Nel's New Day

July 6, 2020

Not All Bad in Week 180

Each year, the Supreme Court is usually finished by the end of June, having dropped all its bombs from the cases it hears. This year, however, the Supreme Court is waiting until July for the first time in 24 years. These are the five biggest ones still not released by July 5:

Subpoenas for Dictator Donald Trump’s (DDT) financial records: The House wants bank and accountant records to achieve its responsibility of oversight, and New York wants access to DDT’s personal and corporate tax documents. The decision determines whether DDT’s tax returns will see the light of day while he’s in the Oval Office. By denying the subpoenas, the high court will give presidents blanket immunity from criminal process.

Contraception Mandate in Affordable Care Act: The ACA requires most insurance plans and employer to cover preventative care, including contraception, without cost sharing. President Obama allowed religious nonprofits to claim an exemption, but DDT extended that exemption to all companies voicing religious or moral objections. The question is how far to allow Christians to control the U.S.

“Faithless electors” voting for their preference in the Electoral College: The question is whether electors representing their states should be required to select a president based on the states’ votes.

Religious exemptions from discrimination suits centering on parochial schools: Are Catholic schools immune from discrimination suits if they violate the First Amendment safeguards because of religious beliefs. One of the teachers was fired because she had breast cancer. Schools are declaring every employee—teachers, janitors, etc.—“ministers” so schools can claim “ministerial exception” in firing them.

Native sovereignty in Oklahoma: The case concerns whether the state can prosecute a crime by an enrolled member of another tribe on land that could still be classified as a reservation because the government never took action to take it away. The Muscogee (Creek) Nation maintains the reservation was never dissolved and Congress never transferred authority over its land, which includes Tulsa. If the Supreme Court ruled in favor of the Native Americans, other tribes could file lawsuits.

In other parts of the U.S., we the people are emerging victorious over fascist actions.

Two energy companies have dropped their six-year bid to build the 600-mile natural gas Atlantic Coast Pipeline tunneling under the Appalachian Trail because of uncertain investing after constant opposition. The company, Dominion, will sell other natural gas pipelines and storage assets to Warren Buffett’s Berkshire Hathaway Energy for $10 billion. Last week, Dominion completed the biggest wind farm project in the country, located 27 miles off the coast of Virginia Beach. The pipeline had been stopped in courts for its hasty and slipshod federal permitting process.

With the signature of Gov. Tate Reeves, Mississippi has completed the removal of the Confederate emblem from its state flag, the last one to feature the Confederate battle flag. A commission will develop a new flag with the phrase “In God, We Trust.”

Thanks to state voters, Oklahoma became the 37th state to approve Medicaid under the Affordable Care Act. Coverage begins July 1, 2021. The act should drive down the state’s 14-percent uninsured rate, and the federal government covers 90 percent of the cost of newly-covered adults.

DDT lost a restraining order against his niece’s new book, Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man. Simon & Schuster may continuing and distributing Mary Trump’s explosive insider account. Although a state Supreme Court judge imposed an order against the book, but the New York appellate division lifted it, permitting the book’s release on July 28.

U.S. District Judge Timothy Kelly, appointed by DDT, struck down DDT’s 2019 policy blocking thousand of Central American asylum seekers who didn’t first request protections in a nation between their home and the U.S. Like the ruling against DDT’s anti-DACA policy, the anti-asylum policy unlawfully bypassed the Administrative Procedure Act, requiring people to be informed and opportunity to respond. DDT ordered the policy to go immediately into effect.

The Securities and Exchange Commission (SEC) has openly come out against its chair, former private equity lawyer Jay Clayton, because of his decision to give private equity billionaires the opportunity to take advantage of people with 401(k) retirement accounts. Last week, DDT issued a letter permitting the savings of 100 million workers and retirees to be put at risk in high-risk, high-fee firms. SEC’s purpose is to police the financial industry, and it issued a damning report documenting privity equity crimes. One of the Supreme Court’s rulings last week had restricted SEC’s power to punish thee firms. The law may require restitution for criminal actions but not financial punishment. DDT now wants his good friend Clayton to become U.S. Attorney in Manhattan after firing Geoffrey Berman. Confirmation gives Clayton the ability to control prosecutors, the last line of defense, against private equity crimes. In 2014, a top SEC official reported legal violations or control weaknesses in over half the examined private equity firm, including fee gouging.

In a good news, bad news story, Lt. Col. Alex Vindman, who testified in DDT’s impeachment process, is currently being blocked from a promotion to colonel. That’s the bad news. The good news? Sen. Tammy Duckworth (D-IL) is blocking all 1,123 military promotions to the rank of colonel or above until Defense Secretary Mark Esper guarantees in writing Vindman will not be punished for his testimony.

Dealing with DDT is becoming harder and harder for Senate Republicans. DDT has threatened to veto defense appropriations bill with an amendment to remove Confederate names from military bases. Senate Majority Leader Mitch McConnell (R-KY), up for reelection, is particularly worried about a veto for the bill and said he hopes DDT doesn’t carry through with his threat. Removing the amendment before sending the bill on requires 60 votes—53 Republicans and seven Democrats. The popularity of the Black Lives Matter movement and the struggle for social justice could endanger congressional Republicans up for reelection—197 seats in the House and 21 in the Senate. Three of these senators up for reelection—Joni Ernst (IA), Martha McSally (AZ), and Mike Rounds (SD)—on the Armed Services Committee support the name changes. Ernst and McSally are in vulnerable positions.

Twitch and Reddit have joined Facebook and Twitter in removing DDT’s hateful rhetoric on social media. Among 2,000 subreddits, Reddit banned a longtime forum used by his supporters, The_Donald, for frequent rule-breaking, and video streaming platform Twitch temporarily suspended DDT’s channel for the same reason. Facebook also announced changes to ban hateful content and removed hundreds of boogaloo violent accounts. The decision came after several boogaloos were charged with crimes during the protesters. Facebook has already taken down accounts and pages from white supremacists Proud Boys, American Guard, and Northwest Front.

Facebook is most likely reacting to an advertising boycott quietly starting but reaching huge proportions. After only three days, 800 worldwide companies from Coca-Cola to Unilever pulled millions of dollars in advertising from Facebook. The visibility of the boycott also links Facebook with racism and hate with the hashtag #StopHateForProfit campaign. Facebook stock dropped 8.32 percent last Friday. Boycotters are still negotiating, with civil rights groups planning to meet with Facebook’s CEO Mark Zuckerberg. There may not be much success: Zuckerberg believes in free expression, no matter the lies and violence. Social media depends on engagement; Facebook’s business model uses controversy and outrage to get readers and thus ads. Yesterday, Zuckerman said he will make no policy changes.

Not all of DDT’s officials follow the party line. FDA Commissioner refused to comment on DDT’s claim that 99 percent of COVID-19 cases are “harmless” and  would not predict a timeline for vaccine availability after DDT asserted a vaccine or therapeutic would be ready “long before the end of the year.”

DDT is showing his fear and desperation by recommending people wear masks—despite his promotion of maskless activities. Last month, he told the Wall Street Journal people wore masks only to demonstrate their disapproval of him; last week, he told Fox, “I’m all for masks.” He added:

“Actually, I had a mask on. I sort of liked the way I looked, OK? I thought it was OK. It was a dark, black mask, and I thought it looked OK. Looked like the Lone Ranger.”  

A recent study shows a national mask mandate would save the economy from a five-percent GDP hit. But not if people wear them like the Lone Ranger.

July 5: The number of COVID-19 infections is due to top three million tomorrow. Today’s numbers: 2,982,928 – infections; 132,569 – deaths.

 

May 28, 2018

Rights’ Relief from Courts – Sometimes

Democracy from people often comes from court decisions. After Senate Majority Leader Mitch McConnell (R-KY) suspended democratic action by blocking any discussion for President Obama’s nominee for a Supreme Court Justice, SCOTUS moved away from people’s rights with Neil Gorsuch’s nomination by Dictator Donald Trump (DDT). Fortunately, the Supreme Court makes fewer than 100 decisions per year while courts across the nation can rule on constitutional rights in thousands of cases.

Recently, five Supreme Court justices removed rights from workers when five justices determined that employees must settle disputes through individual arbitration behind closed doors rather than through class action in open court. The decision worsens an earlier ruling allowing corporations to avoid class-action lawsuits from consumers. Justice Ruth Bader Ginsberg read part of her dissent from the bench:

“The court today holds enforceable these arm-twisted, take-it-or-leave-it contracts — including the provisions requiring employees to litigate wage and hours claims only one-by-one. Federal labor law does not countenance such isolation of employees. Trying to arbitrate such claims individually would be too expensive to be worth it, and “the risks of employer retaliation would likely dissuade most workers from seeking redress alone.”

Federal labor law permits employees to work together in improving their conditions and fight low wages, harassment, and discrimination, but the court states that companies can use arbitration clauses, forced on employees if they want the job, to ban joining together in legal actions. Employees must now fight individually against violations of minimum-wage laws, refusal to pay overtime, and requirements to work off the clock. Few private attorneys will take cases for so little money.

The day after this Supreme Court ruling, the National Labor Relations Board delivered an opposing position, that employees have the right to organize, bargain collectively and “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” According to the Board’s interpretation of Section 8, an employment agreement requiring employees to resolve disputes by arbitration or on an individual basis is an unfair labor practice. The question now will be what opinions supersede others.

In a Supreme Court’s decision that states can legally bet on college and professional sports, Justice Samuel Alito said that each state has the right to act on its own if Congress does not regulate sports gambling. Next year, the Supreme Court will hear a case on when federal law trumps state law.

After churches in Morris County (New Jersey) received almost $5 million for repairs, the state Supreme Court ruled that the state constitution forbids using public money for religious purposes. A year ago, the Supreme Court allowed taxpayer monies to be used for repair of a church’s playground in Missouri, but the ruling did not address houses of worship. The case may go to the Supreme Court.

A federal court in California ruled Friday against Education Secretary Betsy DeVos in deciding that the agency violated privacy laws by using the Social Security Administration to analyze loan forgiveness for students defrauded by Corinthian Colleges. The court ordered debt collection from defrauded students to stop after DeVos stated that only part of federal loans would be forgiven. DeVos is supporting other for-profit colleges. She appointed the dean of DeVry to head a team to investigate these schools, including DeVry. She has also frozen protections for students and reduced loan forgiveness relief for students defrauded by these schools.

Gavin Grimm, a transgender student, fought for years to use the bathroom in high school, and a federal judge ruled the school officials of Gloucester County (VA) violated his constitutional rights for stopping him from using the bathroom matching his gender identity after the 4th Circuit Court sent the case back to the lower court.

Judge Orlando Garcia, Chief Judge of the U.S. District Court for the Western District of Texas, ruled that the state must comply with the federal National Voter Registration Act (“NVRA”) (or “motor voter” law) and the Equal Protection Clause of the U.S. Constitution.

Construction on the final 18 miles of the Bayou Bridge pipeline in St. James (LA), located in an area called Cancer Alley, has been halted after a judge ruled that state regulators violated guidelines in issuing a coastal use permit. Town residents would have no way to evacuate after an explosion or other pipeline failure emergency, a fact not considered in the state’s permit. The company building the pipeline faces a legal challenge for its U.S. Army Corp of Engineers permit through the Atchafalaya Basin, a National Heritage Area and massive river swamp. The 5th Circuit Court began to hear this case the beginning of May, but pipeline builders are already cutting down old growth cypress trees.

DDT cannot block people from his Twitter account, according to a federal judge who wrote:

“The President presents the @realDonaldTrump account as being a presidential account as opposed to a personal account and, more importantly, uses the account to take actions that can be taken only by the President as President.”

DDT can mute people’s accounts so that he doesn’t have to look at their comments.

Another DDT sign came down when a New York State judge ruled that the name “Trump Place” can be removed from a high-rise condo. The bad news is that the condo cannot change its name, and the sign will stay until two-thirds majority of the condo association agrees to remove the signs. DDT’s name has already been removed from three Manhattan buildings and hotels in New York, Toronto, and Panama.

A New York appeals court refused to allow DDT to stay a defamation case by Summer Zervos regarding her claim that DDT sexually assaulted her. At this time, DDT can be deposed in the case, and lawyers can proceed with pretrial discovery, including demands for documents. In addition, Stormy Daniels’ lawyer, Michael Avenatti, said he’s vetting two more women on their claims that DDT gave them large hush-money payments. Zervos will subpoena documents from the Trump Organization about DDT’s alleged mistreatment of women, recordings from the archives of the president’s former reality show, and surveillance footage from the hotel in which Zervos says she was attacked.

The third federal judge has ruled against DDT over cuts to the Teen Pregnancy Prevention Program. The judge wrote that ending grants two years early was “arbitrary” and “capricious.” The 73 organizations receiving grants will have to follow DHS’ new requirements to focus on abstinence programs for continued funding while the eight suing organizations will not.

White supremacist Jacob Scott Goodwin has been found guilty of malicious wounding, nine months after he battered a young black man in a Charlottesville (VA) garage before his victim, 20-year-old DeAndre Harris was attacked by other white supremacists who broke his arm and injured his spine. Other attackers are awaiting trial. At the same event, another white supremacist deliberately drove into a crowd, killed Heather Heyer, and injured more than another dozen people. Two days after Goodwin’s guilt was established, white supremacist Alex Michael Ramos was found guilty of “malicious wounding” in the same attack. Both men face 20 years in prison. Two other men face trials for the assault.

Muslim-American Yonas Fikre is suing the government for putting him on its no-fly list to blackmail him into being an FBI informant to provide information about his place of worship, Portland’s largest Sunni mosque. His lawyer, Brandon Mayfield, has asked a three-judge panel of the 9th Circuit Court to continue the suit that had been dismissed after the government removed Fikre’s name from the list stopping him from returning to his home in the U.S. Judges were irritated by the DOJ sudden offer to stop the appeal by promising that Fikre won’t be put back on the list for the same reasons as in 2010. They asked why the DOJ does not think that Fikre deserves declaratory relief after his marriage was destroyed and his business was disrupted. Mayfield has been awarded a $2 million settlement after the FBI wrongly arrested him as a suspect in the 2004 Madrid train bombings and subjected him to the same unconstitutional actions as the government did to Fikre.

Ben Carson, HUD Secretary, is the next cabinet member to be sued. A rule requiring communities to examine and address barriers to racial integration established in 2015 mandated assessment of local segregation patterns, barriers to fair housing, and planning to correct the problems. Carson called desegregation efforts “failed socialist experiments” and suspended the rule. The lawsuit asserts that Carson did not provide for public notice or comment opportunity. Carson said that the process was too burdensome. In addition, the lawsuit claims that HUD violated its duty to guarantee that federal funds promote fair housing—for example, giving millions in HUD grants to white suburbs in Westchester County that refuses affordable housing.

The next branch to be covered is the legislature.

June 30, 2016

Supreme Court Does a 180 Degree Turn

Supreme Court decisions looked hopeless just six months ago. Many of us feared that women would lose abortion rights, and domestic abusers could stomp around with their guns. Affirmative action, rights of unions, and continued Affordable Care Act provisions seemed impossible. What a difference one person makes! Antonin Scalia’s death in February left only eight justices—for a long time if the GOP has its way—and the tone flipped from devastation to optimism.

The 4-4 ties kept an injunction against the DHS immigration policy but saved public union dues, especially after the court refused to hear the case again. Ties don’t establish the law of the land; they don’t establish precedent. All they do is confirm a lower court ruling. The case about religious objections from Catholic nonprofits refusing insurance coverage for employees’ birth control was returned to a lower court to be fixed. These cases, however, did not destroy a progressive movement; two of these three cases just slowed its progression.

In at least three cases, however, a majority voted in favor of progressives, both times with Justice Anthony Kennedy as the swing vote. The zombie case Fisher v. University of Texas, returning from what should have been an earlier death, upheld the school’s affirmative action plan. Race can continue to be considered to increase college admissions of disadvantaged minorities because, as Kennedy recognized, diversity’s educational benefits cannot be reduced to exact numbers. Now affirmative action can be used if race-neutral alternatives are not enough and if race plays only a small part. The only other Supreme Court case, decided in 2003, warned of a 25-year deadline. This ruling has no such warning. The vote in this case was 4-3 because Justice Elena Kagan recused herself. With Scalia’s vote, it would surely have been a tie.

Women are cheering the 5-3 ruling in Whole Woman’s Health v. Hellerstedt that struck down faux health requirements and “undue burden” for abortions in Texas. Law required clinic doctors to have “admitting privileges” in nearby hospitals and clinics to meet expensive, and unnecessary, standards for “ambulatory surgical centers” (ASC).  “Undue burden” was a standard set up for abortion restrictions in Planned Parenthood v. Casey almost 25 years ago, but the health issue set new law. Justices warned against state anti-abortion laws that claim to be for health reasons but don’t protect women’s health. Again Kennedy, for the first time supporting abortion rights for women, cast the deciding vote. If he had voted against Whole Woman’s Health, Texas could have kept closing all its clinics—now down to about 20 for 5.4 million of reproductive age.

This ruling affects laws in several states throughout the nation; almost half of them lied about health reasons in restricting abortion rights. The high court announced that it will not consider appeals from Mississippi and Wisconsin on laws similar to those in Texas, ending those unconstitutional laws. Alabama dismissed its appeal to keep its anti-abortion law. Laws are on hold in Kansas, Louisiana, Oklahoma, and Tennessee. Other states are still fighting: Michigan providers are deciding whether to challenge the state’s ASC law, and Florida’s admitting privileges law goes into effect on July 1.

In question also are other anti-abortion laws such as waiting periods and mandated useless medical procedures preceding the abortion. In Indiana, a judge blocked the state’s new anti-abortion law. Planned Parenthood will work to block anti-abortion laws in eight states.

In Voisine v. United States, two men from Maine whose guns were removed after misdemeanor convictions in domestic violence argued that “reckless” conduct wasn’t enough for them to lose their guns. The high court disagreed, voting 6-2 that “a reckless domestic assault qualifies as a ‘misdemeanor crime of domestic violence.”

A little-mentioned Supreme Court decision in the media may have a long-reaching impact. A 4-4 tie in Dollar General v. Mississippi Band of Choctaw Indians upholds rulings from the higher Tribal court, the District Court, and the 5th Circuit Court that non-Tribal businesses and individuals can legally face civil suit in Tribal courts. Dollar General had signed a contract with the tribe swearing to uphold its health and welfare, and the manager of a Dollar General on the reservation molested a 13-year-old Tribal boy.

Limited authority of Tribal governments frequently leaves little recourse for victims of sexual attacks. Native American women in the U.S. are twice as likely to suffer sexual assault as other women in the nation, and 80 percent of these assaults are by non-Tribal men who can get off free because tribal courts cannot criminally prosecute non-Tribal members not intimately known to the victims. Federal authorities tend not to pursue these rape cases.  This problem was exacerbated 38 years ago by Oliphant v. Suquamish, in which the high court ruled that Tribal courts cannot criminally prosecute non-tribal members even when the crime is committed on the reservation, making race a de jure (legal) factor in these cases.

About Oliphant, Amy Casselman, author and former case work for the Washoe Tribe of California and Nevada, said:

“Reservations became hunting grounds. This creates a lot of different types of crime—drug production, drug trafficking, human trafficking—but the people who disproportionately feel this sense of predation are Native women. Sexual assault in the US is an overwhelmingly intraracial crime, meaning that rape happens overwhelmingly between two members of the same race. Native women are the one statistical anomaly.”

In the 2013 reauthorization of the Violence against Women Act, Congress stipulated that Tribal courts only have the authority to prosecute non-Tribal sexual offenders who have pre-existing intimate relationships with the women they abused, purposely excluding from prosecution unknown predators who specifically seek out reservations to commit their crimes. The only course of action comes from civil suits.

The Supreme Court does not finalize this case that began 13 years ago; it merely allows the sexual assault case to move forward in tribal courts. But that is far more than Native Americans had before this decision. Full restoration of tribal sovereignty won’t happen until Congress passes a law or the high court overturns Oliphant.

The high court benefited women when it declined to hear a Washington state case in which pharmacists were told that their religious objections could not keep them from dispensing Plan B or other emergency contraceptives. That refusal to hear Stormans Inc. v. Wiesman allows women to get medication no matter what the person views of a pharmacy owner because the 9th Circuit Court had twice ruled in favor of women.

A Washington state judge has also ruled that public hospitals must provide abortions on side if they offer maternity services. The ruling supports the Reproductive Privacy Act, passed by voter initiative in 1991.

On the minus side, the tie allowing a Texas judge to keep his injunction against a DHS policy trying to stop some removals of immigrants appears to be a disaster for the president’s policies. According to noted judge Richard Posner, however, the decision may not make any changes. And as law professor Peter Shane wrote, the decision has nothing to do with executive decisions because it was an agency decision.

The Supreme Court dispensed two disasters in its last week. In Utah v. Strieff, a 5-3 ruling on gender lines overturned the Utah Supreme Court and ruled that an illegally detained person can be subject to lawful search and seizure if the person has a warrant for arrest. Justices Sonya Sotomayor and Ruth Bader Ginsburg argued that this decision contradicts previous Court decisions that had deemed such evidence inadmissible as “fruit of the poisonous tree.” Sotomayor said that police can verify legal status at any time, that a person’s body is always subject to invasion, and that it legitimizes racial profiling:

“The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong.”

The worst ruling, however, may have been the unanimous exoneration of former Virginia governor Bob McDonnell on a charge of corruption by overturning his conviction. Chief Justice John Roberts referred to Citizens United ruling that “ingratiation and access” were “not corruption.” McDonnell and his wife took expensive gifts, loans, and vacations worth more than $175,000 in return for favoring a diet-supplement business benefactor, but the court ruled that only formal and concrete government actions such as filing a lawsuit counts. Arranging meetings doesn’t, giving elected officials a blank check to trade for access. The case was returned to the lower court with the stricter standard but will most likely fail.

All except two of the progressive decisions described above would certainly have lost or had a tie if Scalia had voted. I would also ask if he might have swayed some of the justices toward his far-right position in argument if he were still sitting on the court. All in all, the outcome this year was much better than was expected when the session started last fall.

A message to people who agree with this man who said he wouldn’t vote for Hillary Clinton: “If that means Trump wins, it’s not my fault, the Democrats should have nominated a viable candidate.” Yes, it is your fault, and you will be enabling a GOP president to nominate Supreme Court justices worse than Antonin Scalia.

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