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Background

PFAS, or per- and polyfluoroalkyl substances, are a group of thousands of synthetic chemicals used in consumer products around the world. Due to their molecular structure, PFAS do not easily degrade and can last for millennia, leading to the moniker “forever chemicals.”

PFAS, a group of manufactured chemicals commonly used since the 1940s, are called “forever chemicals” for a reason. Bacteria can’t eat them; fire can’t incinerate them; and water can’t dilute them. And, if these toxic chemicals are buried, they leach into surrounding soil, becoming a persistent problem for generations to come…The secret to PFAS’s indestructibility lies in its chemical bonds. PFAS contains many carbon-fluorine bonds, which are the strongest bonds in organic chemistry. As the most electronegative element in the periodic table, fluorine wants electrons — and badly. Carbon, on the other hand, is more willing to give up its electrons. “When you have that kind of difference between two atoms — and they are roughly the same size, which carbon and fluorine are — that’s the recipe for a really strong bond,” Dichtel explained.

Today, PFAS are mostly used for their chemical and thermal stability and capacity to repel water and grease. Variants are found in food packaging, the coating of nonstick pans, stain-resistant furniture and carpets, water-resistant fabrics, personal care products, electronics, automobiles, and the aerospace and defense industries.

With such pervasive use, it was inevitable that PFAS would spread throughout the environment. Studies identified high concentrations in soil, air, water, seafood, processed foods (likely due to the packaging), wild animals, and humans. In fact, according to the U.S. Agency for Toxic Substances and Disease Registry, “most people in the United States have been exposed to PFAS and have PFAS in their blood.”

Research into the effects of PFAS exposure in humans is ongoing. Epidemiological studies, summarized in the academic journal Environmental Toxicology and Chemistry, “revealed associations between exposure to specific PFAS and a variety of health effects, including altered immune and thyroid function, liver disease, lipid and insulin dysregulation, kidney disease, adverse reproductive and developmental outcomes, and cancer.” While animal studies do not always correlate with human health effects due to physiologic differences between species, laboratory animal research indicates PFAS can cause damage to the liver and the immune system as well as low birth weight, birth defects, delayed development, and newborn deaths.

Fifth Circuit

A three-judge panel of the 5th Circuit overturned a ban last month on plastic containers contaminated with a PFAS compound known to cause cancer. Inhance Technologies, based in Houston, Texas, produces approximately 200 million fluorinated high-density polyethylene (HDPE) plastic containers using a process that creates a toxic PFAS called PFOA. According to the Environmental Protection Agency (EPA), there is no safe level of exposure to PFOA. Neither the EPA nor, allegedly, Inhance were aware that the company’s fluorination process created PFAS until 2020, when an environmental group notified the agency.

The EPA ordered Inhance to cease manufacturing PFAS under TSCA section 5(f), which allows the EPA to regulate any “significant new use” of a chemical substance.

...EPA has determined that three of the PFAS (PFOA, perfluorononanoic acid (PFNA) and perfluorodecanoic acid (PFDA)) are highly toxic and present unreasonable risks that cannot be prevented other than through prohibition of manufacture. Therefore, under TSCA section 5(f), EPA is prohibiting the continued manufacture of PFOA, PFNA and PFDA that are produced from the fluorination of HDPE. EPA also determined that the remaining six of the nine PFAS chemicals manufactured by Inhance may present an unreasonable risk of injury to health or the environment and, under TSCA section 5(e), is requiring the company to cease manufacture of these chemicals, and to perform additional testing if it intends to restart production.

Inhance sued the EPA, arguing that its manufacturing process is not a “new use” because it has been creating fluorinated containers using the same process since 1983. The EPA countered that a “significant new use” is any use “not previously known to” the agency. When crafting rules to regulate PFAS in 2015, the EPA required companies to submit their prior manufacture or use of PFAS for approval—a step that Inhance did not take, as it claims it was unaware it was creating PFAS. Without approval for an “ongoing use,” the EPA treated Inhance’s process as a “significant new use” enabling the agency to use Section 5 for an expedited review.

• See this amicus brief for a more in-depth explanation of how the EPA handled the PFAS rule-making and exempted certain pre-existing uses from the rule.
• It is worth noting that Inhance’s claimed ignorance that it was producing PFAS is suspect because a 2011 scientific study, conducted three years before the EPA’s rule, found PFAS in their company’s containers. Additionally, according to The Guardian, “Since 2020, Inhance appears to have repeatedly lied to regulators and customers about whether PFAS leached from its containers, and for several years resisted EPA’s demands to submit its process for review.”

A 5th Circuit panel (made up of a G.W. Bush appointee, an Obama appointee, and a Trump appointee) sided with Inhance last month, vacating the EPA’s orders to stop producing PFAS. The judges did not dispute that the manufactured chemicals present an unreasonable risk of injury to human health and the environment but said that the EPA used the wrong rule to limit production:

...because Inhance did not possess “extraordinary intuition” or the “aid of a psychic” to foresee that the EPA would regulate the fluorination industry, Inhance faces being shuttered by the agency’s belated “discovery” of its process. Fortunately for Inhance, such foresight is “more than the law requires.” We therefore eschew the EPA’s interpretation of “significant new use” and instead adopt Inhance’s more straightforward interpretation of the statute. And that dooms the EPA’s orders at issue here, because Inhance’s fluorination process was not a significant new use within the purview of Section 5.

Instead, the EPA will have to use Section 6 to regulate chemicals, including PFAS, that are already in use...

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Louisiana imprisons so many people that a 2012 Times-Picayune investigation dubbed the state the “world’s prison capital” for its high incarceration rate — “nearly five times Iran's, 13 times China's and 20 times Germany's.” In recent years, Louisiana’s rate has fallen below Mississippi’s, largely driven by former Democratic Gov. John Bel Edwards’ criminal justice reforms. With Bel Edwards now out of office, replaced by Gov. Jeff Landry (R), Louisiana Republicans immediately used their new trifecta to roll back the reforms and introduce harsher policies than the state has seen in decades.

A quick history lesson

Louisiana’s prison system, like that of many southern states, traces its modern origins to the abolition of slavery. The 13th Amendment, ratified in 1865, banned slavery and involuntary servitude “except as a punishment for crime,” opening the door for states to use the criminal justice system as a legal way to oppress African Americans and extract value from forced labor.

An array of laws designed to criminalize Black people, called Black Codes, were enacted throughout the South in the wake of emancipation. A central element of these laws charged unemployed or unhoused Black people with “vagrancy,” a crime punishable by a term of labor if a fine was not paid. Thomas W. Conway, the Freedmen's Bureau commissioner for Louisiana, described how this system, known as convict leasing, was abused in Louisiana:

“In the city of New Orleans last summer, under the orders of the acting mayor of the city, Hugh Kennedy, the police of that city conducted themselves towards the freedmen, in respect to violence and ill usage, in every way equal to the old days of slavery; arresting them on the streets as vagrants, without any form of law whatever, and simply because they did not have in their pockets certificates of employment from their former owners or other white citizens.

”I have gone to the jails and released large numbers of them, men who were industrious and who had regular employment; yet because they had not the certificates of white men in their pockets they were locked up in jail to be sent out to plantations…”

One of these plantations later became a prison under state control: the infamous “Angola” Louisiana State Penitentiary. To this day, prisoners at Angola are forced to perform grueling agricultural labor, supervised by armed guards on horseback.

The old system of convict leasing also continues in a new form. After a 1975 lawsuit challenging the brutal and dangerous conditions at Angola, a federal judge limited the population at the prison. So Louisiana, instead of building more prisons or reducing incarceration, began offering local parishes a per diem for each prisoner they board. Incentivized by $177 million a year in per diem payments from the state, sheriffs expanded local jails to hold more state prisoners. Because these are pre-trial facilities, there is no legal requirement to allow outside visits or develop enrichment programming, even though many state prisoners will spend years of their sentence inside.

Now, combine the above factors—forced prison labor that financially benefits the powerful and a per diem incentivizing jailing people—with the incorrect perception that crime is on the rise. The result is a raft of bills recently passed in Louisiana that will increase incarceration rates and keep people in jail, providing dirt-cheap labor and facilitating a cash influx for longer sentences.

The bills

Mass incarceration

Four bills signed into law by Gov. Landry work together to increase the length of sentences, requiring jails and prisons to house more inmates for much longer.

House Bill 9: Eliminates the opportunity for parole for anyone who commits a crime after August 1, 2024. Contains an exception for those given life sentences as juveniles.

House Bill 10: Reduces the amount of time that can be taken off of someone’s sentence due to good behavior and requires incarcerated people to serve 85% of their sentence. The previous law, enacted as part of the state’s 2017 reforms, required nonviolent offenders to serve 35% of their sentences before being eligible for “good time” release. Before that, the minimum was 40%.

House Bill 11: Increases the amount of time a person on probation can be sent back to jail for a technical violation (e.g. missing an appointment with their probation officer) and allows judges to imprison people on parole or probation for merely being arrested, not convicted. The bill also extends the length of probation required for those released from incarceration from three years to five years and allows probation to be extended due to the inability to pay fines or fees.

Senate Bill 5: Makes it more difficult to obtain parole by requiring a unanimous vote (instead of a majority vote) by the parole board and limiting terms of eligibility.

According to the Crime and Justice Institute, the costs of House Bill 10 alone will amount to hundreds of thousands of dollars per inmate:

According to CJI’s research, persons released from Louisiana prisons in 2022 served an average of 41% of their sentence. If they would have served 100%, it would have resulted in an additional 6,347 days in prison. More than half of that amount would be served in local jails, where 53% of individuals serve their time. That would result in another $151,000 in cost per inmate for sheriffs, even after factoring in state reimbursements.

If the 2022 releases would have served 85% of their sentences, they would have spent an additional 2,497 days incarcerated at a reimbursement-adjusted cost of $121,000 per person for local jails.

Due to the increased cost, sheriffs are likely to begin “lobbying the state legislature for higher per diem rates,” Lydia Pelot-Hobbs, author of Prison Capital: Mass Incarceration and Struggles for Abolition Democracy in Louisiana, told Bolts Magazine.

“We’re going to see sheriffs organizing and pushing to expand their jails for this moment,” she said. “We are going to see sheriffs mobilizing and organizing to get either property taxes or millages or sales taxes to get more jail space to incarcerate the state prisoners. I also think we’re likely going to see them lobbying the state legislature for higher per diem rates.”

Juveniles

A trio of other bills will change how prosecutors charge juvenile offenders—incarcerating more young people—and release information on juvenile records that was previously kept private.

Senate Bill 3: Charges all 17-year-olds who commit a crime as adults, placing them in adult prisons and jails.

Louisiana already has a mechanism to transfer juveniles accused of serious crimes into the adult justice system. SB 3 would result in courts sentencing 17-year-olds who commit petty crimes more harshly and funneling them into the adult system, with fewer rehabilitation options and [poorer outcomes](https://ojjdp.oj...

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“Show me your papers” law

The U.S. Supreme Court allowed Texas to enforce its strict state immigration enforcement law in a 6-3 decision yesterday.

Background

The law, known as SB 4, gives state and local authorities the power to arrest people suspected of illegally crossing the Texas-Mexico border. Upon being convicted of illegal entry and completing a term of imprisonment, a judge must order “the person to return to the foreign nation from which the person entered or attempted to enter.” Alternatively, a judge may dismiss the charges if the person agrees to return to Mexico voluntarily. The process contains no provisions that ensure due process for migrants or allow them to seek humanitarian protection. It further criminalizes Black, brown, and indigenous people who may be detained—regardless of legal status—for no other reason than the color of their skin.

Civil rights groups sued the state in December, arguing that “S.B. 4 is patently illegal” for “violat[ing] the Supremacy Clause of the United States Constitution” by usurping the “federal government’s exclusive immigration powers.”

S.B. 4 creates a new state system to regulate immigration that completely bypasses and conflicts with the federal system. It allows state officers to arrest, detain, and remove individuals from the United States and mandates removal for those who are convicted of the new state crimes of illegal entry and reentry—all without any input or involvement whatsoever from federal officials.

S.B. 4 requires state officers to make determinations of federal immigration status and to incarcerate and remove noncitizens pursuant to these determinations, but it does not provide noncitizens with any of the mechanisms or pathways to apply for or receive federal protection from removal. Moreover, the system prohibits state courts from pausing cases to obtain determinations of status from the federal government or abstaining while federal immigration proceedings take place.

The U.S. Department of Justice later also sued Texas, alleging that the state’s “efforts, through SB 4, intrude on the federal government’s exclusive authority to regulate the entry and removal of noncitizens, frustrate the United States’ immigration operations and proceedings, and interfere with U.S. foreign relations.”

U.S. District Judge David Ezra, a Reagan appointee, issued a preliminary injunction blocking the law at the end of last month. “[T]he Supremacy Clause and Supreme Court precedent affirm that states may not exercise immigration enforcement power except as authorized by the federal government,” Ezra wrote. “The United States will suffer immediate irreparable harm if SB 4 takes effect,” he continued, through frustrating Department of Homeland Security priorities, disrupting foreign relations, and preventing the nation from fulfilling its human rights obligations.

Texas immediately appealed to the 5th Circuit, which issued a temporary administrative stay of Judge Ezra’s order to take effect on March 9 without Supreme Court intervention. The use of an administrative stay rather than a stay pending appeal will become important. For now, know that administrative stays are normally employed to freeze legal proceedings to preserve the status quo (i.e. the law of the land pre-SB 4) until judges can rule on a party’s request for a stay pending appeal (when further arguments will occur).

The DOJ appealed to the U.S. Supreme Court, asking the justices to vacate the stay and leave Judge Ezra’s ruling in place while legal proceedings play out.

The ruling

A presumably six-justice majority ruled in favor of Texas, allowing SB 4 to take effect. Justices Amy Coney Barrett and Brett Kavanaugh were the only conservatives to go on record, with Barrett writing that the 5th Circuit’s unusual choice to use an administrative stay exempts the action from review:

If the Fifth Circuit had issued a stay pending appeal, this Court would apply the four-factor test set forth in Nken v. Holder—including, as relevant in this Court, an assessment of certworthiness—to decide whether to vacate it. But the Fifth Circuit has not entered a stay pending appeal. Instead, in an exercise of its docket management authority, it issued a temporary administrative stay and deferred the stay motion to a merits panel, which is considering it in conjunction with Texas’s challenge to the District Court’s injunction of S. B. 4. Thus, the Fifth Circuit has not yet rendered a decision on whether a stay pending appeal is warranted. That puts this case in a very unusual procedural posture…So far as I know, this Court has never reviewed the decision of a court of appeals to enter—or not enter—an administrative stay. I would not get into the business.

In other words, Barrett recognized the gamesmanship of issuing an administrative stay but chose not to intervene, effectively blessing the 5th Circuit’s ploy to allow SB 4 to take effect without proper review. She reveals this fact by saying “the time may come…when this Court is forced to conclude that an administrative stay has effectively become a stay pending appeal and review it accordingly…If a decision does not issue soon, the applicants may return to this Court.” No conservative justice, including Barrett, wrote about the impact of letting SB 4 take effect.

Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson, dissented, explaining why the 5th Circuit’s stay was misused:

An administrative stay…is intended to pause the action on the ground for a short period of time until a court can consider a motion for a stay pending appeal. For that reason, at a minimum, administrative relief should (1) maintain the status quo and (2) be time limited. The Fifth Circuit’s administrative stay here was neither, and thus constituted an abuse of discretion.

Here, the Fifth Circuit’s administrative stay upends the status quo because it allows S. B. 4—a brand new state law that alters the delicate balance of federal and state power in immigration enforcement—to go into effect. The District Court preliminarily enjoined S. B. 4 and declined to stay that injunction. The Fifth Circuit did not need to enter an administrative stay to preserve the status quo; the District Court’s decision already achieved that. The Fifth Circuit abused its discretion in entering the status-altering administrative stay.

The Fifth Circuit’s administrative stay is also temporally unbounded. Because the Fifth Circuit deferred consideration of the motion for a stay pending appeal, the administrative stay is likely to last until the merits panel receives briefing, hears oral argument, and renders a decision on either Texas’s appeal or at least Texas’s motion for a stay pending appeal. That timeline would leave the administrative stay in effect for well over a month.

If allowed to take effect, Sotomayor wrote, SB 4 “will transform the balance of power at the border and have life-altering consequences for noncitizens in Texas.”

Justice Elena Kagan, in her own dissent, wrote that she does “not think the Fifth Circuit’s use of an administrative stay, rather than a stay pending appeal, should matter. Administrative stays surely have their uses. But a court’s unreasoned decision to impose one for more than a month, rather than answer the stay pending appeal issue before it, should not spell the difference between respecting and revoking long-settled immigration law.”

Reverberations and reversal

Hours after the Supreme Court allowed SB 4 to take effect, Mexico’s Ministry of Foreign Affairs released a statement condemning the law for “criminalizing” migrants and “encouraging that separation of families, discrimination and racial profiling that violate the human rights of the migrant community.” Consequently, Mexico declared that it “will not accept, under any circumstances, repatriations by the State of Texas,” setting up a major international incident should Texas try to deport individuals.

Luckily, late last night, a new panel of the 5th Circuit stepped in and ‘voted 2-1 to dissolve the administrative stay issued by a different panel earlier this...

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Wisconsin

Wisconsin legislators are considering a bill to prohibit localities from implementing stricter animal welfare standards than the state already imposes for agricultural operations. Assembly Bill 957, passed by the House last month, would block cities and counties from more tightly regulating how farms keep, treat, kill, and dispose of livestock animals. Supporters argue that a patchwork of inconsistent regulations across the state would create “uncertainty and instability in farmers.” Opponents disagree, pointing to the environmental and health harms caused by large livestock farms, known as concentrated animal feeding operations (CAFOs), that local governments have a right to regulate.

