizens United’ on Steroids

scalia_for_saleAlthough the Hobby Lobby decision could be much more far-reaching than Citizens United, Windsor, and overturning the voting act, the case of McCutcheon v. FEC matches Hobby Lobby in impact. Through declaiming “free speech, the U.S. Supreme Court again put democracy up for sale. Its decision struck down the $123,000 two-year limit to campaign contribution limits, $48,600 to all federal candidates and $74,600 to all political committees. The aggregate limits that stopped money laundering schemes in which donors and political parties could evade the cap on donations to individual candidates has been erased.

Now people can donate the maximum per-candidate and per-party to as many sources as they want. One person can now donate $3.6 million directly to candidates and parties in a single election cycle and much more to “independent” groups like Super PACs because of Citizens United. Donated money can legally be redistributed to the races where it is likely to have the most impact.

Some of Citizens United affects:

  • The 32 top Super PAC donors who gave $9.9 million each matched the $313 million raised from small donors for both Barack Obama and Mitt Romney of under $200 from 3.7 million people.
  • Almost 60 percent of Super PAC funding came from 159 donors, and more than 93 percent of the Super PAC money came in contributions of at least $10,000 from only 3,318 people—0.0011 percent of people in the United States.
  • Shel Adelson’s $91.8 million donation is equivalent to the entire net worth of 322,000 average-earning U.S. families.

McCutcheon is worse.

The election cycle limits of $5,200 per candidate and $32,400 per party committee stand, but there is no longer any top limit. Wealthy donors no longer needs to pick and choose among campaigns: they can just fling money everywhere. Sen. John McCain (R-AZ) targeted the problem: “I predict again, there will be major scandals in campaign finance contributions that will cause reform. There will be scandal. There’s too much money washing around.”

Reince Priebus, RNC chair, is cheering. House Speaker John Boehner (R-OH) praised the Supreme Court. Justice Clarence Thomas wrote that he wanted to erase all contribution limits.

The man who won big with the SCOTUS decision is Shaun McCutcheon, owner of Coalmont Electrical Development which makes industrial electrical equipment for coal mines. Fracking, green energy, and believers in the dangers of climate change are hurting his business. Despite the fact that 98 percent of climate scientists understand the dangers of fossil fuels in the changing planet, McCutcheon passed along words from deniers such as S. Fred Singer as his personal beliefs:

“The good news is that science evidence [sic] has made it quite clear that the human contribution to a possible global warming is minor; in fact it cannot even be identified in the data record.”

With more and more evidence against Singer’s position, McCutcheon needs to bribe more people to legislate in his favor, and SCOTUS just gave that ability to him. Each oil, coal, and gas industry executive can spend $312,455,200 in this election to buy lawmakers. That’s a 2,600 percent increase in their legal donations. And it’s a pittance to them. The $150 million that Shel Adelson and his wife donated to GOP PACs last year is the equivalent of $280 to a person worth $50,000. Adelson makes $32 million, more than twice the $150 million, each day for the entire year. 

In 1976, the Supreme Court ruled that the legal basis for upholding campaign finance regulations is to prevent corruption. The Roberts Court takes the position that there are no strings attached to the huge sums of money that wealthy people pay for lawmakers. The majority’s definition of the corrupting “quid pro quo” exists only if a specific result is purchased from a specific legislator—according to five members of the Supreme Court. As in Citizens United, the majority of the court fails to consider “the possibility that an individual who spends large sums may garner ‘influence over or access to’ elected officials or political parties. Once again, Roberts tells Congress that if they want good laws, then they should pass them—knowing full well that the GOP will never try to pass any controls on campaign contributions until it works against them.

J. Gerald Hebert, the executive director of the Campaign Legal Center and one of the nation’s foremost voting rights and campaign finance attorneys, described the ruling as arrogant:

 “The Court today abandoned any pretense of respecting Supreme Court precedent or Congressional expertise on matters of campaign finance when it struck down longstanding federal limits on aggregate contributions to candidates, parties and PACs. Once again, the Roberts Court exhibits its complete ignorance of political realities, or worse, chose to ignore those realities, in striking down laws written by Congress, which is intimately aware of the political corruption that will likely ensue in the wake of this decision.”

robertsAs Ari Berman wrote:

“In the past four years, under the leadership of Chief Justice John Roberts, the Supreme Court has made it far easier to buy an election and far harder to vote in one.

“The Court’s conservative majority believes that the First Amendment gives wealthy donors and powerful corporations the carte blanche right to buy an election but that the Fifteenth Amendment does not give Americans the right to vote free of racial discrimination.

“These are not unrelated issues – the same people, like the Koch brothers, who favor unlimited secret money in US elections – are the ones funding the effort to make it harder for people to vote. The net effect is an attempt to concentrate the power of the top 1 percent in the political process and to drown out the voices and votes of everyone else. […]

“A country that expands the rights of the powerful to dominate the political process but does not protect fundamental rights for all citizens doesn’t sound much like a functioning democracy to me.”

