Anthony M. Kennedy, Associate Justice of the Supreme Court of the United States, swears in Supreme Court Justice Neil M. Gorsuch. Photo: Public domain
While the Trump administration remains embroiled in scandals of its own making and continues to blunder forward seemingly without direction, Republicans have their collective gaze fixed on a prize they have coveted for years: complete domination of the judiciary.
This goal, thanks to years of obstructionism, may be just on the horizon.
As Esquire‘s Charles Pierce notes, President Trump has effectively “subcontracted the job of picking judges to the Federalist Society, the Heritage Foundation, and various other wingnut intellectual chop shops.” Three of the finalists—Kevin Newsom, Damien Schiff, and John Bush—sat before the Senate Judiciary Committee on Wednesday for their confirmation hearings, which were scarcely mentioned by the press. Continue reading →
Wisconsin’s voter ID law may have suppressed a stunning 200,000 votes in the 2016 presidential election, a study shown exclusively to TheNation has revealed, and the law disproportionately kept Democratic and African-American voters from the polls.
President Donald Trump won Wisconsin by a mere 22,748 votes.
The study by Priorities USA, a group affiliated with the Democratic Party, looked at states that had passed strict voter ID laws since the 2012 election, comparing them to states that did not. According to TheNation‘s Ari Berman,the study found: Continue reading →
The executive order signals a sharp shift in federal climate change rules, standards and work procedures. This was expected based on Trump’s campaign rhetoric and his selection of Cabinet members and advisers. But as with other Trump White House initiatives, it is unclear how much change the administration can deliver and at what pace.
It took a long time for the Obama administration to formulate some of the central climate change rules now targeted by the Trump administration, and it will take years trying to change them. The signing of the executive order is just the administration’s opening salvo in what is destined to become a protracted and high-stakes battle.
The Trump attack
Cloaked in unsubstantiated “pro-growth” rhetoric, the executive order targets the Obama administration’s Clean Power Plan. It also focuses on mandates to cap methane emissions, looks to increase support for the extraction and use of coal and other fossil fuels, and changes the ways in which climate change concerns are embedded in actions by federal agencies (including taking into consideration the social cost of carbon).
The Clean Power Plan was designed to curb carbon dioxide emissions from existing coal-fired power plants as well as to promote renewable energy production and greater energy efficiency. The Obama administration also set emissions standards for new power plants. These and other measures were issued in response to the unwillingness by the U.S. Congress to pass any separate climate change legislation.
Announced in August 2015, the Clean Power Plan was immediately challenged in court by a group of 29 states and state agencies with the support of a variety of firms and industry organizations, including Oklahoma while current EPA Administrator Scott Pruitt was the state’s attorney general. The opponents argued the EPA had overstepped its regulatory authority with the new rules and they therefore should be struck down.
The Supreme Court in an unprecedented decision in February 2016 ordered the EPA to temporarily stay the implementation of the Clean Power Plan until a lower-level court had made a ruling on the EPA’s authority to set such standards. Oral hearings were held in the D.C. Circuit Court in September 2016, but a decision is still pending.
Because the EPA under Pruitt will review the Clean Power Plan and roll back other Obama initiatives, the executive order alters basic legal dynamics. Now, lawsuits making their way up the court system will change. Instead of challenging the Obama rules, suits will be aimed at forcing the Trump administration to either uphold them or take other forms of meaningful regulatory action.
Many states and environmental groups that support the Clean Power Plan and other existing measures stand ready with a lineup of lawyers to fight back. They will argue that the federal government must act based on a 2007 U.S. Supreme Court decision classifying CO2 as a pollutant under the Clean Air Act and a 2009 EPA Endangerment Finding stating that current and projected atmospheric concentrations of greenhouse gases threaten the public health and welfare of current and future generations.
Will we still always have Paris?
The executive order is silent on the Trump administration’s intent vis-à-vis the 2015 Paris Agreement, in which nearly 200 countries agreed to lower greenhouse gas emissions. But it casts a long shadow both on the U.S. ability to meet its Paris goal and the future of U.S. international leadership on climate change.
The implementation of the Clean Power Plan is central to fulfilling U.S. commitments under the Paris Agreement of reducing national GHG emissions by 26-28 percent below 2005 levels by 2025 and to make best efforts to reduce its emissions by 28 percent. By 2014, national emissions were down 9 percent compared with 2005 levels.
Electing to either leave or ignore the Paris Agreement would not provide the United States with more independence and flexibility, as it reduces its political influence and ability to shape future decisions in global climate negotiations.
There are other global environmental treaties around biodiversity protection and the management of hazardous chemicals and wastes to which the United States is not a party. As a result, the U.S. ability to influence regulatory decisions under these treaties is severely limited – for example, specific chemical compounds where there is a need to protect human health and the environment, or where U.S. firms have economic interests. This foreshadows the kind of outsider status that the United States may gain if it backs out of the Paris Agreement.