There are CAFOs located across Wisconsin but the highest concentrations are in the eastern part of the state, with over 80 in four counties (Manitowoc, Brown, Kewaunee, and Fond du Lac) alone. Due to the high number of animals confined in small spaces, CAFOs produce immense amounts of waste and pollutants. Just one CAFO farm can produce as much raw sewage as the city of Philadelphia. But unlike human sewage treatment plants, most CAFOs do not treat animal waste products to reduce disease-causing pathogens or remove chemicals and other pollutants. Instead, this untreated waste is stored for months in anaerobic pits and then often applied to farm fields. Pollutants produced at each step contaminate the air, soil, and water of surrounding regions, leading to a “significantly higher risk” of mortality for nearby residents.

Eureka (Polk County), Wisconsin, is one of five towns that recently enacted its own permit regulation for CAFOs, requiring any new large farms to submit plans for preventing infectious diseases, air pollution, and odor, as well as for managing waste and handling dead animals. Uniquely, it also mandates that any CAFO outside of town must obtain the permit if the owners intend to spread manure within Eureka. A family who owns a dairy operation in Polk County (but not in Eureka) threatened to sue last year, arguing that the town’s ordinance requirements are illegal and need to be approved by the state.

• Further reading: “Massive Kewaunee factory farm, DNR reach settlement on manure spreading, water monitoring,” Milwaukee Journal Sentinel

Oklahoma

The Oklahoma Senate is taking up a bill passed by the House last month to shield poultry companies from lawsuits over pollution. HB 4118 would “insulate the poultry grower, integrator, and waste applicator from any private right of action” as long as they have an approved waste management plan from the state. Companies that violate the plan—by mismanaging chicken litter (waste and bedding) and contaminating the water supply, for example—would still avoid liability.

“I can’t think of another industry that has this type of immunity,” said Matt Wright, chairman of the Conservation Coalition of Oklahoma, a nonprofit that opposes the bill it calls a “license to pollute.”

“If an oil and gas company had a spill but said they at least had a plan that tried to avoid the spill, they can still be held liable.”

The poultry industry in Oklahoma has flourished in recent years, with more than 500 farms raising over 215 million chickens for consumption in 2022. These large-scale poultry farms are allowed to build near residential areas and waterways with little oversight due to the state’s industry-friendly classification: As long as a farm transports its chicken litter off site, it does not have to register as a CAFO.

Oklahoma gives numerous large industrial chicken farms an alternative registration process that doesn’t require notice to neighbors or as strict a setback requirement. Expanding poultry operations have used that alternative system to double the number of chickens raised in the state in recent years, ushering in a new wave of industrial poultry farms that many residents and environmental groups said is bringing with it increased traffic and pollution…

Residents living near the new poultry farms complain of offensive odors and debris, increased truck traffic, and contaminated well water systems. Environmental groups believe the litter from poultry farms has polluted area creeks and lakes after being sold as fertilizer to many area crop farms…Levels of enterococcus, which indicates the presence of pathogens from animal feces, have been found to be as much as 36 times higher than the state standard of 61 colonies per 100 milliliters set by the Oklahoma Water Resources Board [in an area with a high concentration of large industrial poultry farms].

Rep. David Hardin, a Republican from Stilwell, proposed HB 4118 less than a year after the state won a long-running court case against poultry industry giants Tyson, Cargill, Peterson Farms, and Simmons Foods for polluting the Illinois River. However, the case is in limbo after mediation efforts reportedly fell through.

Kansas

Legislators in Kansas are on the verge of passing two bills that boost fossil fuel reliance despite the state's suitability for increasing solar and wind power sources.

SB 455, approved by the state Senate last month, would allow utilities to charge customers for operating and maintaining coal plants that run infrequently and may otherwise be slated for retirement. Additionally, the bill only permits coal plants to be closed for economic reasons, “not principally based on achieving environmental, social and governance goals.”

One of the bill’s main proponents in the state Legislature is Sen. Mike Thompson, who rejects the overwhelming scientific consensus that human activity is warming the climate. He said the measure is a response to the Biden administration and EPA’s proposed regulations to limit power plant emissions. EPA “has been trying to implement through fiat various rules about emissions and carbon dioxide, sulfur dioxide, [nitrogen] oxide,” Thompson, a former television meteorologist, said on the Senate floor. “They’ve arbitrarily clamped down on this, and it’s causing coal plants all over the United States to be prematurely closed.”

The second bill, HB 2527, creates a mechanism to fund the construction of a new gas-burning power plant in the hopes of attracting investors and developers. Evergy, the largest electric utility in Kansas, proposed both HB 2527 and SB 455.

Meanwhile, lawmakers are also considering a bill to prohibit localities from banning single-use plastic bags, cups, and straws for a second time. Gov. Laura Kelly (D) vetoed similar legislation in 2022.

House Bill 2446, the most recent iteration, was proposed after the town of Lawrence banned single-use plastic bags last year. Supporters of the bill argue that businesses would be unreasonably harmed by forcing them to purchase reusable bags for use in certain towns but not others:

Sen. Mike Thompson, a Shawnee Republican who chairs the Senate Federal and State Affairs Committee,...

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The U.S. Supreme Court unanimously ruled yesterday that states cannot unilaterally remove presidential candidates from the ballot. The case, Trump v. Anderson, originated as a challenge to a Colorado Supreme Court decision removing Trump from the state’s ballot under the 14th Amendment of the Constitution. The relevant provision barring insurrectionists from holding office reads:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

While all nine justices—including Justice Clarence Thomas, who did not recuse from the case despite his wife’s participation in said insurrection—agreed on overturning Colorado’s ruling, the court split on the breadth of the ruling.

The five justice majority (Roberts, Thomas, Alito, Gorsuch, and Kavanaugh) wrote that “[s]tates may disqualify persons holding or attempting to hold state office” but “have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.” Allowing states to disqualify federal candidates, they wrote, would create a “patchwork” of inconsistent results based on a variety of conflicting procedures:

...state-by-state resolution of the question whether Section 3 bars a particular candidate for Presidentm from serving would be quite unlikely to yield a uniform answer consistent with the basic principle that “the President. . . represent[s] all the voters in the Nation.” Conflicting state outcomes concerning the same candidate could result not just from differing views of the merits, but from variations in state law governing the proceedings that are necessary to make Section 3 disqualification determinations… The result could well be that a single candidate would be declared ineligible in some States, but not others, based on the same conduct (and perhaps even the same factual record).

Bizarrely, for a majority that often disenfranchises large swaths of voters by blessing suppression tactics and gerrymandering, the five justices now worry that allowing states to disqualify an insurrectionist would create “[a]n evolving electoral map” that “could nullify the votes of millions and change the election result.” Keep in mind, also, that Thomas (the only justice still on the bench) voted in favor of stopping the 2000 recount, potentially changing the election results himself.

The three liberal justices agreed, writing that allowing Colorado to keep Trump off the ballot would “create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles.” This doesn’t make sense—federalism is a state-by-state patchwork by design. We allow each of the fifty states to run their own elections by their own rules within the Constitution’s framework. For example, major political parties must clear different thresholds in different states (e.g. 3% of votes cast for governor in Alaska; 20% in Connecticut; Mississippi has no such requirement) for their candidate to appear on the ballot. Three states (Alabama, Mississippi and New Hampshire) do not offer early voting. 15 states only permit certain voters to request an absentee ballot based on a pre-approved list of “excuses” (that also vary wildly) of why that voter can’t make it to the polls on Election Day. These differing regulations and procedures are the definition of a “state-by-state patchwork” that potentially “nullify the votes of millions and change the election result.” Yet, the Court sees no problem here.

• As Luppe B. Luppen writes, “all of [the] sudden, and according to all the Justices, letting Colorado make up its ballot in accordance with the Constitution’s prohibition on oathbreaking insurrectionists somehow violates the Constitution’s design.”

Where the liberal justices disagree is the majority’s choice to go beyond what is necessary to resolve the case and “opine on how federal enforcement of Section 3 [of the 14th Amendment] must proceed.” Congress, the majority says, must “prescribe” specific procedures to “ascertain” when an individual is disqualified under the 14th Amendment. Essentially, this means that a “Section 3 disqualification can occur only pursuant to legislation enacted for that purpose.” Trump v. Anderson did not involve federal enforcement of Section 3 nor did either party ask the Court to consider if it did.

The Court today needed to resolve only a single question: whether an individual State may keep a Presidential candidate found to have engaged in insurrection off its ballot. The majority resolves much more than the case before us. Although federal enforcement of Section 3 is in no way at issue, the majority announces novel rules for how that enforcement must operate. It reaches out to decide Section 3 questions not before us, and to foreclose future efforts to disqualify a Presidential candidate under that provision. In a sensitive case crying out for judicial restraint, it abandons that course…By resolving these and other questions, the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.

Furthermore, as election expert Rick Hasan explains, the majority gives itself the power “to second guess any congressional decision over enforcement of Section 3.”

Justice Amy Coney Barrett authored her own opinion expressing disapproval of the majority’s overreach, writing that the case “does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.” But, she says nothing more because “the volatile season of a Presidential election…is not the time to amplify disagreement.”

Finally, it is important to note how quickly the court can move when it wants to. The Colorado decision was issued on December 19, 2023. The U.S. Supreme Court took up the case on January 5, heard arguments on February 8, and released its opinion on March 4. All in all, the process took less than three months to decide in Trump’s favor.

Compare that timeline to the one involving Trump’s presidential immunity claim: Special Counsel Jack Smith petitioned the U.S. Supreme Court to clear up the issue immediately, without waiting for the D.C. Circuit, on December 11, 2023. The Court denied his request. The D.C. Circuit heard the appeal and released its opinion denying Trump’s immunity claims on February 6. Trump appealed to SCOTUS, which then took three weeks to think about it. On February 28, the justices announced they would hear the case with a leisurely briefing schedule and oral arguments set for the week of April 22.

In the most likely scenario, the Court will release its opinion in June, six months after Smith brought his first petition. This (seemingly unnecessarily) prolonged timeline makes it unlikely that Donald Trump will go to trial for election interference before the November election.

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This month’s Alabama court ruling that IVF (In Vitro Fertilization) embryos are “children” covered by wrongful death lawsuits has Republicans scrambling to distance themselves from the fallout. According to the party’s own polling, 85% of Americans support increasing access to fertility-related procedures and services. The high level of support remains consistent among the GOP’s most dedicated voters: 78% of abortion opponents and 83% of evangelicals support IVF specifically.

Among the slew of candidates attempting to disown the Alabama opinion are many who support fetal personhood—the very ideology that made the court’s ruling possible. Fetal personhood is the belief that life begins at conception and, therefore, embryos and fetuses are simply “unborn children” with the same rights and protections as born children.

Roe and Dobbs

Before we talk about the current effort to enshrine fetal personhood into law, we must look 50 years into the past to Roe v. Wade. In defending Texas’s ban on abortion before the U.S. Supreme Court in 1972, Texas Assistant Attorney General Robert C. Flowers argued that “it is the position of the State of Texas that upon conception we have a human baby, a person within the concept of the Constitution of the United States and that of Texas also.”

We all now know that the justices ultimately ruled 7-2 against Texas, holding that pre-viability abortion bans infringe on the mother’s right to privacy “founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action.” Less well-known is the majority’s explicit rejection of fetal personhood:

The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution…But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application.

All this, together with our observation, supra, that, throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn.

Thus, Roe stood as a backstop against the legal recognition of fetal personhood for nearly half of a century. Then Justice Samuel Alito came along with a newly empowered conservative majority, declaring in Dobbs v. Jackson Women’s Health that “Roe was egregiously wrong from the start.” In addition to removing all constitutional barriers to states imposing abortion bans, Dobbs outright refused to weigh in on fetal personhood, instead leaving states free to embed the belief in their legal codes as they see fit:

Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth. The dissent, by contrast, would impose on the people a particular theory about when the rights of personhood begin. According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed.

Alabama ruling

The Alabama Supreme Court ruled 7-2 last week that IVF (In Vitro Fertilization) embryos are “children” subject to wrongful death lawsuits—a decision that will likely cause the state's five fertility clinics to close due to increased liabilities.

• IVF is a type of fertility treatment where eggs are combined with sperm outside of the body in a lab (video explainer by the Cleveland Clinic). Numerous embryos are created because, on average, only 50% will progress to the blastocyst stage before being transferred into the mother’s body. The failed or low-quality embryos are discarded. Unused healthy embryos are either frozen for potential future use, discarded, or donated (to someone else or for use in research).

The case, LePage v. Center for Reproductive Medicine, Inc., originated when a hospital patient wandered into an adjacent “unsecured” cryogenic nursery and tampered with an IVF freezer, destroying preserved embryos in the process. The parents—who had already successfully conceived via IVF—sued, alleging that the clinic was liable under Alabama’s Wrongful Death of a Minor Act based on their argument that embryos are, for legal purposes, children.

Associate Justice Jay Mitchell, a member of the Federalist Society, wrote for the majority that embryos are actually “extrauterine children” (defined by Mitchell as “unborn children who are located outside of a biological uterus”) and, therefore, protected by the Wrongful Death of a Minor Act. To support their claim, the majority pointed to dictionary definitions from the time the Act became law (1872), purportedly defining “child” as including the unborn. They also cited Alito’s declaration in Dobbs that “even as far back as the 18th century, the unborn were widely recognized as living persons with rights and interests.”

Let’s say you doubt that an 18th-century American could even imagine a process that enabled fertilization outside of the womb. That doesn’t matter, the majority argues, because a provision of the Alabama Constitution referred to as the Sanctity of Life Amendment requires courts to interpret “the rights of the unborn child equally with the rights of born children.” The amendment states, in part, that “it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.”

The implications of the majority’s reasoning reach beyond wrongful death claims: every state law involving “children” must be extended to embryos. The destruction of unused embryos, even with parental permission, would appear to be homicide under the standard laid out by the majority.

In case it wasn’t clear where the Alabama Supreme Court’s vision of fetal personhood comes from, Chief Justice Tom Parker spells it out very clearly: religion.

In summary, the theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself. Section 36.06 recognizes that this is true of unborn human life no less than it is of all other human life -- that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.

• Parker is close friends with former Alabama chief justice and disgraced U.S. Senate candidate Roy Moore. While running for a judicial seat on the court in the mid-2000s, Parker attended a party in honor of Confederate general and KKK grand wizard Nathan Bedford Forrest, handed out confederate flags at the funeral of a Confederate widow, and was photographed alongside leaders of the hate groups League of the South and Council of Conservative Citizens. And if that wasn’t enough, in a recent interview with QAnon conspiracy theorist Johnny Enlow, Parker “indicated that he is a proponent of the ‘Seven Mountain Mandate,’ a theolog...

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This week, Keep Track takes a look at a selection of bills under consideration by the Florida legislature. The Sunshine State, controlled by an increasingly extreme Republican trifecta, has been a testing ground for legislation that chips away at constitutional and civil rights. Bills that become law and survive subsequent legal challenges are often copied by other red states—like the “Don’t Say Gay” law, which was duplicated and introduced in at least 20 other states. Due to its potential to influence conservative politics across the nation, Florida is one of the most important states to watch. So far, just over a month into 2024’s legislative session, the state is on the verge of rolling back child labor laws, erasing transgender people from public life, and removing oversight of law enforcement agencies.

Child labor

The Florida legislature is currently considering three bills that weaken many of the state’s child labor laws. The first, HB 49, would allow 16- and 17-year-olds to work more than 30 hours and six straight days when school is in session. The bill, written by the conservative advocacy group Foundation for Government Accountability, would also remove the requirement that minors receive a meal break for every 4 hours on the job. A state lobbying group for the hospitality industry, called the Florida Restaurant and Lodging Association, “strongly supports” the bill.

The second, SB 1596, would limit 16- and 17-year-olds to working no more than 30 hours a week when school is in session, but would allow them to work as late as midnight before a school day.

The third, SB 460, would allow 16- and 17-year-olds to work on roofs, scaffolding, and construction sites, provided that the teen obtained an OSHA certificate and is under direct supervision. The Associated Builders and Contractors and Florida Home Builders Association drafted the bill and sent it to Sen. Corey Simon (R-Tallahassee), who filed it for the 2024 session.

Anti-LGBTQ

HB 599: Expands “Don’t Say Gay'' policies to include government workplaces and nonprofits by prohibiting transgender and nonbinary employees from providing preferred personal pronouns to employers. It would also ban any tax-exempt nonprofit from requiring “any training, instruction, or other activity on sexual orientation, gender identity, or gender expression,” a prohibition that could potentially cause many Florida LGBTQ+ programs to shut down.

HB 1233: Deemed the “trans-erasure bill” by the ACLU, this legislation would require every person applying for a new or renewal driver’s license or identification card to sign an affidavit certifying that the sex listed on the application matches the sex on their original birth certificate. If the sex does not match, the bill requires the Department of Motor Vehicles to revoke the card/license. Additionally, HB 1233 mandates that insurance companies that cover gender-affirming care must also provide coverage for detransition treatment and conversion therapy.

• Note that this bill, if it becomes law, would assist the state in creating a list of transgender individuals by cross-referencing the affidavits with previous gender markers on driver’s licenses.
• Last month, the Florida Department of Highway Safety and Motor Vehicles issued a directive barring transgender residents from changing the listed gender on their driver’s licenses or state ID. The memo states that "misrepresenting one’s gender, understood as sex, on a driver's license constitutes fraud," and those with licenses that list a gender different than their birth sex could be subject to "criminal and civil penalties, including cancellation, suspension, or revocation of his or her driver license."

SB 1708: Prohibits any sheriff department's public safety programs from focusing on “a person’s…sexual orientation,” effectively banning all LGBTQ+ safety programs.

SB 1238: Would further criminalize drag shows and, potentially, books with LGBTQ+ material by classifying such content as “lascivious grooming” when seen or accessed by a person under 16 years old.

SB 1780: Declares that it is defamation to accuse a person of homophobia, transphobia, or discrimination based on sexual orientation/gender and limits the pathways available to prove the truth of such accusations. For example, the bill would allow a person to be sued for defamation if they accuse someone of transphobic discrimination when it is the latter person’s “religious expression or belief” that it is a sin to be LGBTQ+.

• If passed and signed into law, this legislation will likely be judged unconstitutional for punishing free speech. As The Guardian notes, SB 1780 and similar bills are created to “test the waters and see how far, legally, lawmakers can go until they are able to silence detractors.”

Abortion

HB 651: Changes the state’s civil liability law to allow the parents of an unborn child to file a wrongful death lawsuit. While the legislation specifies that a wrongful death action for the death of an unborn child cannot be brought against the mother, activists worry that it would allow a father to sue doctors for performing an abortion without his approval. Democrats tried to amend the bill last month to protect abortion providers, but the Republican majority voted it down.

Another change that [Laura] Goodhue [of the Florida Alliance of Planned Parenthood Affiliates] said could help address concerns would be to amend the text to only allow the pregnant person to file a wrongful death claim. “That eliminates the father who could be an abuser or a rapist or what have you from holding additional power over that person,” Goodhue said.

HB 1519: Removes the rape and incest exception for abortions performed within the time frame of the state’s 15-week ban and makes it illegal for someone outside of the state to mail abortion medication to a Florida resident.

• Meanwhile, the Florida effort to get an amendment on the November ballot protecting the right to pre-viability abortion obtained the required number of signatures last month. However, the state Supreme Court could still disqualify the amendment if the judges (all Republican) determine that the proposed amendment’s language is unclear.

Labor and public officials

HB 1471: Meant to fix the unintended effects of last year’s anti-union law, which required public sector unions to represent at least 60% of employees to maintain certification and prohibited public sector unions from deducting dues directly from paychecks. HB 1471 would expand the current law’s exemption for police, firefighter, and correctional officer unions to include paramedics, EMTs, and 911 dispatchers (often represented by the law enforcement and firefighter unions). It would also remove the requirement that all public sector unions submit annual financial reports audited by a certified pu...

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Texas border

The confrontation between Texas and the federal government intensified last week after the state defied a U.S. Supreme Court ruling allowing Border Patrol to cut razor wire along the Rio Grande.

The case

Texas Attorney General Ken Paxton sued the Biden administration last October, alleging that Border Patrol “illegally destroyed” state property when its agents cut through razor wire on the banks of the Rio Grande to “assist” migrants to “illegally cross” the border. Gov. Greg Abbott (R) then deployed the Texas National Guard to Shelby Park, a roughly 2.5-mile area along the Rio Grande in Eagle Pass, to block the federal government’s access.

The Biden administration ultimately appealed to the U.S. Supreme Court, arguing that Texas violated the Supremacy Clause of the U.S. Constitution by using “state tort law to restrain federal Border Patrol agents carrying out their federal duties.”

The Supreme Court ruled against Texas on its emergency docket on Monday, issuing a 5-4 decision allowing federal agents to access and cut the razor wire. Chief Justice John Roberts and Justice Amy Coney Barrett joined the Democratic appointees in the majority. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh would have allowed Texas to restrict federal access to the border.

Defiance

Instead of complying with the Supreme Court order and removing the blockade of Shelby Park, Gov. Abbott and the Texas Military Department (which is made up of various branches of the state National Guard) doubled down.

Air Force Maj. Gen. Thomas Suelzer was appointed by Abbott to oversee the Texas National Guard and Texas State Guard as the agency’s adjutant general. He told staff that he believes the ruling only permits Border Patrol to cut through obstacles to retrieve stranded migrants, the source said. Suelzer added that his troops will repair any obstacles destroyed by federal agents, and that his troops won’t allow the feds to set up migrant processing centers in areas they’ve blocked.

“The Texas Military Department continues to hold the line in Shelby Park to deter and prevent unlawful entry into the State of Texas,” the agency said in an unsigned statement Tuesday. “We remain resolute in our actions to secure our border, preserve the rule of law, and protect the sovereignty of our State.”

The next day, Gov. Abbott issued a statement invoking a Confederate-era theory used to support the secession of slave states from the union. “The federal government has broken the compact between the United States and the States,” Abbott wrote. The line is strikingly similar to the language used in the secession acts, which begin with a declaration that the southern states sought “to dissolve the union” that was “united under the compact” of the U.S. Constitution. By threatening to restrict slavery and violate the rights of southern states, the Confederates believed the federal government had broken the compact and, thus, allowed them to secede from the union.

Similarly, Abbott alleges that the Biden administration has failed to enforce Article IV, § 4, of the Constitution by “do[ing] nothing to stop” illegal immigration: “The Executive Branch of the United States has a constitutional duty to enforce federal laws protecting States, including immigration laws on the books right now. President Biden has refused to enforce those laws and has even violated them.” Therefore, Abbott went on to say, the state will continue “to secure the Texas border” from an “invasion” of immigrants. “Texas’s constitutional authority to defend and protect itself…is the supreme law of the land and supersedes any federal statutes to the contrary.”

• All this talk of an “invasion” probably feels familiar—it is a common rightwing trope that appears every election year. Remember the migrant caravans of 2018 (Fox News, 2020 (Fox News), and 2022 (Fox News)? Invoking the threat of a surge of immigrants, in addition to being dangerously racist, is also seen as so politically advantageous for Republicans that they are willing to kill the most far-right immigration bill in recent memory. Sen. James Lankford (R-OK), who is leading negotiations over the bill, expressed frustration on Fox News Sunday that many Republicans have told him they “don’t want a change in law because it’s a presidential election year.”
• Read more about the flawed legal reasoning behind Abbott’s declaration of an invasion.

And, like with the secession acts, Texas isn’t alone: More than two dozen other state governors have thrown their support behind Abbott’s defiance of both the Constitution and the Supreme Court. On Thursday, all but one Republican governor—Phil Scott (VT) —released a public statement echoing the same Confederate compact language used by Abbott. “President Biden and his Administration have left Americans and our country completely vulnerable to unprecedented illegal immigration pouring across the Southern border…Because the Biden Administration has abdicated its constitutional compact duties to the states, Texas has every legal justification to protect the sovereignty of our states and our nation,” the 25 governors wrote.

Far-right convoy

Anti-immigrant rhetoric used by Republican politicians like Abbott and Trump has already inspired violent incidents, including the 2019 El Paso Walmart shooting, and will likely bring about future dangerous situations. Take, for instance, the far-right armed convoy of “patriots” that is setting out to Texas this week to “take back” the border from federal authorities:

Vice: The organizers of the “Take Our Border Back” convoy have called themselves “God’s army” and say they’re on a mission to stand up against the “globalists” who they claim are conspiring to keep U.S. borders open and destroy the country.

“This is a biblical, monumental moment that’s been put together by God,” one convoy organizer said on a recent planning call. “We are besieged on all sides by dark forces of evil,” said another. “Blessed are the peacemakers, for they shall be called the sons of God. It is time for the remnant to rise.” (The remnant, from the Book of Revelation, are the ones who remain faithful to Jesus Christ in times of crisis).

Wired: A retired US Army lieutenant colonel is organizing an armed convoy next week to the Texas border to, he says, hunt down migrants crossing into the US from Mexico…Pete Chambers, the lieutenant colonel who says he was a Green Beret, appeared on far-right school-shooting conspiracist Alex Jones’ InfoWars show on Thursday to outline plans for the Take Back Our Border convoy, which has been primarily organized on Telegram.

“What gets us to the enemy quickly is find, fix, and finish,” Chambers told Jones. “That’s what we did in Syria when we took out ISIS really quick. Now we don’t have the authorities to finish, so what we can do is fix the location of where the bad guys are and pair up with law enforcement who are constitutionally sound.”

It is unclear how many members the convoy will ultimately amass, particularly amid paranoia over “federal entrapment” and “psyo...

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14th Amendment

The Supreme Court on Friday agreed to hear Donald Trump’s appeal of the Colorado decision banning him from appearing on the state’s ballot under Section 3 of the 14th Amendment (Keep Track’s previous post on the subject). Oral arguments are set for February 5, less than a month before many states hold their presidential primary.

The case will present questions that the U.S. Supreme Court has never had to grapple with before, ahead of an election of the utmost importance to the future of the nation. While it is fairly certain that the majority of justices will disapprove of insurrection, there are numerous ways the court could side with Trump without outright approving his inciting an insurrection. Any of the following questions could bring a swift end to Colorado’s case:

• Is the presidency an “office” and is the president an “officer” subject to Section 3, as Colorado ruled?
• Is Section 3 self-executing, as Colorado ruled, or must Congress first pass legislation allowing states to enforce it?
• Did Trump “engage in insurrection,” as Colorado ruled, or did the First Amendment protect his inciting statements?
• Does Section 3’s prohibition on an insurrectionist “holding” office also mean that an insurrectionist can’t run for office? (In this scenario, if an insurrectionist won the election, that person would be able to petition Congress to have the disqualification removed and then take office)
• And, finally, a perennial favorite: Are challenges to the constitutional qualifications of a candidate for President a “political question” not suited for the courts to decide?

Abortion

The U.S. Supreme Court on Friday agreed to take up a case against Idaho’s strict abortion ban, but allowed the state to continue to enforce its law while the legal battle is underway.

Background: In 2020, Idaho passed a trigger law to automatically ban all abortions if Roe v. Wade was ever overturned. As we now know, the U.S. Supreme Court did exactly that two years later, allowing Idaho’s ban to take effect. The law, called the Defense of Life Act, provides that “[e]very person who performs or attempts to perform an abortion…commits the crime of criminal abortion” and is subject to at least two years imprisonment. The only instance when a physician can legally perform an abortion is when the procedure is “necessary to prevent the death of the pregnant woman,” assuming the physician is willing to risk the chance that a jury would disagree with their “good faith medical judgment.” As we’ve seen in Texas, which has a similar provision in its abortion ban, this so-called exemption functions as window-dressing designed to make it easier for politicians to sell such a cruel law to their constituents.

State-level bans on abortion, like Idaho’s, conflict with a federal law called the Emergency Medical Treatment and Active Labor Act (EMTALA), which requires all hospitals that receive Medicare funding to stabilize patients with emergency medical conditions. EMTALA defines “emergency medical condition” as:

a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in—

(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or part.

Thus, EMTALA requires treatment to stabilize a patient even when that patient’s condition is not (yet) life-threatening and even when that treatment is an abortion in a state that bans the procedure.

Lawsuit: In August 2022, the Department of Justice sued Idaho, arguing that EMTALA preempts the state’s abortion ban under the Supremacy Clause of the Constitution. District Judge Lynn Winmill, a Clinton appointee, ruled in favor of the DOJ and issued a preliminary injunction barring enforcement of Idaho’s ban “to the extent it conflicts with EMTALA.”

Here, it is impossible to comply with both statutes. As already discussed, when pregnant women come to a Medicare-funded hospital with an emergency medical condition, EMTALA obligates the treating physician to provide stabilizing treatment, including abortion care. But regardless of the pregnant patient’s condition, Idaho statutory law makes that treatment a crime. And where federal law requires the provision of care and state law criminalizes that very care, it is impossible to comply with both laws. Full stop.

…the Court finds that allowing the Idaho law to go into effect would threaten severe, irreparable harm to pregnant patients in Idaho…Not only would Idaho Code § 18-622 prevent emergency care mandated by EMTALA, it would also discourage healthcare professionals from providing any abortions—even those that might ultimately be deemed to have been necessary to save the patient’s life

After some back-and-forth, the full Ninth Circuit ultimately upheld Judge Winmill’s injunction. Idaho appealed to the U.S. Supreme Court, asking it to stay the injunction. Contrary to the DOJ’s argument that EMTALA requires stabilizing treatment, including abortion, for pregnant people experiencing a medical emergency, Idaho argues that “EMTALA is silent on abortion and actually requires stabilizing treatment for the unborn children of pregnant women.”

Last week, the U.S. Supreme Court announced it would hear the case and—over the objections of the federal government—granted Idaho’s request for a stay, allowing the state to continue to deny pregnant people critical emergency medical treatment. This is the second major abortion case the Supreme Court will hear this term, the other dealing with access to the crucial medication abortion drug mifepristone.

Related: The Fifth Circuit also ruled against EMTALA in favor of Texas’s abortion ban last week. A three-judge panel, made up of a G.W. Bush appointee and two Trump appointees, reasoned that EMTALA does not conflict with state abortion bans because it “requires hospitals to stabilize both the pregnant woman and her unborn child,” thus precluding an abortion. As Ian Millhiser explains in Vox, this is a dishonest reading of EMTALA. Instead, what the law actually requires, is that a hospital offers the patient stabilizing treatment and allows them to make an informed decision:

EMTALA states that a hospital meets its obligations if it “offers” the patient stabilizing treatment and informs that patient “of the risks and benefits to the individual of such examination and treatment.” So, in a case where a patient is forced to choose between an abortion, which will stabilize their own condition, or a treatment that would save the fetus but leave the pregnant patient at risk, EMTALA requires a hospital to offer the patient either treatment and to explain the terrible choice facing them. And then it requires the hospital to honor the patient’s choice.

In other news: “Florida appeals court rejects minor’s attempt to get abortion without consent,” South Florida Sun Sentinel.

Redistricting and voting rights

New York

New York’s highest court ordered the state to draw new congressional districts ahead of the 2024 elections, giving Democrats a better chance to retake the U.S. House. The 4-3 majority based their decision on the way 2022’s map was created—not by the bipartisan commission, as required by law, but by a court-appointed special master.

Background: In 2014, New York voters approved a [constitutional amendment](https://ballotpedia.or...

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Colorado

The Colorado Supreme Court ruled last month that Donald Trump is disqualified from appearing on the state's ballot for his participation in an “insurrection.” The court—made up entirely of Democratic appointees—split 4-3 on the issue, with the dissenters focusing on whether Colorado law allows the state to resolve the issue in the first place.

A group of Colorado voters brought the lawsuit, arguing that Trump is ineligible to hold the office of president under Section 3 of the 14th Amendment.

• The relevant portion of the 14th Amendment reads: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 3, enacted after the Civil War to prohibit Confederates and their sympathizers from serving again in public office, does not define an “insurrection or rebellion” and does not provide a legal minimum for proving such an action. Further, the presidency is not explicitly mentioned as an office covered by the clause.

Four of Colorado’s Supreme Court justices explain in a lengthy 133-page analysis that the “most obvious and sensible reading of Section Three” holds that the president is an “officer of the United States” and thus covered by Section 3. “[T]he events of January 6,” the majority continued, “constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country…Under any viable definition, this constituted an insurrection.”

Finally, the court considered whether Trump “engaged in” the insurrection, as required by Section 3:

We conclude that the foregoing evidence, the great bulk of which was undisputed at trial, established that President Trump engaged in insurrection. President Trump’s direct and express efforts, over several months, exhorting his supporters to march to the Capitol to prevent what he falsely characterized as an alleged fraud on the people of this country were indisputably overt and voluntary. Moreover, the evidence amply showed that President Trump undertook all these actions to aid and further a common unlawful purpose that he himself conceived and set in motion: prevent Congress from certifying the 2020 presidential election and stop the peaceful transfer of power…

Moreover, the record amply demonstrates that President Trump fully intended to—and did—aid or further the insurrectionists’ common unlawful purpose of preventing the peaceful transfer of power in this country. He exhorted them to fight to prevent the certification of the 2020 presidential election. He personally took action to try to stop the certification. And for many hours, he and his supporters succeeded in halting that process.

The three dissenters, on the other hand, based their decisions on procedural and legal deficiencies of the state’s process for disqualifying a candidate.

Chief Justice Boatright wrote that the “action to disqualify former President Donald J. Trump under Section Three of the Fourteenth Amendment presents uniquely complex questions that exceed the adjudicative competence” of Colorado’s election code, which requires an expedited five-day trial to determine qualification:

Section 1-1-113 provides for the resolution of potential election code violations in a timely manner…Although a claim that a candidate is not thirty-five years old may be easier to resolve than a claim that a candidate is not a natural born citizen, these presidential qualifications are characteristically objective, discernible facts. Age, time previously served as president, and place of birth all parallel core qualification issues under Colorado’s election code. Conversely, all these questions pale in comparison to the complexity of an action to disqualify a candidate for engaging in insurrection…Unlike qualifications such as age and place of birth, an application of Section Three requires courts to define complex terms, determine legislative intent from over 150 years ago, and make factual findings foreign to our election code…

Dismissal is particularly appropriate here because the Electors brought their challenge without a determination from a proceeding (e.g., a prosecution for an insurrection-related offense) with more rigorous procedures to ensure adequate due process. Instead, the Electors relied on section 1-1-113 and its “breakneck pace” to declare President Trump a disqualified insurrectionist.

Justice Carlos Samour’s dissent explains that his objections rest with the idea that Colorado can enforce Section 3 without a prior adjudicative proceeding from either the federal courts (like a conviction) or Congress (legislation).

My colleagues in the majority turn Section Three on its head and hold that it licenses states to supersede the federal government. Respectfully, they have it backwards. Because no federal legislation currently exists to power Section Three and propel it into action, because President Trump has not been charged under section 2383, and because there is absolutely no authority permitting Colorado state courts to use Colorado’s Election Code as an engine to provide the necessary thrust to effectuate Section Three, I respectfully dissent.

As expected, the Colorado Republican Party petitioned the U.S. Supreme Court to hear the case last week. The Colorado ruling will thus remain on hold for the foreseeable future, potentially resulting in Trump remaining on the ballot for the state’s primary on March 5 (pending further action by the Supreme Court).

Maine

Unlike in Colorado, Maine voters can directly challenge a candidate’s qualification before the Secretary of State, who is empowered by state law to keep unqualified candidates off the primary election ballot.

A group of voters brought these challenges before Maine’s Secretary of State Shenna Bellows (D) seeking to have Donald Trump barred from the state’s primary ballot for violating Section 3 of the Fourteenth Amendment. Bellows concluded that Trump’s primary petition is invalid because he engaged in insurrection, thus making him unqualified to hold the office of the President:

I conclude… that the record establishes that Mr. Trump, over the course of several months and culminating on January 6, 2021, used a false narrative of election fraud to inflame his supporters and direct them to the Capitol to prevent certification of the 2020 election and the peaceful transfer of power. I likewise conclude that Mr. Trump was aware of the likelihood for violence and at least initially supported its use given he both encouraged it with incendiary rhetoric and took no timely action to stop it…

I do not reach this conclusion lightly. Democracy is sacred… I am mindful that no Secretary of State has ever deprived a presidential candidate of ballot access based on Section Three of the Fourteenth Amendment. I am also mindful, however, that no presidential candidate has ever before engaged in insurrection. The oath I swore to uphold the Constitution comes first above all, and my duty under Maine’s election laws, when presented with a Section 336 challenge, is to ensure that candidates who appear on the primary ballot are qualified for the office they seek.

The events of January 6, 2021 were unprecedented and tragic. They were an attack not only upon the Capitol and government officials, but also an attack on the rule of law. The evidence here demonstrates that they occurred at the behest of, and with the knowledge and support of, the outgoing President. The U.S. Constitution does not tolerate an assault on the foundations of our government, and Section 336 requires me to act ...

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The original was posted on /r/keep_track by /u/rusticgorilla on 2023-12-20 18:59:38.

If you are in the position to support my work, I have a patreon, venmo, and a paypal set up. Just three dollars a month makes a huge difference! No pressure though, I will keep posting these pieces publicly no matter what - paywalls suck.

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Kate Cox

A Texas mother sued the state seeking an abortion after finding out that her pregnancy had no chance of survival. State officials fought against her, forcing her to flee the state to obtain an abortion.

• Kate Cox is a 31-year-old mother of two who lives in Dallas, Texas. Last month, she found out her third pregnancy had Trisomy 18—a condition causing multiple structural abnormalities—and had no chance of survival. Because she lives in Texas, a state that bans abortion unless necessary to save the mother’s life or prevent “substantial impairment of a major bodily function,” Cox filed a lawsuit asking for the right to receive an abortion without the threat of criminal prosecution.

  • “Because Ms. Cox has had two prior cesarean surgeries,” the lawsuit stated, “continuing the pregnancy puts her at high risk for severe complications threatening her life and future fertility, including uterine rupture and hysterectomy…because of Texas’s abortion bans, Ms. Cox’s physicians have informed her that their ‘hands are tied’ and she will have to wait until her baby dies inside her or carry the pregnancy to term, at which point she will be forced to have a third C-section, only to watch her baby suffer until death.”

• Judge Maya Guerra Gamble (Texas 459th District Court) ruled in favor of Cox, saying from the bench that “[t]he idea that Ms. Cox wants so desperately to be a parent and this law may have her lose that ability is shocking and would be a genuine miscarriage of justice.” She issued a temporary restraining order against Texas officials, including Attorney General Ken Paxton, to prevent them from enforcing the abortion ban and its penalties against Cox, her husband, and her doctors.

• Within hours, Attorney General Ken Paxton asked the Texas Supreme Court to block the order immediately and stop Cox from having an abortion. “Because Plaintiffs evidently believe (incorrectly) that the TRO immunizes them from civil or criminal enforcement actions,” the writ of mandamus states, “each hour it remains in place is an hour that Plaintiffs believe themselves free to perform and procure an elective abortion. Nothing can restore the unborn child’s life that will be lost as a result.” Paxton also sent a letter threatening to prosecute any doctor who gave Cox an abortion, despite the court order.

• The Texas Supreme Court temporarily halted Judge Gamble’s ruling the next day—a week after Cox received confirmation that her fetus had a lethal condition—saying that it needed more time to weigh in on the matter.

• Three days later, without any word from the Texas Supreme Court, Cox was forced to leave the state to obtain an abortion and end any further risk to her health. “This is why judges and politicians should not be making healthcare decisions for pregnant people—they are not doctors,” the Center for Reproductive Rights said in a statement. “This is the result of the Supreme Court’s reversal of Roe v. Wade: women are forced to beg for urgent healthcare in court.”

• The Texas Supreme Court ultimately ruled against Cox in a unanimous 9-0 decision holding that Cox’s physician did not use the correct phrasing to gain an exception to the state’s abortion bans. “Dr. Karsan did not assert…that in Dr. Karsan’s reasonable medical judgment, an abortion is necessary because Ms. Cox has the type of condition the exception requires,” the court wrote (emphasis added). Instead, Dr. Karsan said that in her “good faith belief and medical recommendation” Cox “has a life-threatening physical condition aggravated by, caused by, or arising from her current pregnancy that places her at risk of death or poses a serious risk of substantial impairment of her reproductive functions” if an abortion is not performed (emphasis added). Which is the exact same thing to everyone who doesn’t have a political agenda to stop all abortions, even at the risk of the mother’s life.

Jane Doe

The same week, a Kentucky woman filed a lawsuit challenging two of the state’s abortion bans—one that prohibits abortion at six weeks of pregnancy and another that forbids all abortions, at any time, except “to prevent the death or substantial risk of death due to a physical condition, or to prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman.”

• The woman, going by the pseudonym Jane Doe to protect her identity, was eight weeks pregnant when she filed a class action lawsuit seeking the right to have an abortion—not just for herself, but for all other women in the state. The lawsuit relies in part on the argument that the two abortion bans violate the Kentucky Constitution’s right to privacy and right to self-determination. “Whether to take on the health risks and responsibilities of pregnancy and parenting is a personal and consequential decision that must be left to the individual to determine for herself without governmental interference,” the lawsuit states. “Pregnant Kentuckians have the right to determine their own futures and make private decisions about their lives and relationships. Access to safe and legal abortion is essential to effectuating those rights.”
• Five days later, Doe’s lawyers informed the court that she learned her embryo no longer has cardiac activity. Kentucky’s abortion bans do not contain exceptions for fatal fetal anomalies. According to Rolling Stone, she reportedly intends to continue the lawsuit.

Brittany Watts

While Cox was fortunate enough to have the funds and forewarning to obtain an abortion out of state, other women are not so lucky. 33-year-old Brittany Watts, a Black woman in Ohio, was 22 weeks pregnant when she suffered a miscarriage at home. She is now charged with abuse of a corpse and faces up to a year in prison.

• According to the Washington Post, Watts first visited the hospital on September 19 experiencing “intense” pain and passing large clots of blood. She was diagnosed with preterm premature rupture of membrane and had no detectable amniotic fluid. Doctors told her the pregnancy was not viable and recommended inducing labor to save her life. Watts left the hospital against medical advice to “better process what was happening to her at home.”
• Watts returned to the hospital the next day expecting to be induced to deliver her preterm pregnancy. However, she was left sitting for eight hours awaiting care while doctors debated the legality of the procedure. “It was the fear of, is this going to constitute an abortion and are we able to do that,” Watts’ lawyer said. She ultimately left again without receiving care.
• On September 22, Watts awoke in pain and delivered a stillborn fetus over the toilet in her home. She ended up back at the hospital, her fourth visit that week, telling a nurse what had happened. The nurse called law enforcement to investigate the possibility that Watts had delivered a live baby and abandoned it. Instead, what police and later a coroner found was that the fetus had died before passing through the birth canal.
• Despite all evidence pointing to the fact that Watts miscarried, Warren County prosecutors charged her with abuse of a corpse for failing to fish the fetal remains from the toilet. “The issue isn’t how the child died, when the child died — it’s the fact that the baby was put into a toilet, large enough to clog up a toilet, left in that toilet, and she went on [with] her day,” Warren Assistant Prosecutor Lewis Guarnieri said. The law, which states that a “human corpse” shall not be treated “in a way that would outrage reasonable community sensibilities,” was originally written to criminalize grave robbing.
• More and more often in a post-Roe world, pregnant women like Watts, who was not even trying to get an abortion, have found themselves charged with “cri...

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Hello /r/keep_track readers and welcome to a new post format! Instead of a semi-monthly deep dive into a single topic, we’re going to try out a weekly round-up style post that covers multiple areas of interest with a little more brevity for each. That doesn't mean long, detailed posts will end but I'm hoping more frequent posts with more topics will better serve the interests of “keeping track.”

If you are in the position to support my work, I have a patreon, venmo, and a paypal set up. Just three dollars a month makes a huge difference! No pressure though, I will keep posting these pieces publicly no matter what - paywalls suck.

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Voting Rights Act

An 8th Circuit Court of Appeals panel ruled 2-1 last month that there is no private right of action under Section 2 of the Voting Rights Act (VRA). Practically, the ruling means that only the federal government—not private citizens or civil rights groups—can file lawsuits challenging discriminatory redistricting maps and voting laws.

• The case, Arkansas State Conference of the NAACP v. Arkansas Board of Apportionment, was brought by civil rights groups challenging Arkansas’ 2020 state House map that allegedly dilutes Black voting strength in violation of Section 2 of the VRA. “In the last decade, the Black population in Arkansas has grown,” the ACLU argued, “yet the Board of Apportionment failed to craft district lines that would allow these new voters to elect their candidates of choice…The Board of Apportionment should have drawn at least four additional Black-majority districts.”
• U.S. District Court Judge Lee Rudofsky, a Trump appointee, dismissed the case last year after concluding—despite decades of case precedent—that “it would be inappropriate to imply a private right of action to enforce § 2 of the Voting Rights Act.”
• The plaintiffs appealed to the 8th Circuit. Judge David Stras, another Trump appointee, joined by George W. Bush appointee Raymond Gruender, upheld Rudofsky’s dismissal. “For much of the last half-century, courts have assumed that § 2 is privately enforceable,” Stras wrote. “A deeper look has revealed that this assumption rests on flimsy footing.” He acknowledges that even the current conservative Supreme Court upheld Section 2 of the Voting Rights Act in Allen v. Milligan, which was brought by private plaintiffs to protect Black voters. Yet, in what election law expert Rick Hasan calls a “wooden, textualist analysis,” the majority reaches the opposite conclusion of every other circuit court in the nation (including the hyper-conservative 5th Circuit, which upheld a private right to action days earlier).
• Chief Judge Lavenski Smith, a George W. Bush appointee and the only person of color on the 8th Circuit, dissented: “[The Supreme Court] has repeatedly considered such cases, held that private rights of action exist under other sections of the VRA, and concluded in other VRA cases that a private right of action exists under § 2. Until the Court rules or Congress amends the statute, I would follow existing precedent that permits citizens to seek a judicial remedy. Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government’s agents for protection. Resolution of whether § 2 affords private plaintiffs the ability to challenge state action is best left to the Supreme Court in the first instance.”
• As a result, there is no right for private citizens to sue to enforce Section 2 of the VRA in the 8th Circuit’s jurisdiction, which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. Louisiana, currently fighting to delay a court order to draw a fair congressional map, hinted that it will ask the 5th Circuit to likewise limit claims under the VRA. Given the split between the circuits, the case will likely reach the U.S. Supreme Court.

The 5th Circuit ruled last week that Galveston County, Texas, does not have to implement fair districts ahead of the 2024 election—and called into question whether multiple minority groups can form a voting coalition. Civil rights groups brought the federal lawsuit against the county for diluting Black and Latino voting power by eliminating its sole, longstanding majority-minority Commissioners Court precinct.

• Trump-appointed District Judge Jeffrey Brown ruled in favor of the plaintiffs, finding that “[t]he enacted map denies Black and Latino voters the equal opportunity to participate in the political process and the opportunity to elect a representative of their choice to the commissioners court.”
• The county appealed to the 5th Circuit, which decided 11-6 last week to stay Judge Brown’s ruling (all six Trump appointees voted in favor of a stay; all Democratic appointees voted in opposition to a stay). The majority based its decision on two problematic premises: [1] that it is too close to the election to change maps (the Purcell Principle), and [2] that two or more separately protected minorities (e.g. Black and Hispanic voters) cannot submit a joint claim under Section 2 of the VRA.
• Judge Stephen Higginson (an Obama appointee), writing for the dissent, pointed out that the only reason the case may not be resolved in time for the 2024 election is the majority’s own choice to issue a stay and schedule arguments far into the future. “[O]ur court’s stay,” Higgens writes, “compounded by two interrelated decisions we also take—revisiting settled, thirty-five year old precedent yet calendaring that re-argument six months in the future—creates the very problem the Supreme Court in Purcell told courts to avoid.” Furthermore, “it is settled law in [the 5th] circuit that nothing in the history or text of the Voting Rights Act prevents members of multiple-minority groups from filing a vote-dilution claim together,” the dissent continues.
• On Friday, the plaintiffs filed an emergency request in the U.S. Supreme Court asking it to lift the 5th Circuit’s pause of the order requiring Galveston County to adopt new districts.

Congress

Meanwhile, Congress is struggling to reach a deal on aid for Ukraine in exchange for Republican demands related to immigration and border security. Talks reportedly broke down earlier this month when Democrats balked at the GOP’s insistence on policies that would “essentially close the border” and eliminate asylum for people with meritorious claims.

• “Right now, it seems pretty clear that we’re making pretty big compromises and concessions and Republicans aren’t willing to meet us anywhere close to the middle,” said Sen. Chris Murphy (D-CT). GOP leaders seemed to confirm Murphy's characterization last week, with Sen. John Cornyn (R-TX) saying it is “not a traditional negotiation, where we expect to come up with a bipartisan compromise on the border. This is a price that has to be paid in order to get the supplemental.”

Other reporting indicates that the biggest roadblock is a Republican demand to “provide the president new authority to shut down the asylum system at will,” a proposal that would give a future Republican president (possibly Trump himself) the power to control various avenues for immigration and refuge with no oversight.

Among other fears, Senate Democratic negotiators worried that those powers would allow for the revival of Title 42…About 2.8 million people were expelled under the policy, which expired earlier this year after first being implemented under former President Trump. Trump is reportedly planning to reinstate a version of Title 42 to shut off the processing of asylum claims at the US-Mexico border as part of a second t...

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Housekeeping:

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Project 2025 is a far-right plan to transition the U.S. federal government into an authoritarian dictatorship should a Republican win next year’s election. The project, led by the Heritage Foundation, was crafted with the implicit expectation that Donald Trump will be the GOP nominee.

Key officials in Trump’s former administration are also involved in Project 2025: Ken Cuccinelli, former Deputy Secretary of Homeland Security; Rick Dearborne, Trump’s former Deputy Chief of Staff; Christopher Miller, former acting Secretary of Defense; Peter Navarro, former Assistant to the President and former Director of Trade and Manufacturing Policy; and Russ Vought, former Director of the Office of Management and Budget.

Unitary executive theory

The broad strokes of Project 2025 are undergirded by the unitary executive theory, which holds that the President of the United States possesses the power to control the entire federal executive branch—no other branch can act as a check or balance on executive power. Lawyers in the Reagan administration advanced the theory in order to centralize control over the executive branch and refuse to comply with congressional oversight.

Reagan’s notion was that only a strong president would be able to dramatically limit big government. Perhaps drawing on a model for unitary corporate leadership in which the CEO also serves as chairman of the board, the so-called unitary executive promised undivided presidential control of the executive branch and its agencies, expanded unilateral powers and avowedly adversarial relations with Congress.

In the years that followed, Heritage Foundation and Federalist Society conservatives worked to provide a constitutional cover for this theory, producing thousands of pages in the 1990s claiming -- often erroneously and misleadingly -- that the framers themselves had intended this model for the office of the presidency.

George H.W. Bush and Bill Clinton continued Reagan’s use of unitary executive theory relatively unchanged. George W. Bush, however, greatly expanded the concept, arguing that the president had the authority to spy on Americans without a warrant, detain suspected terrorists without charge or trial, and even torture prisoners.

From holding detainees as “enemy combatants” with no legal rights in an extraterritorial prison camp subject to trial only by military tribunal to a massive new spying program, Bush robustly asserted executive power as commander-in-chief to do what he saw as necessary to protect the American people (Perine 2006; Howell 2005, 418). In fact, John Yoo argued that no other branch had the authority to review the president’s decisions; in a speech, he said, “Congress cannot use…legislative powers to change the Constitution’s allocation of powers between the president and Congress in the war power,” (Perine 2006). This notion – which underlay some of Bush’s most aggressive expansions of power – has vast consequences…the Bush administration, fueled by trailblazing lawyers and hawkish neoconservatives (e.g., Secretary of Defense Donald Rumsfeld and Vice President Dick Cheney), waged a multi-theater war on terror that involved the unprecedented extension of powers of the unitary executive (Warshaw 2009).

Barack Obama did not fully embrace Bush’s incredible expansion of presidential power, though some would argue that he nevertheless relied on its precedents to unilaterally authorize military action in Libya.

Then came Donald Trump, who attempted to demolish every check and balance on the executive office imaginable. He claimed the authority to fire independent agency chiefs (and followed through, in FBI Director James Comey’s case), actually fired independent inspector generals, argued the president is immune from criminal investigation and prosecution, threatened to sic the military on racial justice protesters, bypassed the congressional appropriations process to use military funds to build a wall on the southern border, and tried to illegally stay in power by overturning the 2020 election—among a slew of other unconstitutional actions, statements ("I have an Article 2, where I have the right to do whatever I want as president”), and threats. Some of Trump’s more dangerous ideas, like ordering the Pentagon to seize voting machines, were only prevented from becoming reality through the intervention of more rational federal employees and civil servants. As we’ll see, Project 2025 ensures these barriers to autocracy will not be in place for a second Trump term.

Install loyalists

Project 2025 hinges on filling the administration with loyalists who will not oppose Trump’s burgeoning autocracy. To this end, Trump’s former personnel director, John McEntee, is working with the Heritage Foundation to create a personnel database of far-right “purists” ready to join the administration on day one.

We're told immense, intense attention will be given to the social-media histories of anyone being considered for top jobs. Those queasy about testing the limits of Trump's power will get flagged and rejected. The massive headhunting quest aims to recruit 20,000 people to serve in the next administration, as a down payment on 4,000 presidential appointments + potential replacements for as many as 50,000 federal workers who are "policy-adjacent," as Trumpers put it.

In order to install tens of thousands of loyalist federal workers, Trump would first have to get rid of tens of thousands of career civil servants. According to Axios, the former president plans to reimpose his Schedule F executive order to remove federal employees’ protections and more easily purge them from government.

“I think Schedule F is basically doctrine now on the right,” said Russ Vought, an architect of Schedule F when he was Trump’s director of the Office of Management and Budget [who now works on Project 2025]. “So I think one that sits in that position does not have an ability to not do this, not unlike any other governing philosophy” widely embraced by conservatives.

“Schedule F is getting to the point where I cannot see anyone who runs on the Republican side who doesn’t put this into play,” Vought, the president of the Center for Renewing America, a right-wing think tank, continued.

As for presidential appointees, there is some speculation that Trump's allies in Congress are holding open positions to make it easier for Trump to fill them in should he win the election. Nowhere is this more stark than Sen. Tommy Tuberville’s (R-AL) [hold](https://thehill.com/...

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The original was posted on /r/keep_track by /u/rusticgorilla on 2023-11-13 12:26:27.

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Domestic terrorism motivated by right-wing ideology has been on the rise since 2015, coinciding with the candidacy of Donald Trump and increasingly inflammatory Republican rhetoric. The trend arguably peaked in January 2021 with the attack on the Capitol but the threat has not abated. With Trump running for president again and the GOP becoming more extreme than ever before, Americans need to be aware of the danger right-wing terrorism poses to citizens, democracy, and the justice system.

Below is a collection of recent right-wing threats. It is not comprehensive.

Threats to government officials

An armed man was arrested after twice going to the Wisconsin Capitol demanding to see Gov. Tony Evers (D). Joshua Pleasnick, 43, showed up at the security desk outside of the governor’s Capitol office with a holstered handgun and a leashed dog, demanding to speak to the governor. He was arrested and posted $500 bail. He then returned to the Capitol with a loaded AK-47 that night. Officers took Pleasnick into protective custody and hospitalized due to concerning statements he made to officers:

"While being interviewed Pleasnick said he would continue coming to the Capitol until he spoke to the Governor about domestic abuse towards men," a report obtained by the Milwaukee Journal Sentinel said. "Pleasnick stated he did not own a vehicle and it is likely he has access to a large amount of weapons and is comfortable using them."

A January 6th insurrectionist was arrested outside of former President Obama’s house in July. Taylor Taranto, 37, of Washington state, showed up outside the Obama home with two guns and hundreds of rounds of ammunition. According to court documents, Taranto got the address from former President Trump’s Truth Social post. He was allegedly looking for “entrance points” and tunnels between Tony Podesta’s house and the Obama’s.

Taranto was charged with two felony charges of carrying a pistol without a license and possession of a large-capacity ammunition feeding device, as well as four misdemeanors related to the January 6th insurrection.

An armed Utah man was killed at his home by FBI agents attempting to serve an arrest warrant for making threats against President Biden. Craig Deleeuw Robertson, 75, made numerous online posts featuring firearms accompanied by messages like “death to Joe Biden” and “The time is right for a presidential assassination or two. First Joe then Kamala!!!” in 2022. The FBI got an arrest warrant after Robertson posted, “I hear Biden is coming to Utah. Digging out my old ghillie suit and cleaning the dust off the M24 sniper rifle. Welcome, Buffoon-in-chief,” just three days before Biden was set to arrive in Salt Lake City on August 9, 2023.

According to an eyewitness, FBI agents attempted to arrest Robertson but he refused to comply. Agents claim that after they breached the house, Robertson allegedly pointed a .357 at law enforcement, and they opened fire, killing him.

• Robertson also threatened New York County District Attorney Alvin Bragg, saying “I want to stand over Bragg and put a nice hole in his forehead with my 9mm and watch him twitch as a drop of blood oozes from the hole as his life ebbs away to hell!!”; New York Attorney General Letitia James, saying, “Letitia James a sniper’s bullet does not recognize your qualified immunity b/tch”; U.S. Attorney General Merrick Garland, posting “Merrick Garland eradication tool” with a picture of a firearm; and California Governor Gavin Newsom, saying, “Another patriotic dream…I’m standing over Gavin Newsom with a wound above his brow and my suppressed S&W M&P 9mm still smoking.”

A 19-year-old man repeatedly rammed a U-Haul truck into a barrier that protects the White House in May in an effort to “overthrow the government and replace it with an authoritarian regime fueled by Nazi ideology.” Sai Varshith Kandula, of Missouri, was originally arrested for assault with a dangerous weapon, reckless operation of a motor vehicle, destruction of federal property, and threatening to kill, kidnap, or inflict harm on the president. However, prosecutors filed only one charge, destruction of U.S. property in excess of $1,000, to hold him in jail.

A magistrate judge denied Kandula bond, saying he presented a threat to the community:

Kandula told investigators his plan was to “get to the White House, seize power and be put in charge of the nation.” He told them he would “kill the president if that’s what I have to do and would hurt anyone that would stand in my way.”

Kandula told investigators he purchased the Nazi flag online because the “Nazi’s have a great history.” Kandula told them he looked up to Adolf Hitler and called him a “strong leader” and said he admired the Nazis’ authoritarian nature and support of eugenics.

Kandula also had a green book that detailed plans to harm family members and others, and contained the speech he was planning to give, according to court records. He said he had been working on his plan for six months.

Threats to the judiciary

A Texas woman was charged with threatening to kill the federal judge overseeing Trump’s trial for attempting to overturn the 2020 election. Abigail Jo Shry, 43, left a threatening voicemail for Judge Tanya Chutkan on August 5, calling her a “stupid slave n—” and threatening to kill her and her family if “Trump doesn’t get elected in 2024.”

The caller’s introduction stated, “Hey you stupid slave nigger,” after which the caller threatened to kill anyone who went after former President Trump, including a direct threat to kill Congresswoman Sheila Jackson Lee, all Democrats in Washington D.C. and all people in the LGBTQ community. The caller further stated, “You are in our sights, we want to kill you,” and “We want to kill Sheila Jackson Lee.” “If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly, bitch.” The caller continued with their threats, stating, “You will be targeted personally, publicly, your family, all of it.”

Shry, who had been charged with different instances of criminal mischief and misdemeanor threats in the past year, was ordered detained until her next hearing.

Trump has publicly attacked Chutkan, calling her “highly partisan” and “very biased and unfair” for past comments assigning him the blame for the January 6 insurrection.

Chutkan isn’t the only judge facing death threats for overseeing a case involving Donald Trump: Judge Bruce Reinhart, a magistrate judge for the Southern District of Florida, has been a target on far-right social media platforms for signing off on the warrant to search Mar-a-Lago.

Multiple members of these toxic online communities are even posting what appears to be Judge Bruce Reinhart’s home address, phone numbers, and names of his family members alongside threats of extreme violence.

“This is the piece of shit judge who approved FBI’s raid on Mar-a-Lago,” a user wrote on the pro-Trump message board formerly known as TheDonald. “I see a rope around his neck.” [...]

In another post on the same message board, one user commented, “Let's find out if he has children....where they go ...

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The original was posted on /r/keep_track by /u/rusticgorilla on 2023-11-06 18:14:59.

Housekeeping:

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North Carolina Republicans passed new, gerrymandered maps last month to ensure their party holds nearly all congressional seats and a veto-proof legislative majority.

Background

At a statewide level, North Carolina is one of the most purple in the nation. The 2020 election was decided by less than 100,000 votes, with Trump winning by just one percentage point. Although Republicans control both the Assembly and Senate, the state has had a Democratic governor and a Democratic Attorney General since 2017. Gov. Roy Cooper (D), in fact, won his last election by over four percentage points.

Given that (active) state voters are split approximately 50/50 between the two major parties, it would follow that the state’s districts should provide the opportunity to elect 50% Republicans and 50% Democrats. Unfortunately, the GOP legislators in control of redistricting have shown time and time again that they would rather create a one-party state than have fair elections.

After the 2020 census, North Carolina Republicans drew congressional maps that would have resulted in 10 solidly Republican districts, three solidly Democratic districts, and one competitive district. Voting rights groups sued, and the state Supreme Court ruled 4-3 in their favor, finding that the maps violated citizens’ rights to free elections, freedom of speech, and equal protections of citizens.

“When, on the basis of partisanship, the general assembly enacts a districting plan that diminishes or dilutes a voter’s opportunity to aggregate with likeminded voters to elect a governing majority ... the general assembly unconstitutionally infringes upon that voter’s fundamental right to vote,” read the order of the court’s majority, signed by associate Justice Robin Hudson.

The courts approved new maps in February 2022, including a congressional map drawn by bipartisan experts that resulted in seven Democratic and seven Republican districts.

Then came the 2022 election. The congressional map worked as intended, allowing voters to elect an equal number of Democrats and Republicans to the U.S. Congress. However, two Democratic Supreme Court justices lost re-election, flipping the court to a 5-2 Republican majority. Republican legislators petitioned the Supreme Court to redecide the earlier redistricting case as soon as the new justices were seated — and, as they hoped, the GOP majority ruled in their favor:

“There is no judicially manageable standard by which to adjudicate partisan gerrymandering claims. Courts are not intended to meddle in policy matters,” Chief Justice Paul Newby wrote in his 144-page opinion for the court’s majority…

“For a brief window in time, the power of deciding who is elected to office was given to the people, as required by the state constitution,” Justice Anita Earls wrote in her 72-page dissent, joined by Justice Michael Morgan. The two, who joined the court’s ruling last year striking down the map for being too partisan, are the last remaining Democratic jurists on the court.

“Today, the majority strips the people of this right; it tells North Carolinians that the state constitution and the courts cannot protect their basic human right to self-governance and self-determination,” Earls added, declaring that her Republican colleagues’ “efforts to downplay the practice do not erase its consequences and the public will not be gaslighted.”

New maps

Without the court-imposed restraints of fairness and democracy dictating what lines they could draw, North Carolina Republicans passed new maps last month that—if allowed to stand—will ensure their party never loses power.

The congressional map will give Republicans as many as 11 out of 14 seats while limiting Democrats to at most four of 14. In other words, Democrats could net the majority of the statewide vote but win less than 30% of congressional seats. Republicans, meanwhile, will always win at least 70% of the congressional seats no matter how poorly they perform statewide.

According to Duke math professor Jonathan Mattingly, the new maps “essentially negate the need to have elections for the U.S. House of Representatives.”

No matter how well Democrats perform, simulation after simulation shows almost no change in the makeup of the congressional delegation, reliably electing 10 or 11 Republicans compared to the current 7-7 party split.

Compare the court-approved 2022 congressional map (shaded by Biden’s 2020 margins) with the new congressional map. Democratic voters are packed into three urban districts (2nd, 4th, and 12th); all but one of the other districts that trended Democratic in the 2022 map are cracked—split up and combined with enough Republican-voting areas to dilute Democratic votes. As a result, the districts of Democratic Reps. Kathy Manning (6th), Jeff Jackson (14th), and Wiley Nickel (13th) no longer exist. Rep. Don Davis’s (D) 1st district is kept intact but drawn to include more white, Republican voters, making it harder to win.

In total, U.S. House Republicans are expected to gain at least 3 more congressional seats from North Carolina alone in the 2024 election.

The legislative maps adopted last month are no better, gerrymandering the GOP into a permanent supermajority in both the state Senate and Assembly. An analysis by Duke University found that in both chambers, “the proposed plans are even more extreme than the originally enacted 2021 maps” ruled unconstitutional by the then-Democratic state Supreme Court:

Both the Senate and House maps under-elect Democrats as one moves to more balanced elections with Republican statewide vote fractions near 50%. This has important implications for the preservation of the super-majority in the chamber. Under the newly proposed Senate maps, the Republicans may reasonably expect to obtain a super majority, even when the statewide Democratic vote share is over 50%...

...the newly proposed [Assembly] map preserves the super-majority. In the more democratic-leaning elections, the ensemble and the remedial map from 2022 would typically give control of the chamber to the Democrats but the newly proposed map leaves the Republicans with a sizable majority.

What can be done

There will almost certainly be legal challenges to the new maps. However, the state Supreme Court is unlikely to rule against Republican legislators because the new conservative majority greenlit their effort to replace 2022’s fair maps in the first place.

Plaintiffs could also challenge the maps in the federal courts, but are limited by the 2019 U.S. Supreme Court ruling that partisan gerrymandering claims present political questions beyond the reach of the federal courts. That means that parties are barred from arguing that Republicans drew the new districts to give themselves an unfair advantage over Democrats. Instead, plaintiffs must make the case that the legislature either used race as the predominant factor to determine district lines (violating the U.S. Constitution) or diluted the voting power of minority groups through “cracking” and “packing” districts (violating the Voting Rights Act).

Northeastern North Carolina, from Greenville to the Virginia border, has the highest percentage of Black residents in the state. It is currently represented by Rep. Don Davis, a Black Democrat, as part of the 1st District. The new map redraws the 1st to include more white, rural voters—making it more difficult for Black voters to elect a candidate of their choice.

The Piedmont Triad, made up of Greensboro, Winston-Salem, and High Point, is another area that could be used to demonstrate racial gerrymandering. Whereas the 2022 map kept the region intact as the 6th District, the new map divides Black communities between three different distric...

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Rep. Mike Johnson (R), representing Louisiana’s 4th District (Shreveport-Bossier City), was unanimously elected Speaker of the House by all 220 Republicans present yesterday. He is a member of the far-right Freedom Caucus and sits on the House Judiciary Committee and Armed Services Committee.

DEMOCRACY

If you need to know one thing about Johnson, it is that he played a central role in crafting the legal reasoning to overturn the 2020 election. As a former constitutional lawyer, Johnson was able to provide legitimate-sounding talking points for Republicans to support Trump, hiding the fact that what they were actually doing was undermining democracy and igniting an insurrection.

NYT: In December 2020, Mr. Johnson collected signatures for a legal brief in support of a Texas lawsuit, rooted in baseless claims of widespread election irregularities, that tried to throw out the results in four battleground states won by Joseph R. Biden Jr. The Supreme Court ultimately rejected the suit, but not before Mr. Johnson persuaded more than 60 percent of House Republicans to sign onto the effort.

NYT: Two-thirds of [House Republicans] — 139 in all — had been voting on Jan. 6, 2021, to dispute the Electoral College count that would seal Donald J. Trump’s defeat just as rioters determined to keep the president in power stormed the chamber… In formal statements justifying their votes, about three-quarters relied on the arguments of a low-profile Louisiana congressman, Representative Mike Johnson, the most important architect of the Electoral College objections.

On the eve of the Jan. 6 votes, he presented colleagues with what he called a “third option.” He faulted the way some states had changed voting procedures during the pandemic, saying it was unconstitutional, without supporting the outlandish claims of Mr. Trump’s most vocal supporters. His Republican critics called it a Trojan horse that allowed lawmakers to vote with the president while hiding behind a more defensible case.

Johnson not only voted to overturn the 2020 election, he also voted against establishing the select committee to investigate the January 6th insurrection.

ABORTION

Before being elected to the U.S. House of Representatives in 2016, Johnson worked as a lawyer representing Christian clients. He described his legal career as being “on the front lines of the ‘culture war’ defending religious freedom, the sanctity of human life, and biblical values, including the defense of traditional marriage, and other ideals like these when they’ve been under assault.”

Johnson has co-sponsored at least four bills that would enact national abortion bans:

• Pain-Capable Unborn Child Protection Act would ban abortions at 20 weeks of pregnancy. Doctors who violate the law would be subject to up to 5 years in prison.
• Protecting Pain-Capable Unborn Children From Late-Term Abortions Act would ban abortions at 15 weeks of pregnancy. Doctors who violate the law would be subject to up to 5 years in prison.
• Heartbeat Protection Act of 2021 would ban abortions at approximately 6 weeks of pregnancy. Doctors who violate the law would be subject to up to 5 years in prison.
• Life at Conception Act would ban all abortions, defining personhood as beginning at the moment of fertilization. As an unwritten consequence, this bill would also ban the morning after pill.

Earlier this year, Johnson was the lead sponsor of a bill that would make it a crime to transport a minor across state lines to obtain an abortion without parental notification—regardless of the parental notification laws in the medical office’s jurisdiction.

Johnson also has a history of making radical anti-abortion statements:

After the Supreme Court overturned Roe v. Wade and Louisiana strengthened its abortion trigger law, Johnson celebrated on Twitter, saying, “And now… FINALLY… because Roe v. Wade was overturned last summer and Louisiana is now a proudly pro-life state— we will get the number of abortions to ZERO!! EVERYONE deserves a birthday. Thanks be to God.”

During a House Judiciary Committee hearing, Johnson attacked Roe v. Wade, saying that if American women were producing more bodies to fuel the economy Republicans wouldn’t have to cut essential social programs like Medicare and Medicaid.

“Roe v. Wade gave constitutional cover to the elective killing of unborn children in America. Period. You think about the implications of that on the economy. We’re all struggling here to cover the bases of Social Security and Medicare and Medicaid and all the rest. If we had all those able-bodied workers in the economy, we wouldn’t be going upside down and toppling over like this.”

LGBTQ+ RIGHTS

Before winning election to the U.S. House of Representatives, Johnson worked as an attorney and spokesperson for Alliance Defending Freedom, which is designated a hate group by the Southern Law Poverty Center for its anti-LGBTQ+ campaigns. During his time with the organization, Johnson wrote an op-ed arguing that Lawrence v. Texas, a Supreme Court case ruling that states cannot criminalize homosexual conduct, should be overturned. “There is clearly no ‘right to sodomy’ in the Constitution…by closing these bedroom doors, they have opened a Pandora’s box,” Johnson said.

Two years later, in 2005, Johnson received the Family Research Council’s “Faith, Family, and Freedom Award” for helping to push through Louisiana’s ban on same-sex marriage. While defending the amendment, Johnston wrote that allowing same-sex marriage would lead to legal pedophilia and people marrying their pets.

Johnson brought this Christian extremist zeal into his work as a lawmaker, first at the state and then at the federal level.

• As a state legislator, Johnson introduced the “Marriage and Conscience Act,” which would have prevented the state of Louisiana from prosecuting anti-LGBTQ+ discrimination.
• As a U.S. representative, Johnson authored the national “Don’t Say Gay” bill (formally titled the “Stop the Sexualization of Children Act”) to strip funding from schools and organizations that teach children about “gender identity, gender dysphoria, transgenderism, [or] sexual orientation.”
• Johnson co-sponsored Rep. Marjorie Taylor Greene’s Protect Children’s Innocence Act, which would prohibit gender-affirming care for minors.
• Johnson co-sponsored the Protection of Women and Girls in Sports Act of 2023, which would ban transgender athletes from women’s and girls’ sports at federally funded schools and educational institutions.

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Louisiana

The 5th Circuit issued a writ of mandamus canceling a hearing to choose a new congressional map for Louisiana, after a lower court declared that the original unconstitutionally diluted Black residents’ votes.

Background

Gov. John Bel Edwards vetoed the map in March 2022 because, despite Black people making up one-third of the state’s population, Republican lawmakers only created one majority-Black district out of six in the U.S. House of Representatives. Voters and voting rights groups sued, winning at the district court level in June 2022. Judge Shelly Dick (Obama appointee) wrote that the plaintiffs “demonstrated that they will suffer an irreparable harm if voting takes place” with the legislature’s map. She ordered the state to create a new map that complies with the Voting Rights Act by not diluting Black citizens’ vote.

However, in June 2022 the U.S. Supreme Court put Dick’s order on hold until it settled a similar redistricting case out of Alabama (Allen v. Milligan), forcing voters under the 2022 map for that year’s elections. After finding that Alabama’s map was unconstitutional in June 2023, the Supreme Court sent the Louisiana case back to the lower courts.

Fifth Circuit

Before Judge Dick could hold a hearing to begin the process of selecting a new, fair map for Louisiana, a three-judge panel of the 5th Circuit intervened. Judge Edith Jones, an archconservative appointed by Reagan, and Judge James Ho, a member of the Federalist Society appointed by Trump, ruled that Dick did not give the legislature enough time to come up with a substitute map:

Since 1966, the Supreme Court has repeatedly reminded lower federal courts that if legislative districts are found to be unconstitutional, the elected body must usually be afforded an adequate opportunity to enact revised districts before the federal court steps in to assume that authority…[The district court’s] action in rushing redistricting via a court-ordered map is a clear abuse of discretion for which there is no alternative means of appeal?

The legislature had over a year since the case was put on hold, and approximately 11 weeks after the hold was lifted to come up with a new map. Voting rights groups argue that Louisiana is trying to run out the clock to lock in the 2022 maps—without a second Black opportunity district, which would almost certainly elect an additional Democratic congressperson—for yet another election next year.

• Note that this is Gov. Edwards’ last year in office due to term limitations. Far-right Republican and election denier Jeff Landry, currently Louisiana’s AG, won the election to succeed him last week.

Ohio

The saga of the convoluted Ohio redistricting process continues three years after the 2020 census without a fair map in place.

In the interest of brevity, we’ll cover just a few key moments:

• 2018: Voters approved a constitutional amendment that prohibits the legislature from passing a congressional map “that unduly favors or disfavors a political party or its incumbents.” Should the legislature fail, the seven-member Ohio Redistricting Commission (made up of five Republicans and 2 Democrats) takes over drawing a new map.
• 2021: The GOP-controlled legislature created congressional maps that guaranteed Republicans 10-12 of 15 seats despite only receiving 50-55% of the statewide vote. Voters filed a lawsuit challenging the map.
• 2022: The Ohio Supreme Court struck down the 2021 map, writing that it “excessively and unwarrantedly favors the Republican Party and disfavors the Democratic Party.” After the legislature failed to pass a new map, the Redistricting Commission enacted a revised map with the same partisan breakdown as the original. The Supreme Court again struck it down for being a partisan gerrymander that favored Republicans in violation of the Ohio Constitution and gave the legislature 30 days to pass a remedial map.
• 2023: Neither the legislature nor the Redistricting Commission enacted a new map. Maureen O’Connor, the Republican chief justice who twice voted with the Democratic justices to strike down the state’s congressional map for partisan gerrymandering, retired. Gov. Mike DeWine (R) appointed prosecutor Joseph Deters to fill the vacancy. Deters has no prior judicial experience but is a longtime friend of the governor’s son, another Supreme Court justice.

Last month, after more than a year of delay and obstruction from the Republican-controlled Commission and legislature, the Ohio Supreme Court dismissed all lawsuits against the 2022 congressional map. Voting rights groups asked the court to do so, saying the turmoil isn’t in the best interest of Ohio voters. Instead, the organizations will focus on placing a new redistricting reform on the ballot in 2024.

The proposed amendment would replace the current Redistricting Commission, made up of partisan officials and lawmakers, with a 15-member citizen-led panel split equally between Republicans, Democrats, and independents. People who recently worked as politicians or lobbyists would not be allowed to serve on the Commission. On Thursday, the Ohio Ballot Board approved the proposed amendment's language, allowing supporters to begin gathering signatures.

• Voting rights groups are more likely to continue legal challenges against the state legislative maps, which gives Republicans an advantage in 61 of 99 Ohio House Districts and 23 of 33 Ohio Senate districts.

Wisconsin

State senate Republicans voted to block the confirmation of Wisconsin Elections Commission Joseph Czarnezki, a Democrat who tried to stop them from removing the nonpartisan elections administrator.

Background

The Wisconsin Elections Commission (WEC) is a bipartisan panel, currently split 3-3 between Republicans and Democrats, that administers and enforces election laws in the state. In 2019, the Senate unanimously confirmed Meagan Wolfe for a four year term to lead the Commission. She lost the support of the Wisconsin Republican party during the fallout of the 2020 election for pushing back against false claims that Donald Trump beat Joe Biden. Her detractors allege that policies like allowing the use of absentee ballots and easing voting restrictions during the pandemic rigged the election in Biden’s favor.

Wolfe’s term came to an end in June 2023. The WEC could reappoint her to a new four year term with a majority vote and the consent of the state Senate. However, the Democratic appointees on the panel believed that the Republican-controlled Senate would have voted down her reappointment, requiring her to leave office. The three Democratic members therefore abstained from the vote to reappoint Wolfe and deadlocked the panel. Due to a past state Supreme Court ruling that a GOP appointee could stay in his position past his term, until the Senate confirms a replacement, Wolfe likewise opted to remain in office as a holdover.

War on the WEC

Undeterred, the Wisconsin GOP [forced a vote](https://apnews.com/article/wisconsin-senate-meagan-wo...

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Alliance Defending Freedom (ADF) is a conservative Christian legal advocacy group that has been racking up wins at the U.S. Supreme Court. In recent years, ADF was involved in overturning Roe v. Wade, allowing businesses to deny services to LGBTQ+ people, eliminating limits on government support for religious organizations, and permitting employer-sponsored health insurance to exclude birth control.

• ADF is also behind a case challenging the FDA’s approval of mifepristone (medication abortion), which is bound for the Supreme Court in the near future.

ADF’s newest cases focus on expanding the right to use religion to discriminate against others and exempting religious organizations from oversight. These are cases to watch given the judiciary’s hard-right lean in recent years and its tendency to accept as fact any narrative that fits a conservative point of view.

Reproductive care

Morning-after pill

ADF is representing George Badeaux, a Minnesota pharmacist who refused to dispense emergency contraception because doing so conflicted with his religious beliefs.

Andrea Anderson went to Thrifty White pharmacy in 2019 to obtain the morning-after pill after her regular contraception failed. In the small town of McGregor—population less than 400—there is only one pharmacy with two employees. According to Anderson, Badeaux not only declined to fill her prescription, he also “tried to prevent [her] from obtaining that care from others” and “fail[ed] to provide her a reasonable alternative”:

Badeaux clarified that he did not want to fill Anderson’s prescription due to “[his] beliefs.” He did not clarify what his beliefs were or why they interfered with his ability to perform his job as a medical professional. Badeaux did not provide Anderson with information about where or how she could get her prescription filled.

When Anderson pushed Badeaux to help her find an alternative, Badeaux informed her that there would be another pharmacist working the next day, who might be willing to fill the medication but that he could not guarantee that they would help. He also informed her that there was a snowstorm coming and the second pharmacist might not make it into work.

When Anderson asked about other pharmacies she could go to, Badeaux simply told her not to try Shopko in Aitkin because she would probably run into trouble there. Badeaux only told Anderson about other ways in which she would be unable to fill her prescription. At no time did Badeaux provide Anderson with the name of a pharmacy or pharmacist where she could obtain her prescription medication.

Anderson ended up having to drive 3 hours round trip in a snowstorm to get her prescription filled. She sued Badeaux and Thrifty White pharmacy for discrimination on the basis of sex under the Minnesota Human Rights Act. A jury found that Badeaux and the pharmacy did not discriminate against Anderson—but Anderson contends that the district court’s instructions were faulty. She filed an appeal over the summer with the support of Gender Justice and the National Women’s Law Center:

The district court erred in three respects in denying Plaintiff’s motion for judgment as a matter of law. First, the district court improperly concluded that policies permitting businesses to obstruct prescriptions for emergency contraception cause a disparate impact based on sex but are not per se discriminatory. (Order at 12.) Second, the district court erred as a matter of law in holding that a jury could absolve the pharmacy entirely if the pharmacist’s actions were “motivated by his personal beliefs and not unlawful discriminatory intent.” (Order at 13.) Finally, the district court erred in holding that a reasonable jury could conclude that Thrifty White’s policy did not deprive Ms. Anderson of “full and equal enjoyment” of the pharmacy’s services. (Order at 11.)

Badeaux’s ADF team disputes Anderson’s claim that he did not provide her with alternative options and argues that his religious beliefs have nothing to do with discrimination on the basis of sex:

Badeaux wanted Anderson to have all the relevant facts, so that she could make an informed decision and obtain her prescription from another pharmacist at Thrifty White or elsewhere. At the earliest opportunity, Badeaux gave Anderson three alternatives: keep her prescription at Thrifty White, transfer it to the nearby CVS in Aitkin, or transfer it to another pharmacy of her choice..Badeaux never acted to interfere with Anderson obtaining ella. He merely sought to refer prescriptions for “emergency contraception” to another pharmacist and be excused from dispensing those prescriptions himself. And this decision was based on Badeaux’s religious beliefs, not Anderson’s sex..

Badeaux is a Christian who believes that an embryo—with DNA from each parent—is a new human life. Preventing an embryo’s implantation in the uterus would end that human life. So Badeaux objects on conscience grounds to participating in any conduct that might take a human life. That includes— but is not limited to—dispensing “emergency contraception” like ella, which the FDA recognizes “may affect implementation” or “work by preventing attachment (implantation) to the uterus,” Def.’s Ex. 12 at 6, 11.

Crisis pregnancy centers

Earlier this year, Vermont Gov. Phil Scott (R) signed into law S. 37, which protects access to abortion and gender-affirming care in the state. ADF sued on behalf of two crisis pregnancy centers challenging a provision that prohibits misleading advertising by these anti-abortion organizations.

Crisis pregnancy centers (CPCs) are often set up to look like real medical clinics but are actually religious-affiliated organizations designed to persuade pregnant women to carry the baby to term, often using false information about supposed physical and mental risks of abortion. Nationwide, CPCs outnumber abortion clinics 3 to 1. In states that have banned abortion—like Texas—the ratio is even higher.

...when two NBC News producers visited state-funded CPCs in Texas to ask for counseling, counselors told them that abortions caused mental illness and implied abortions could also cause cancer and infertility…

At a CPC near the Mexican border visited by NBC News producers, a female staffer implied that abortions can cause cancer and infertility and played a video saying that abortions cause mental illness.

At another CPC in the Dallas area, a volunteer disclosed that the center does not offer abortions and then repeated the falsehood that abortions can cause infertility. Asked about the abortion pill, the volunteer told a producer, “My job is not to scare you … you never get over seeing that baby.” She then pointed to a plastic model of a fetus and said, “Can you imagine one of these in your panties?”

Due to CPCs standard practice of misleading patients and the public, the Vermont legislature wrote [a bill](https://legislature.vermont.gov/Documents/2024/Docs/ACTS/ACT015/...

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Three high-profile trials of police officers who killed citizens are underway after years of delay.

Colorado: Elijah McClain

Over four years ago, three Aurora Police officers violently detained 23-year-old Elijah McClain while out for a walk, allegedly believing the young Black man to be a “suspicious” person:

One officer approached Mr. McClain, who was listening to music, and told him to stop walking. Mr. McClain stopped after several commands but said he had a right to continue toward home.

According to the camera footage, the officer responded, saying he had a right to stop Mr. McClain for looking suspicious, and grabbed him by the arms. As another officer approached, Mr. McClain can be heard saying: “I am an introvert, please respect the boundaries that I am speaking. Leave me alone.”

Though Mr. McClain had not committed a crime, officers immediately restrained him, telling him to stop resisting when he put his arms up to his chest and to “stop tensing up.” The footage shows Mr. McClain pleading with the officers to let go of him, and trying to get out of their grip.

The officers eventually brought him to the ground, claiming he had reached for one of their guns while they were pinning him against a wall to handcuff him. The body camera footage does not show this, officers said, because their cameras had fallen off into the grass.

One of the officers, Nathan Woodyard, twice applied a chokehold to McClain after he was already in handcuffs, causing him to lose consciousness.

...while he was detained, Mr. McClain was clearly in distress. After officers restrained him on the ground, he vomited several times, for which he apologized, saying, “I’m sorry, I wasn’t trying to do that, I can’t breathe correctly.”

An officer said in the body camera footage that officers had “put him out” with a carotid hold twice, “at least once successfully,” meaning Mr. McClain had lost consciousness.

When paramedics arrived, officers told them that McClain was “acting crazy” and had “incredible, crazy strength.” The paramedics gave him what was described as a “therapeutic” dose of ketamine—but in reality was about 150-170 mg too much for McClain’s weight. McClain was pronounced brain dead and died three days later.

After two years of delay and internal attempts to shield the officers from consequences, a grand jury ultimately indicted three officers—Nathan Woodyard, Jason Rosenblatt, and Randy Roedema—and two paramedics—Jeremy Cooper and Peter Cichuniec—on 32 total counts of manslaughter and criminally negligent homicide.

The trial of two officers, Rosenblatt and Roedema, began last week. During opening arguments, their defense team argued that officers had reason to stop McClain because he was acting suspiciously in a high-crime area. According to the defense, the officers acted appropriately and are not to blame for McClain’s death—the fault actually lies with the paramedics who gave him ketamine, they argued.

However, a pulmonologist testified that the chokeholds used by officers could have caused McClain’s death absent the ketamine:

Officers put him in two carotid holds, which commonly cause people to eventually vomit if they lose consciousness and then regain it. McClain started vomiting and he threw up into his mask. Officers didn’t remove it until a few minutes later.

“It was a large amount,” he said, noting he inspected that mask. “In my medical opinion, certainty … this is a very high-risk situation. The more you vomit, the more risk of aspiration.”

Beuther said McClain was aspirating, or breathing vomit into his lungs, during that time. Prosecutors played the body camera footage at a loud volume to hear McClain’s respiratory struggle and breathing and sickness throughout.

The trial will continue next week.

Washington: Manuel Ellis

Manuel Ellis was walking home from a convenience store just before midnight in March 2020 when he encountered Tacoma police officers Christopher Burbank and Matthew Collins. The story, according to police, was that Ellis abruptly attacked them while they were sitting in their car:

Collins, who was driving the patrol SUV, called out to Ellis and asked him why he was in the road.

Both officers said Ellis jogged over to their patrol car and was sweating profusely, something they found unusual since it was cold outside; the temperature was 41 degrees…After calling out to Ellis, Collins told him to wait on the sidewalk and they would help. Instead, the officers say Ellis walked to the passenger door and threatened to punch Burbank in the face.

Burbank quickly rolled his window up just before Ellis punched the window up to three times, records say. Ellis reached for the door handle. Burbank locked it. That’s when police say Ellis turned towards Collins, who had gotten out of the patrol car, and faced him in a “fighting stance” with clenched fists.

“As soon as I realized that he had focused on Officer Collins and was probably about to attack him or start fighting him, I used my door to actually door check him and hit him with the door to draw his attention away from Officer Collins and kind of divert him away from that,” Burbank told investigators.

There is no body camera footage of the incident because Tacoma police did not wear cameras at the time. Instead, most of what we know about the confrontation comes from eyewitness accounts, cell phone video, and security camera video—and all of these sources contradict the officers’ version of events. According to witnesses interviewed by the Washington Attorney’s General office, Ellis had “a peaceful, apparently respectful conversation” with the officers in their car, “with no signs of aggression from Ellis.” As Ellis turned to walk away, witnesses said Burbank “abruptly swung open the passenger door of the car, striking Ellis from behind and knocking him to his knees.” Both officers then got out of the car and attacked him:

The video from S.M., the woman sitting in her car behind COLLINS and BURBANK, 26 starts 46 seconds after 11:21 PM. When it begins, BURBANK can be seen wrapping his arms around Ellis, lifting him into the air, and driving him down into the pavement, striking at him 2 with one of his fists as he does so. Ellis can then be seen curling his legs in towards his body, as BURBANK backs away from him. The bag from the 7-11 that Ellis had been carrying just a few seconds earlier can be seen drifting away, pushed by that night's gusty winds. COLLINS then moves in towards Ellis and brings his weight down onto him. With Ellis underneath him, COLLINS begins striking Ellis's head with his fist. Meanwhile, BURBANK draws his taser gun and walks close in towards Ellis. COLLINS can be seen on S.M.'s video striking Ellis's head four times, with Ellis screaming after each strike…

At this point-56 seconds after 11:21 PM—the pizza delivery driver (S.C.)'s phone begins recording. That video begins by showing COLLINS, now behind Ellis, wrapping his arm around the front of Ellis's neck, as BURBANK takes aim with his taser gun. COLLINS then locks his hands together while squeezing the arm around Ellis's neck, applying what is called a "lateral vascular neck restraint," or "LVNR."

The witnesses all said that Ellis did not defend himself as officers repeatedly tased and choked him. After a third officer, Timothy Rankine, arrived on scene, they hogtied Ellis, applied their full body weight on his back, and placed a spit hood on his head. All three officers ignored obvious signs that Ellis was suffocating:

Around this time, 21 seconds after 11:25 PM, another officer on the scene, Sgt. Michael Lim, took to his radio to tell responding officers that they could slow their approach to the scene. As Sgt. Lim did so, Ellis can be heard in the background, speaking his last known words, the same desperate plea he had been repeating throughout the attack: "Can't breathe." "Can't breathe."

"Once that hobble was on he went quiet, he did not move," recalled Lt. Anthony Messineo, a ...

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The Supreme Court is back in session next week, hearing important cases on racial gerrymandering, civil asset forfeiture, and mandatory minimums in its first 30 days of the term.

OCT 2: Pulsifer v. United States

Pulsifer v. United States is about the interpretation of a federal law that allows defendants to avoid mandatory minimum sentences for certain nonviolent drug crimes. In a twist that originalists and textualists on the Supreme Court are sure to love, the case centers around whether “and” means “and” or if “and” means “or.”

Mark Pulsifer pleaded guilty to one count of distributing at least fifty grams of methamphetamine. He faced a mandatory minimum sentence of 15 years in prison due to a prior “serious drug felony” conviction. However, according to the First Step Act, defendants convicted of nonviolent drug crimes are eligible for individualized sentencing—avoiding the mandatory minimum—if they satisfy several criteria. This includes the requirements that the defendant did not possess a firearm or threaten violence while committing the drug crime and cooperated fully with the government. Key to the case before the Supreme Court, however, is a provision outlining prior offenses that disqualify a defendant from individualized sentencing:

...the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that—

(1) the defendant does not have—

(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;

(B) a prior 3-point offense, as determined under the sentencing guidelines; and

(C) a prior 2-point violent offense, as determined under the sentencing guidelines;

• In order to calculate a defendant's criminal history points, the United States Sentencing Commission adds points based on the length of each prior sentence. For example, a prior sentence of imprisonment exceeding one year and one month is assigned 3 points.

Pulsifer had two 3-point drug offenses but no 2-point violent offenses. Therefore, he argued that he was eligible for individualized sentencing before he did “not have—(A) more than 4 criminal history points … , (B) a prior 3-point offense … ; and (C) a prior 2-point violent offense.” The district court and 8th Circuit Court of Appeals ruled against Pulsifer, finding that meeting any one of the criteria disqualifies a person from circumventing the mandatory minimum sentencing. Had Pulsifer’s case been heard in the 9th Circuit, however, he would have received individualized sentencing:

The Seventh, Eighth, and Ninth Circuits have split 1–2 over the meaning of “and” in § 3553(f)(1). In the Ninth Circuit, “and” means “and.” A defendant must have (A) more than 4 points, (B) a 3-point offense, and (C) a 2-point violent offense before § 3553(f)(1) disqualifies him from safety-valve relief. In the Seventh and Eighth Circuits, in contrast, “and” means “or.” A defendant can satisfy § 3553(f)(1) and prove his eligibility for safety-valve relief only if he shows that he does not have (A) more than 4 points, (B) a 3-point offense, or (C) a 2-point violent offense— i.e., that he has none of the above.

Pulsifer asks the U.S. Supreme Court to resolve whether “and” means “and” or if “and” means “or” — and, as a result, determine how many people charged with non-violent drug crimes will be exempt from mandatory minimums.

OCT 3: CFPB v. Community Financial Services Assn

The Consumer Financial Protection Bureau (CFPB) is a federal agency that implements and enforces consumer protection laws in the financial sector, supervising banks, lenders, credit reporting agencies, and debt collection companies. Congress created the CFPB after the financial crisis of 2007–2008 as part of the Dodd–Frank Wall Street Reform and Consumer Protection Act.

In 2017, the CFPB issued a new rule regulating unfair and abusive practices related to short-term loans. One provision prohibits lenders like payday loan companies from making more than two consecutive attempts to withdraw payments from a consumer’s account when previous attempts have failed due to insufficient funds—preventing lenders from causing a consumer to incur excessive fees.

A trade association representing the payday loan industry, the Community Financial Services Association of America, sued the CFPB, seeking an order to block the short-term loan rule. The Association argued that the CFPB exceeded its statutory authority in making the rule and, even if it did not, the Bureau is unconstitutionally structured and should be stripped of its authority anyway.

The district court found in favor of the CFPB. The Association appealed to the 5th Circuit, drawing one of the most favorable panels possible: Don Willet, Cory Wilson, and Kurt Engelhardt, all Trump appointees. The panel sided with payday lenders, even though they say “for the most part, the [Association’s] claims miss their mark.” The one claim the panel embraced just so happens to void the CFPB entirely:

We agree that, for the most part, the Plaintiffs’ claims miss their mark. But one arrow has found its target: Congress’s decision to abdicate its appropriations power under the Constitution, i.e., to cede its power of the purse to the Bureau, violates the Constitution’s structural separation of powers. We thus reverse the judgment of the district court, render judgment in favor of the Plaintiffs, and vacate the Bureau’s 2017 Payday Lending Rule…

Because the funding employed by the Bureau to promulgate the Payday Lending Rule was wholly drawn through the agency’s unconstitutional funding scheme,17 there is a linear nexus between the infirm provision (the Bureau’s funding mechanism) and the challenged action (promulgation of the rule). In other words, without its unconstitutional funding, the Bureau lacked any other means to promulgate the rule.

The U.S. Supreme Court will consider whether the statute providing funding to the Consumer Financial Protection Bureau is unconstitutional.

OCT 4: Acheson Hotels v. Laufer

Acheson Hotels v. Laufer is about whether people who “test” businesses for compliance with the Americans with Disability Act (ADA) have standing to sue when they have no intention to visit the location.

Deborah Laufer is a disabled person who lives in Florida and is dependent upon a wheelchair for independent movement. She is a self-appointed ADA “tester” who searches the internet for hotel websites that do not provide adequate information for people with disabilities. When she finds a hotel that is not in compliance, she files a lawsuit seeking a court order that the business comes into compliance and money to cover attorney’s fees.

According to the ADA, all hotel websites must identify and describe the accessible features of the property and the accessible guest rooms in enough detail to enable an individual to decide if the facility will meet his or her needs. Laufer discovered that Acheson Hotels in Maine did not provide enough information and filed suit.

Acheson argues that Laufer does not have standing to sue because she had no intention of staying at their hotels. Circuit Courts have split on the issue.

• More information: NAACP and ACLU amicus brief in support of Laufer

OCT 10: Great Lakes Insurance v. Raiders Retreat Realty Co.

Ballotpedia: In 2019, a yacht owned by Raiders Realty Co., based in Pennsylvania, ran aground and acquired at least $300,000 in damages. The yacht was insured by Great Lakes Insurance SE, which denied coverage due to the fact that the yacht’s fire...

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AUTHOR’S NOTE: I’m sorry for the lack of posts recently. I caught covid at the beginning of the month, then my dad ended up in the hospital, and he is now in hospice care. So…it’s been a difficult couple of weeks. I’m trying to get back into the habit of writing regularly. Thank you for your patience and for sticking with me!

Housekeeping:

• HOW TO SUPPORT: If you are in the position to support my work, I have a patreon, venmo, and a paypal set up. Just three dollars a month makes a huge difference! No pressure though, I will keep posting these pieces publicly no matter what - paywalls suck.
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Gerrymandered into power

Two of the nation’s most purple states, with a voting population split nearly 50/50 between the two parties, are also the most gerrymandered to produce a Republican advantage. North Carolina voted for Donald Trump in 2020 by just 1.3% (or 74,000 votes) and has a split state government (with a Democratic governor and Republican legislature), yet the Senate is controlled by Republicans 30-20 and the General Assembly is 72 Republicans and 48 Democrats.

Wisconsin voted for President Joe Biden in the 2020 election by just 0.6% (or roughly 20,000 votes), but its congressional delegation is 6 Republicans and 2 Democrats, its Senate is 22 Republicans and 11 Democrats, and its Assembly is 64 Republicans and 35 Democrats. Like North Carolina, Wisconsin also has a split government with a Democratic governor and a Republican-controlled legislature.

• Note that Republicans now have a supermajority in both chambers in North Carolina, after Democrat Tricia Cotham switched parties just months after her election to the General Assembly. Wisconsin Republicans also have a new supermajority in the Senate with a special election win in April, giving them the power to impeach officials. Republicans in the Assembly are just two seats away from likewise having a supermajority.

Now, Republicans are using their unfair numerical advantage in both states to consolidate their power through the impeachment of Democratic justices on their respective Supreme Courts.

North Carolina

Last year, Republicans reclaimed a majority of the North Carolina Supreme Court, flipping the bench from 4-3 Democratic control to a 5-2 Republican majority. Only about half of the state’s registered voters participated in the election, choosing Republican Richard Dietz over Democratic incumbent Lucy Inman and Republican Trey Allen over Democratic incumbent Sam Ervin IV. In each race, roughly 200,000 people—or 5% of the total votes—determined the outcome.

• Both Dietz and Allen are listed as contributors to the Federalist Society.

Background

The conservative effort to capture the state Supreme Court began in 2010 when the Republican party won control over both the Senate and House for the first time in over a century. Then, in 2012, Republican Pat McCrory defeated Democratic candidate Walter Dalton to secure the governorship, becoming the first Republican to take the seat in 20 years. With their new trifecta, North Carolina Republicans passed a bill in 2013 to terminate the state’s pioneering public financing for judicial elections, which, according to a study published in American Politics Research, led justices to be more impartial and less responsive to donor interests.

• The GOP also passed other bills in 2013 to limit early voting, implement voter ID requirements, and ban same-day registration. They used their newfound power to create congressional maps that diluted Black voting power so obviously, even U.S. Supreme Court Justice Clarence Thomas had to vote in favor of invalidating the districts. A different court case resulted in several state legislative districts being declared racial gerrymanders, as well. The Republican-controlled legislature then voted to cancel a special session called by Gov. Cooper to redraw the maps, saying that redistricting did not satisfy the “extraordinary circumstances” requirement of the state constitution.

In 2016, North Carolina voters elected Democrat Roy Cooper to be governor and ousted Republican-affiliated Supreme Court Justice Robert Edmunds in favor of Democratic-affiliated Judge Michael Morgan, flipping the court from 4-3 conservative-leaning to 4-3 liberal-leaning control.

Crucially, however, judicial elections up until that point were non-partisan—the candidates' party affiliation was not listed on the ballot. That all changed in the few short months between the election and when Cooper took office. Republicans convened an emergency session of the legislature and, with Gov. McCrory (R) in power for just weeks longer, passed a law requiring judicial candidates to display their party affiliation on the ballot.

“It was a very sudden and brutal use of legislative power,” said state Sen. Graig Meyer, who was a Democrat in the House in 2016 and voted against the changes.

Gov.-elect Roy Cooper, who wouldn’t take office until 2017, was watching closely. “They believed that if they could make judicial races partisan again, that they would have a much better opportunity to control the courts and inject right-wing politics into the judicial system,” Cooper told Public Integrity this spring. “And they have been successful.”

• Republicans also used the last-minute special session to restrict incoming-Gov. Cooper’s executive power and to give themselves more representatives on state and county elections boards.

Since implementing the requirement that judicial candidates display a party affiliation on the ballot, Republicans have won five of six contests.

Results from Burke County, North Carolina, illustrate the difference the party label makes. The area is the longtime home of the Ervin family, a Democratic political dynasty in the state. In the 2014 state Supreme Court race, without party labels, Sam Ervin IV received 62% of the Burke County vote.

When Ervin came up for re-election as an incumbent in 2022, his party affiliation appeared next to his name. In that election, he received just 34% of the vote in Burke County.

Ervin lost statewide in November, as did the Democrat running for another seat, flipping the court from a 4-3 Democratic majority to a 5-2 Republican one.

Using their new majority, the Republican justices decided to rehear several voting rights cases decided just months earlier by the previously Democratic-led court. All five white Republican justices overturned their predecessors’ rulings—permitting extreme partisan gerrymanders, reinstating a restrictive photo ID law, and upholding the state’s felony disenfranchisement law. The two Democratic justices, both Black, dissented from each opinion, as well as the decision to rehear the cases in the first place:

Nothing has changed since we rendered our opinion in this case on 16 December 2022: The legal issues are the same; the evidence is the same; and the controlling law is the same. The only thing that has changed is the political composition of the Court. Now, approximately one month since this shift, the Court has taken an extraordinary action: It is allowing rehearing without justification…

The consequences of this Court’s orders are grave. The judiciary’s “authority . . . depends in large measure on the public’s willingness to respect and follow its decisions.” Williams-Yulee v. Florida. Bar, 575 U.S. 433, 446 (2015). The public’s trust in this Court, in turn, depends on the fragile confidence that our jurisprudence will not change with the tide of each election. Yet it took this Court just one month to send a smoke signal to the public t...

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The 11th Circuit on Monday overturned a district court order that blocked Alabama's felony ban on gender-affirming care from taking effect.

Background

The case, brought by a coalition of four parents of transgender children, healthcare providers, and a pastor, challenges the legality of Alabama’s “Vulnerable Child Compassion and Protection Act.” Signed into law by Gov. Kay Ivey (R) last year, the bill makes it a felony punishable by up to 10 years in prison for any person to “engage in or cause” specified types of medical care for transgender minors, including puberty blockers, hormone replacement therapy, and surgery. These bans, the plaintiffs argued, violate the 14th Amendment’s protection of the rights of parents to make decisions about their children:

The Act intrudes into the right of parents to make medical decisions to ensure the health and wellbeing of their children. It does so by prohibiting parents from seeking and obtaining appropriate medical care for their children and subjecting them to criminal prosecution if they do so…Further, the Act is worded broadly, criminalizing anyone who “causes” an individual to receive the prohibited medical treatments, so that doctors, parents, and even clergy cannot discuss, advise, or counsel parents of transgender minors about how to address their children’s medical needs.

In May 2022, District Judge Liles Burke, a Trump appointee, issued an injunction preventing the ban on puberty blockers and hormone replacement therapy from taking effect. The law, Burke found, had a “substantial likelihood” of being unconstitutional because it interfered with parents' fundamental rights to direct the medical care of their children and constituted unlawful sex discrimination:

A parent’s right “to make decisions concerning the care, custody, and control of their children” is one of “the oldest of the fundamental liberty interests” recognized by the Supreme Court. Troxel v. Granville, 530 U.S. 57, 65–66 (2000). Encompassed within this right is the more specific right to direct a child’s medical care. See Bendiburg v. Dempsey, 909 F.2d 463, 470 (11th Cir. 1990) (recognizing “the right of parents to generally make decisions concerning the treatment to be given to their children”).15 Accordingly, parents “retain plenary authority to seek such care for their children, subject to a physician’s independent examination and medical judgment.” Parham v. J.R., 442 U.S. 584, 604 (1979).

Against this backdrop, Parent Plaintiffs are substantially likely to show that they have a fundamental right to treat their children with transitioning medications subject to medically accepted standards and that the Act infringes on that right. The Act prevents Parent Plaintiffs from choosing that course of treatment for their children by criminalizing the use of transitioning medications to treat gender dysphoria in minors, even at the independent recommendation of a licensed pediatrician. Accordingly, Parent Plaintiffs are substantially likely to show that the Act infringes on their fundamental right to treat their children with transitioning medications subject to medically accepted standards.

11th Circuit

The state appealed Burke’s ruling to the 11th Circuit Court of Appeals at the end of June 2022, seizing on ideas from the Supreme Court’s conservative majority in the Dobbs opinion, released just days earlier. Because hormone replacement therapy and puberty blockers are not “deeply rooted” in U.S. history, Alabama Attorney General Steve Marshall (R) argued, the state is within its rights to ban the treatments:

The Due Process Clause does not forbid States from regulating medicine, be it medical marijuana, abortion, or transitioning treatments. The district court reasoned that parents “have a fundamental right to direct the medical care of their children,” id. at 21, but that defines the right far too broadly. The Legislature determined that transitioning treatments in particular are too risky to authorize, so it is those treatments Plaintiffs must show the Constitution protects. But no one—adult or child—has a right to transitioning treatments that is deeply rooted in our Nation’s history and tradition. The State can thus regulate or prohibit those interventions for children, even if an adult wants the drugs for his child. Just as the parental relationship does not unlock a Due Process right allowing parents to obtain medical marijuana or abortions for their children, neither does it unlock a right to transitioning treatments. The Constitution reserves to the State—not courts or medical interest groups—the authority to determine that these sterilizing interventions are too dangerous for minors. [emphasis added]

A three-judge panel, made up entirely of Trump appointees (11th Circuit Judge Barbara Lagoa, 11th Circuit Judge Andrew Brasher, and District Judge J.P. Boulee), ruled Monday in favor of the state. “The plaintiffs,” Judge Lagoa wrote, “have not presented any authority that supports the existence of a constitutional right to ‘treat [one’s] children with transitioning medications subject to medically accepted standards.'”

[T]he use of these medications in general—let alone for children—almost certainly is not “deeply rooted” in our nation’s history and tradition. Although there are records of transgender or otherwise gender nonconforming individuals from various points in history, the earliest recorded uses of puberty blocking medication and cross-sex hormone treatment for purposes of treating the discordance between an individual’s biological sex and sense of gender identity did not occur until well into the twentieth century. Indeed, the district court’s order does not feature any discussion of the history of the use of puberty blockers or cross-sex hormone treatment or otherwise explain how that history informs the meaning of the Fourteenth Amendment at the time it was ratified—July 9, 1868.

In other words, because the right of parents to obtain medical treatment for their transgender children is not explicitly mentioned in the Constitution and did not exist in 19th-century legal history, the court has no obligation to protect it.

The 11th Circuit’s opinion is already affecting transgender individuals outside of Alabama, with Georgia filing a motion yesterday asking the courts to allow the state to enforce its ban on hormone therapy for transgender minors.

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Los Angeles Sheriff’s Department

The FBI has opened criminal investigations into several violent encounters involving Los Angeles County sheriff's deputies, the LA Times reported last month. So far, it is only known that federal authorities are looking into two specific cases: one in which a deputy punched a Black mother in her face while she was holding her newborn baby, and another in which a deputy threw a Black woman to the ground by her neck after she started recording an arrest with her cellphone.

The internal county email obtained by The Times said that “federal criminal investigations have been opened concerning the recent incidents” in Palmdale and Lancaster.

“The FBI has already been to headquarters to obtain department documents on both incidents,” the email said, adding that the U.S. Justice Department “will not be publicly commenting on the investigations.”

The email also mentions that the California Attorney General’s office is opening an investigation into the 2020 fatal shooting of Andres Guardado, a case allegedly involving LASD gangs and destroyed surveillance video that could have disproven the officers’ account of events.

• Relatedly, Los Angeles Superior Court Judge James C. Chalfant issued a preliminary injunction blocking the Office of Inspector General’s investigation of deputy gangs in the LA Sheriff’s Department. The police union argued that interview requests and requirements to show investigators potential gang tattoos would violate state labor law.

News of the FBI probe comes as surveillance footage of another violent arrest by the LASD was made public. Emmett Brock, a 23-year-old transgender man, was followed to a 7-Eleven in Whittier, California, by Deputy Joseph Benza after “casually” flipping the officer off:

Brock said the incident began when he was driving and observed the deputy "just acting in a very domineering, abusive way towards this woman on the street."

After making the gesture to the deputy, Brock said the same deputy hopped in his car and began following him. Brock said he proceeded to deviate from his route to see if the deputy would keep following him.

Brock said he called 911 and claims he was told "If he doesn't have lights or sirens on, he's not pulling you over. If he hasn't pulled you over, he hasn't pulled you over. Continue to your destination."

Brock pulled into a 7-Eleven parking lot when the deputy's car pulled in behind him and turned his lights on before Brock got out of the car, which can also be seen in the surveillance footage.

Benza confronted Brock as he got out of his car, telling him, “I stopped you.” When Brock replied that the officer did not stop him, Benza slammed him to the pavement and repeatedly punched him in the head.

The pair exchanged a few words while the deputy pinned Brock to the ground.

"I told you to stop. You walked away," the deputy said. "You have a weapon on you?"

Brock told the deputy he did not have a weapon on him, while using expletives, shortly before shouting "I can't breathe" and "you're going to kill me."

Brock was placed under arrest for mayhem, resisting arrest, obstruction, and failure to obey a police officer. According to Benza’s arrest report, he stopped Brock for a vehicle code violation because he saw an air freshener hanging from the car’s rearview mirror.

“I punched S/Brock face and head, using both of my fists, approximately 8 times in rapid succession,” Benza wrote in a report following the incident. The report was shared by Brock’s attorney, along with medical records showing the deputy broke a bone in his hand during the altercation.

Benza also reported that Brock repeatedly tried to bite him, which was also noted in the medical report, with a comment following the exam that “there is no bite marks at this time.” Brock, who can be heard yelling throughout the encounter, told CNN he didn’t bite Benza.

After allegedly facing gender discrimination and harassment while being booked into jail, Brock lost his teaching job due to the charges filed against him.

Kansas Two-Step

A federal judge ruled last month that Kansas Highway Patrol (KHP) must cease the search and seizure of motorist vehicles due only to the fact that surrounding states have legalized marijuana.

The ACLU brought the lawsuit challenging the practice known as the “Kansas-Two Step,” wherein troopers pull over a vehicle, issue a ticket or warning, but then attempt to keep motorists talking in order to develop “reasonable suspicion” that drugs are in the car. This practice is most often employed on federal highway I-70, connecting Colorado to the west with Missouri to the east. Both states have legalized marijuana; Kansas has not. KHP troopers, therefore, consider the very fact that a person is driving on I-70 as suspicious, particularly if the vehicle has a Colorado or Missouri license plate.

Typically, at the beginning of the initial traffic stop, a trooper does not have reasonable suspicion to search the vehicle or the driver. Therefore, his job is to “develop” reasonable suspicion to do so. A trooper without reasonable suspicion is a trooper engaged in a fishing expedition for evidence of drug crimes. Fortunately for troopers, the law provides convenient, easy-to-use, virtually fool-proof tools to do so: (1) after the traffic stop is concluded, the trooper can try to keep the driver talking until he or she says something which a trooper considers suspicious; or (2) the trooper can elicit the driver’s consent to a search…

Even though the law requires that consent be knowing, intelligent and voluntary, troopers don’t generally let such niceties stand in their way. For drivers who are not initially forthcoming with consent, troopers are trained to conclude the traffic stop, somehow signal that the driver is free to go, then immediately re-engage the driver in friendly, casual conversation to keep the driver at the scene and enable the trooper to develop reasonable suspicion or take another stab at getting consent—a maneuver colloquially known as the “Kansas Two-Step.” If the driver persists in refusing to consent, the trooper has a fallback position: search the vehicle anyway and claim that he had reasonable suspicion all along.

In sum, KHP trains its officers to unconstitutionally extend traffic stops in the hopes of finding an excuse to detain the driver and search the vehicle. Suspicion can be claimed based on inconsistent statements, body language, nervousness—or, as is especially applicable in Kansas, travel plans.

At least since 2014, when Colorado legalized the recreational cultivation, sale and possession of marijuana, KHP troopers have routinely considered a driver’s travel plans (out-of-state travel origin and destination) as factors contributing to reasonable suspicion of drug possession or drug trafficking, and they have routinely detained out-of-state drivers for traffic stops and canine sniffs at disproportionately high rates compared to drivers who are Kansas residents…

KHP troopers are far more likely to stop out-of-state drivers than Kansas drivers. From January of 2018 to November of 2020, KHP troopers stopped 70 per cent more out-of-state drivers than would be expected if KHP troopers stopped in-state and out-of-state drivers at the same rate. The 70 per cent discrepancy represents roughly 50,000 traffic stops…Once a motorist has been pulled over for a traffic stop, out-of-state motorists are much more likely than in-state motoris...

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Florida

Florida Gov. Ron DeSantis (R) removed another democratically elected prosecutor from office yesterday, accusing her of “neglect of duty.”

Monique Worrell, the state attorney of Florida’s 9th Judicial Circuit covering the Orlando area, was elected to the position by over 66% of voters in 2020. She is a former public defender who built her career on criminal justice reform, campaigning on ending wrongful convictions and increasing police accountability. As such, she has regularly been attacked by Florida police unions and Republican politicians as being “too soft on crime.”

In a document announcing her removal on Wednesday, Gov. DeSantis alleged that “the administration of criminal justice in the Ninth Circuit has been so clearly and fundamentally derelict as to constitute both neglect of duty and incompetence.” DeSantis held a press conference soon after, featuring two sheriffs, whose jurisdictions are not in Worrell’s district, and who heaped praise on the governor amid applause from the audience:

Polk County Sheriff Grady Judd: When Gov. DeSantis was first elected, he was asked by the media about these laws that help people in prison. I mean, he was a brand new governor and certainly he had the opportunity there in front of the media to say ‘well, I’ll check it out.’ But he looked the cameras in the eye and says, ‘I believe in truth and sentencing.’ You see, this governor has always put the victims, has always put the law-abiding citizens ahead of the criminals. Always. And that’s exactly what he’s done here today. I’ve had the honor of being in law enforcement my entire adult life and I know true real leadership when I see true real leadership. And that’s what Gov. DeSantis does every day when he comes to work.

Brevard County Sheriff Wayne Ivey: Like Sheriff Judd, I’ve been in this business for a long time. I will tell you this, this is very simple when it comes to law and order—Gov. DeSantis is not playing. Gov. DeSantis, like I and all the others standing up here, took an oath of office to protect our communities. He understands that government’s one and only responsibility is to protect its citizens. And his actions today, without question, saved lives of citizens in central Florida…This is simple—about law and order. It’s not about anything else. It’s not about politics, it’s not about politics, it’s not about likes or dislikes. Actually, I’m going to say it is about likes or dislikes. Gov. DeSantis likes elected leaders that do their job. Their job of putting bad people in jail. Folks, we don’t want to become some of these other areas that we see around the country. New York, Los Angeles, Chicago, Detroit, Seattle. We don’t want to become those. And we need strong leaders that are going to say ‘enough is enough.’

Worrell held her own news conference, saying “if we’re mourning anything this morning, it is the loss of democracy.”

I am your duly elected state attorney for the Ninth Judicial Circuit and nothing done by a weak dictator can change that. This is an outrage…Elected officials are being taken out of office solely for political purposes and that should never be a thing. There used to be a very high standard for the removal of elected officials. There used to be a standard that I would have been criminally prosecuted for something, neglecting my duties – meaning that I'd not show up for work and do my job – or that I have some sort of an illness that prevented me from doing my job.

But under this tyranny, elected officials can be removed simply for political purposes and by a whim of the governor and no matter how you feel about me, you should not be OK with that.

DeSantis appointed Andrew Bain, who has served as a judge on the 9th Judicial Circuit, to replace Worrell. Bain is a member of the far-right Federalist Society, just like the person chosen to replace the other state attorney ousted by DeSantis.

Almost exactly a year ago, DeSantis removed Hillsborough County state attorney Andrew Warren from his elected office for pledging not to bring criminal charges against seekers or providers of abortion or gender transition treatments. Susan Lopez, a member of the Federalist Society, was chosen by DeSantis to replace him.

• Reminder: Warren sued DeSantis, seeking his job back. Federal Judge Robert Hinkle overwhelmingly sided with Warren but conceded that he didn’t have the authority to reinstate him to his position. “Florida Governor Ron DeSantis suspended elected State Attorney Andrew H. Warren, ostensibly on the ground that Mr. Warren had blanket policies not to prosecute certain kinds of cases,” Hinkle wrote. “The allegation was false. Mr. Warren’s well-established policy, followed in every case by every prosecutor in the office, was to exercise prosecutorial discretion at every stage of every case. Any reasonable investigation would have confirmed this.”

Georgia

Meanwhile, a group of district attorneys in Georgia filed a lawsuit last week challenging a newly enacted statute that makes it easier to remove elected prosecutors.

Senate Bill 92, signed by Gov. Brian Kemp (R) in May, created a commission to discipline and potentially remove prosecutors for nearly any reason, including using prosecutorial discretion not to bring charges in particular instances. All members of the commission are appointed by Republican officials.

When signing the bill into law, Kemp said the commission is needed to rein in “far-left prosecutors” who are "making our communities less safe”—code for reform-minded attorneys who prioritize treatment and rehabilitation over jail and refuse to bring charges that support the GOP war on women and transgender people. Others, however, worry that the real goal of Republican leaders is to remove Fulton County District Attorney Fani Willis from office for investigating former president Donald Trump. Without a court order blocking its implementation, the commission will be functional at the start of next year.

The lawsuit, brought by Stone Mountain DA Sherry Boston, Towaliga DA Jonathan Adams (a Republican), Augusta DA Jared Williams, and Cobb DA Flynn Broady—who together represent a total population of more than 1.8 million people—argues that the new law “discourages prosecutors from exercising their judgment to decline to pursue charges in a case, to pursue rehabilitative approaches, or to seek a lower sentence.”

Prosecutorial discretion is imperative to the job of all district attorneys. For example, consensual sodomy and adultery are still illegal in Georgia; prosecutors just decline to bring charges when those “crimes” are committed.

Crimes like adultery, fornication, and sodomy are still on the books in Georgia, but many prosecutors decline to prosecute them. Adams had a situation in September where a woman filed an application for a warrant to arrest her husband for adultery. “If I didn’t have that policy against prosecuting that crime, her husband would have had an arrest, would have had to be booked into the jail, may have lost his job or had some other impact,” he said. “Every unmarried person in the entire state of Georgia having sexual activities is committing a criminal offense.”

Conservative lawmakers could be setting a precedent that could come back to bite them, Adams said, potentially facing edicts in the future by a more liberal governor or legislature. He said, “Down the road, we’re gonna have to face this on the other side.”

This is an automated archive made by the Lemmit Bot.

The original was posted on /r/keep_track by /u/rusticgorilla on 2023-08-08 18:53:59.

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The U.S. Department of Justice filed a lawsuit against Texas over the state’s refusal to remove a 1,000-foot buoy barrier system it placed in the Rio Grande River to “secure the border.”

The buoys are tethered to the bottom of the river “with thick cables and concrete bases,” to prevent people from swimming under. Circular serrated saw blades are between each buoy to deter anyone from climbing over. So far, the buoys are alleged to have claimed the lives of two migrants, though the exact causes of death have not been officially determined.

Texas Gov. Greg Abbott installed the buoys last month as part of his $4 billion border mission, Operation Lone Star, to deter immigration through federally unsanctioned and potentially illegal methods. The program has also:

• Installed miles of razor wire along the banks of the Rio Grande, some of which becomes submerged when water levels increase. According to internal Texas Department of Public Safety (DPS) emails, a 19-year-old pregnant woman was caught in the razor wire while undergoing a miscarriage. At least seven migrants were injured, some requiring staples to close lacerations.
• Allegedly ordered officers to “push small children and nursing babies back into the Rio Grande” and prohibited officers from giving water to asylum seekers even in extreme heat.
• Separated families who cross into Texas by “detaining fathers on trespassing charges and turning over mothers and children to federal officials.”
• Arrested thousands of migrants and asylum seekers for trespassing on private property to “skirt constitutional restrictions that bar states from enforcing federal immigration law.” In some cases, the arrestees are held in state prisons for months.

The new DOJ lawsuit only challenges the buoy system, however, frustrating immigration advocates and progressive commentators. According to the government, Texas illegally built structures in the Rio Grande without the U.S. Army Corps of Engineers’ authorization, thereby violating the Rivers and Harbors Appropriation Act of 1899 (RHA).

RHA section 10, 33 U.S.C. § 403, prohibits the “creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States.” 33 U.S.C. § 403… Defendants do not have authorization from the Corps pursuant to 33 U.S.C. § 403 or 33 C.F.R. § 322.3 for the Floating Barrier or for any associated infrastructure.

A hearing for a preliminary injunction is set for August 22. The DOJ asks the courts to order Gov. Abbott to remove the buoy system immediately.

Regardless of how the district court rules, the case will likely get appealed—possibly “all the way to the United States Supreme Court,” as Gov. Abbott vowed on Fox News.