Roberts, whose court allowed all states to keep people from voting, will probably never appreciate the irony of his introduction to McCutcheon:  “[t]here is no right more basic in our democracy than the right to participate in electing our political leaders.” 

Media contributes to the dumbing down of people in the United States. Today’s Huffington Post shows how far downhill it has gone since it was sold. The “business” section starts with Starbucks resuming its selling sweetened bread by the slice. This announcement was before GM’s CEO, Mary Barra calling the failure of her company to recall defective cars that killed 303 people in the last 12 years as  “very disturbing.” Following that was the vital information from WSJ that Southwest Airlines is beginning to look just like all the others.

An article on two men saving puppies from a flood is followed by gratuitous celebrity reporting, including “Britney Spears news.” Under “Twitterati” is Justin Bieber’s sage comment, “Why does everyone look like my mom on twitter. lol.” Finish with “how long would you survive the zombie apocalypse,” and you have a diet of reports that can well compete for the most inane Internet entries for the day.

The people who claim that money has no benefit in rulings should consider this news. Wealthy Robert H. Richards IV, who lives off his trust fund, was convicted of raping his three-year-old daughter. After his conviction in 2009, his wife filed another lawsuit charging that he penetrated his daughter with his fingers while masturbating and then molested his infant son. Yet Judge Jan Jurden ruled that the great-grandson of du Pont family patriarch Irenee du Pont would have only probation because he “will not fare well” in prison. As Delaware Public Defender Brendan J. O’Neill said, it is “extremely rare” for someone to fare well in prison. A defense lawyer agreed with the public defender. Michael W. Modica said, “I’ve never heard of the judge saying in general that he is not going to do well. Who thrives in jail?”

This is the kind of money that bought five justices on the U.S. Supreme Court. Today is National Walking Day, the day that the U.S. Supreme Court walked away from the U.S. Constitution—again.

June 28, 2012

SCOTUS Keeps Health Care Act

“It is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without insurance. Such legislation is within Congress’ power to tax.” Chief Justice John Roberts included this statement in his majority ruling that retained the Affordable Care Act with the exception of the Medicaid piece that threatened states not extending Medicaid with the government’s withdrawing all Medicaid funding. States that do not expand eligibility will lose only the funding for the expansion.

Roberts was joined by Justices Stephen G. Breyer, Ruth Bayer Ginsburg, Elena Kagan, and Sonia Sotomayor.

People guessing when the justices would deliver their decision waited for weeks until the very last day of their session. Conservatives were confident that they would be victorious in the ACA being struck down, and Democrats worried about the same result. Out of 21 constitutional law experts in the country, 19 thought the ACA is constitutional, but only eight of them predicted that the court would uphold it because of the behavior of conservative justices during the oral argument.

Maybe the most remarkable thing about the ACA is how little people understand it and how much they hate it. The biggest problem with evaluating the “hate,” however, is that there were two reasons for not liking the ACA: either people didn’t want any mandated health care, or they wanted a single-payer plan. Those with the latter opinion didn’t oppose the mandate, but the polls never differentiated between the two.

Where did the hate come from? Conservatives railing against today’s decision  have forgotten that the conservative public policy research institution, Heritage Foundation, proposed mandated health coverage over 20 years ago. Before President Obama, the individual mandate had Republican support. Conservatives who originally supported it during a Republican administration came out in solid opposition after President Obama was elected and pushed for this law.

Democrats got nervous about being part of mandated health care after the Tea Party revolution, leaving only attacks on the law. The polls went down on health care, and the progressives said even less about it, causing the polls to sink more in a downward spiral. The media joined the conservatives in their frequent use of “government run” to describe the act despite the fact that the law require people to buy insurance from private corporations.

One reason that many people thought that ACA would be struck down is that they no longer see SCOTUS as an impartial court that uses constitutionality to rule. Retired Justice John Paul Stevens wrote in his minority dissent to the Bush v. Gore decision that the ruling threatened “the nation’s confidence in the judge as an impartial guardian of the rule of the law.” The Citizens United case that was confirmed on Monday completed the threat, closing the door on democracy in this country. Seventy-one percent of people in this country believe politics would influence the Supreme Court’s ruling, compared with 20 percent who said the court will decide the case solely on legal merits.

As pieces of the ACA started going into effect, more and more people  appreciated it: 86 million people have received free preventative care, 105 million no longer face a lifetime cap on benefits, as many as 17 million children can no longer be denied coverage because of preexisting health conditions, and 6 million young people under the age of 26 can be included on their parents’ insurance policies.

Despite the plaintiffs’ claim that ACA is not constitutional, they showed that they believed it is in their brief. All people need to buy health insurance—the “individual mandate”—because companies would go bankrupt or policy costs would be unreasonably high if people bought it only after they get sick. The Constitution authorizes Congress “[t]o make all laws which shall be necessary and proper for carrying into execution” regulations of interstate commerce. As conservative Justice Antonin Scalia explains, this means that, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.” He took exactly the opposite position in his dissent today.