Notably, ceding international leadership on climate change may serve only to embolden other countries, including China, to take on a more prominent role at the expense of U.S. influence. It would also further increase many other countries’ rapidly mounting frustration with the Trump administration.
Many different stakeholders, including ExxonMobil, argue that it is better for the United States to be on the inside rather than the outside when it comes to the future climate change cooperation. Former ExxonMobil CEO and current Secretary of State Rex Tillerson has suggested the U.S. should stay in the agreement.
US paying for assistance or ammunition?
Even if the United States stays with the Paris Agreement, President Trump and Republicans in Congress have made it clear they want to severely limit, or completely cut off, U.S. contributions to climate finance in support of mitigation and adaptation measures in developing countries. The United States so far has provided US$1 billion of the $3 billion pledged by the Obama administration to the Green Climate Fund.
Carrying through on these statements by significantly reducing U.S. international assistance would effectively erode an important basis of U.S. political leadership and influence. But they appear to be part of a larger shift in the use of foreign policy instruments from nonmilitary means, such as climate and development aid, to military ones.
Trump’s “skinny budget” proposed a 31 percent cut to the EPA budget and a 29 percent reduction in funds for the State Department and other development programs. There is very little chance that Congress will approve such dramatic cuts, but these proposals tie in with what seems to be a broader change in U.S. foreign policy strategy.
As Trump proposed a 10 percent increase in the military budget, foreign policy experts worry that a significant cut in nonmilitary resources will severely undermine U.S. leadership and the ability by the State Department and other government agencies to promote U.S. interest and political stability.
The court of public opinion
As the battle over federal climate change policy continues, President Trump risks losing the public opinion battle on climate change beyond his most ardent base.
A recent poll shows that 75 percent of Americans believe that carbon dioxide should be regulated as a pollutant and that 69 percent believe that there should be limits on emissions from existing coal-fired power plants.
If such polling numbers remain strong, the Trump administration will be fighting an uphill battle in both courtrooms and the public sphere.
These hearings often are contentious. That was the case for Justice Clarence Thomas in the early 1990s. And they surely won’t be a cake walk this time, given Democratic anger over Republican inaction on Merrick Garland, former President Barack Obama’s nominee to replace Justice Antonin Scalia, who died in February 2016.
An obvious question for Judge Gorsuch is his view of the court’s 2010 ruling in Citizens United v. Federal Elections Commission. That five-to-four decision divided sharply along perceived partisan lines. It affected the speech rights of corporations and unions in funding political ads shortly before elections. Committee Democrats no doubt will grill Gorsuch about Citizens United.
As the director of the Marion B. Brechner First Amendment Project at the University of Florida, I would like to suggest at least three other timely and vital questions he should be asked about speech rights – but that I doubt he will face.
Capturing cops on camera in public
The first question I’d pose to Gorsuch involves an issue the Supreme Court has never tackled – does the First Amendment protect a person’s right to record police officers doing their jobs in public places?
It’s a vital question in light of incidents such as the April 2015 shooting in the back of unarmed African-American Walter Scott by white police officer Michael Slager in South Carolina. A video of it was captured on a smartphone by barber Feidin Santana while walking to work. It was key evidence in Slager’s murder trial – which ended with a hung jury.
Without guidance from the Supreme Court about recording cops in public venues, lower courts have had to sort it out for themselves.
Just last month, the U.S. Court of Appeals for the Fifth Circuit concluded in Turner v. Driver that “First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place and manner restrictions.” That’s a positive step in terms of creating a constitutional right to record cops within the Fifth Circuit, which includes Texas, Louisiana and Mississippi. But just what constitutes a “reasonable” restriction is extremely vague and problematic, especially because judges usually defer to officers’ judgments.
Worse still, some courts haven’t even recognized any First Amendment right to record police.
Gorsuch thus should be asked: “Do citizens have a First Amendment right to record police doing their jobs in public places and, if there is such a right, what – if any – are the specific limits on that right?”
Gorsuch should be questioned about the First Amendment right to peaceably assemble and the limits on that right affecting political demonstrations on public streets, sidewalks and parks. The Supreme Court privileges such “quintessential public forums” for picketing and protests, and it carefully reviews any restrictions imposed there on speech and assembly. Would Gorsuch follow that tradition of protection?
Disturbingly, The New York Times reported earlier this month that lawmakers in more than 15 states are considering bills that would curb, to varying degrees, the right to protest. Some measures, such as Florida Senate Bill 1096, do so by requiring a special event permit be obtained before any protest on a street, thus stifling spontaneous demonstrations that might occur after a controversial executive order or a startling jury verdict.
Gorsuch thus should be asked: “What, if any, limits are there on the First Amendment right to engage in political speech in public spaces, including streets, sidewalks and parks?”
The right to offend
Finally, I’d ask Gorsuch for his views about the First Amendment right to offend. It’s an important topic today for three reasons.
First, protesters may use offensive language to capture attention and show the passion behind their views. The Supreme Court traditionally protects offensive political speech, as it famously did in 1971 in Cohen v. California. There it ruled in favor of Paul Robert Cohen’s First Amendment right to wear a jacket with the words “F— the Draft” in a Los Angeles courthouse hallway.
Second, some believe there’s a pall of political correctness in society, particularly in higher education. Some students may be deterred from using certain language or expressing particular viewpoints for fear they will offend others and thus be punished.
Third, the Supreme Court is set to rule in the coming months in a case called Lee v. Tam. It centers on the power of the U.S. Patent and Trademark Office to deny an Asian-American band called The Slants trademark registration over that name because it allegedly disparages Asians. The court heard oral argument in the case in January.
I’d thus ask Gorsuch: “When does offensive expression – in particular, offensive speech on political and social issues – lose protection under the First Amendment?”
Gorsuch already has submitted written answers to the Judiciary Committee on some issues, but not on the questions raised here. These topics – filming cops in public, protesting on streets and sidewalks, and using offensive language – seem especially relevant in a turbulent Trump era.
With just days until Supreme Court nominee Neil Gorsuch’s confirmation hearing before the Senate Judiciary Committee, a new trove of documents is raising additional questions about the federal judge’s time at the Department of Justice (DOJ), where he “played a key role in defending the torture and detention policies that have been rejected by the courts and by our country,” according to one group.
From June 2005 to August 2006, Gorsuch served as the principal deputy to the associate attorney general under former President George W. Bush. Continue reading →
A 2016 poll found two-thirds of Americans say churches and other houses of worship should not come out in favor of one candidate over another during political elections—but President Donald Trump wants to “destroy” the amendment that keeps it that way. (Photo: Peter Miller/flickr/cc)
President Donald Trump appears intent on demolishing the wall between church and state, telling an audience on Thursday that he will “totally destroy” an amendment that bars religious tax-exempt organizations from engaging in political activity—while his administration reportedly circulates a far-reaching draft executive order on “religious freedom” that effectively legalizes discrimination.
Trump told attendees at the National Prayer Breakfast on Thursday that he “will get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution.” Continue reading →
Democrats on the Senate Judiciary Committee invoked a procedural move called the two-hour rule—which, according toThe Hill, prevents “holding committee meetings beyond the first two hours of the Senate’s day”—to push the attorney general vote until Wednesday.
The move stalls the controversial confirmation of Sen. Jeff Sessions and came at the same time that Democrats on the Senate Finance Committee boycotted hearings for Treasury Secretary nominee Steven Mnuchin and Rep. Tom Price’s nomination to be secretary of health and human services, forcing Republicans to reschedule both votes. Continue reading →
President-elect Trump promises to appoint a hard-right conservative to the U.S. Supreme Court, dashing progressive hopes for a liberal court in the foreseeable future. And he may well be appointing at least one other justice.
Progressives are panic-stricken. Conservatives are euphoric. But, regardless of where you fall on the political spectrum, one thing is certain: The repercussions of the Supreme Court overturning decisions such as Roe v. Wade and Obergefell v. Hodges will be palpable, affecting millions of lives.
On Thursday, December 1, a vital Supreme Court order is set to go into effect that dramatically expands the surveillance power of federal agents. The impending alteration to Rule 41 of the Federal Rules of Criminal Procedure softens the legal requirements for obtaining search and seizure warrants that grant the government remote access to individual’s computers and phones.
In the past, law enforcement was required to obtain a warrant from a judge within the jurisdiction where the proposed search was going take place. Under this new system, however, if an individual is using technology to conceal their location, the warrant is considered valid regardless of jurisdiction. A single authorization will have the potential to validate millions of searches on private devices. Any journalist, activist, or whistleblower who values privacy and uses tools like Freenet or the Tor network will fall directly into the crosshairs. Continue reading →
On Tuesday, the U.S. Department of Justice will send out 280 fewer election monitors than it did during the 2012 presidential election. (Photo: Penn State/flickr/cc)
The 2013 gutting of the Voting Rights Act means the U.S. Department of Justice (DOJ) will deploy just 500 election monitors to polling places in 28 states on Tuesday—hundreds less than in 2012, and imbued with limited powers.
“The bedrock of our democracy is the right to vote, and the Department of Justice works tirelessly to uphold that right not only on Election Day, but every day,” said Attorney General Loretta Lynch. “The department is deeply committed to the fair and unbiased application of our voting rights laws and we will work tirelessly to ensure that every eligible person that wants to do so is able to cast a ballot.” Continue reading →