Congress further viewed the mandate as necessary to prevent “adverse selection” to “game” the new insurance rules, which proponents warned would spark a “death spiral” in insurance. If the mandate falls, the guaranteed-issue and community-rating regulations must therefore fall with it, as the Government itself has conceded. So the plaintiffs admitted that the Scalia Rule applies in this case.

Who has gained today? According to Avalere Health, the swing states benefit the most, getting insurance access to about 22.4 million people and subsidies for another 7.5 million. About 15 million people in those states will be eligible for Medicaid if those states decide to extend the program with federal funding.

Women gained big time today in terms of contraception and elimination of discrimination in costs for insurance policies. At this time, women pay $1 billion more for health insurance than men. Women pay more than men in 92 percent of best-selling health plans within states that permit gender rating. In most states, non-smoking women are commonly charged more than even smoking men. Even with maternity coverage excluded, nearly a third of plans charge women ages 25 to 40 pay at least 30 percent more or even higher than men for the same coverage.

All poor people gained today. The New York Times wrote, “When poor people are given medical insurance, they not only find regular doctors and see doctors more often but they also feel better, are less depressed and are better able to maintain financial stability, according to a new, large-scale study that provides the first rigorously controlled assessment of the impact of Medicaid.”

Those who become very ill gained today. ACA ends lifetime limits on coverage in 2010. It phases out annual limits on coverage by 2014, important for people with high medical bills from conditions such as cancer.

Taxpayers have also gained today because they no longer have to pay for uninsured people to go to emergency rooms and clinics. Because people are required to have health insurance, their health costs will be much less—and paid for by insurance. And Thomas Jefferson gained today: one measure he supported would have required people to pay into a public health insurance.

Even insurance companies will gain from additional customers although it has lost $1.1 billion in rebates to the insured. ACA requires that insurance companies spend at least 80 percent of subscriber premiums on health-care claims and quality improvement initiatives. According to a recent report, 12.8 million people will receive rebates this year with an average of $151 per household.

Republican lawmakers are spitting mad and  intend to put the ACA up for a vote in the House on July 9. Mitt Romney has accused President Obama of spending all his time on the lost cause of “Obamacare” instead of the economy. The Republicans plan to do exactly what Romney accused the president of.

Dissenting justices Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas use the same convoluted verbiage that other conservatives do: even constitutional provisions must be ruled unconstitutional because “the Act’s other provisions would not have been enacted without” it central elements, the mandate and the Medicaid provision. They might be able to get a very high price for their crystal ball that looks into the future.

They continue:

The case is easy and straightforward, however, in another respect. What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs.

To reach this conclusion, these four had to not only reject a century of Commerce Clause jurisprudence but also ignore the Necessary and Proper clause, and Congress’ taxation power. Their belief in the “sovereign states” is ironic when considering that these same conservatives voted against states rights in one of the decisions announced on Monday, the continuation of Citizens United. Based on the flimsiest of arguments, the four dissenters want to kill progressive legislation basically because their political ideologies tell them to do so.

President Obama gave an impressive speech describing the advantages of ACA. Just before his speech, Romney delivered his usual list of lies in criticizing ACA:

“Obamacare adds trillions to our deficits and to our national debt.” PolitiFact decribes this statement as “false.”

Obamacare “puts government between you and your doctor.” All insurance is  with private companies.

“Having 20 million people, up to that number of people, lose the insurance they want, is simply unacceptable.” If he’s talking about people who get their insurance through employers, their insurance companies are frequently changed, and ACA requires more coverage than many people have now. If they change, they benefit.

“And something that Obamacare does not do that must be done in real reform is helping lower the cost of healthcare and health insurance. It’s becoming prohibitively expensive.” The only way that progressives could lower healthcare cost is by regulation, a permanent no-no by conservatives.

From a mockery of Romney’s speech in The Borowitz Report: “I vow to repeal this law on my first day in office,” he told a crowd at a campaign rally.  “Until then, I will work tirelessly to make people forget that I used to totally love it.”

Mind-Cast

Rethinking Before Restarting

the way of improvement leads home

reflections at the intersection of American history, religion, politics, and academic life

© blogfactory

Genuine news

Civil Rights Advocacy

Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has. -- Margaret Mead

AGR Daily News

Quaker Inspired, Evidence Based, Art And Science Of Sustainable Health Plus Success - How To Create Heaven On Earth - Education For Seventh Generation Rainbow Warriors

JONATHAN TURLEY

Res ipsa loquitur - The thing itself speaks

Jennifer Hofmann

Inspiration for soul-divers, seekers, and activists.

Occupy Democrats

Progressive political commentary/book reviews for youth and adults

V e t P o l i t i c s

politics from a liberal veteran's perspective

Margaret and Helen

Best Friends for Sixty Years and Counting...

Rainbow round table news

Official News Outlet for the Rainbow Round Table of the American Library Association

The Extinction Protocol

Geologic and Earthchange News events

Social Justice For All

Working towards global equity and equality

Over the Rainbow Books

A Book List from Gay, Lesbian, Bisexual, and Transgender Round Table of the American Library Association

The WordPress.com Blog

The latest news on WordPress.com and the WordPress community.

%d bloggers like this: