July 5, 2022
The Supreme Court has ruled 5-4 that the Biden Administration can cancel the Trump-era “Remain in Mexico” program, which required authorities either to jail asylum applicants from Central America or deny them U.S. entry until their cases are resolved, reports The Wall Street Journal.
The court found the Biden Administration acted within its discretion by ending the program—overturning lower-court rulings that required the Department of Homeland Security to enforce the policy.
Writing for the court, Chief Justice John Roberts noted that Congress never has provided sufficient funding to detain the vast numbers of migrants seeking asylum. At the same time, the United States cannot unilaterally expel to Mexico the citizens of Central American countries covered by the policy.
The lower court “imposed a significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico,” the chief justice wrote, joined by Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh—adding that it forced the government “to the bargaining table with Mexico, over a policy that both countries wish to terminate,” and asserted authority “to supervise its continuing negotiations with Mexico to ensure that they are conducted ‘in good faith.’”
Texas and Missouri, both Republican-led states, sued to stop the administration from ending the policy, known formally as the Migrant Protection Protocols. Lower courts, including the Fifth U.S. Circuit Court of Appeals, in New Orleans, had found several reasons to keep it in place.
Among other arguments, the states contended that the Biden Administration failed to follow required administrative procedures in changing the policy; and for authority cited the Supreme Court’s 2019 decision rejecting the Trump Administration’s plan to require that census forms ask whether respondents had U.S. citizenship.
Justice Roberts, who also wrote the 2019 decision, said the comparison was inapt. In the census case, the Trump Administration said it needed the data to help protect minorities from discrimination under the Voting Rights Act of 1965. The Supreme Court, like several lower courts, found that claim to be a pretext.
In his ruling Thursday, the chief justice wrote that, while there were indications of “bad faith or improper behavior” by the Trump Administration’s actions on the census, “nothing in this record suggests a ‘significant mismatch between the decision the Secretary made and the rationale he provided’” for terminating Remain in Mexico.
The principal dissent, by Justice Samuel Alito, noted the crisis at the southern border.“In fiscal year 2021, the Border Patrol reported more than 1.7 million encounters with aliens along the Mexican border,” he wrote.
Due to those high numbers, Justice Alito wrote, the government lacks “the capacity to detain all inadmissible migrants encountered at the border.” But rather than return them “to Mexico while they await proceedings in this country, DHS has concluded that it may forgo that option altogether and instead simply release into this country untold numbers of aliens” whose asylum applications likely will be denied, he wrote.
Justices Clarence Thomas and Neil Gorsuch joined the Alito dissent. Justice Amy Coney Barrett, joined by the other three, filed a separate dissent raising procedural objections to hearing the case.
“The administration dragged its feet and refused to implement this effective program in good faith, allowing hundreds of thousands of illegals to pour over the border month after month,” said Texas Attorney General Ken Paxton, a Republican. “Today’s decision makes the border crisis worse.”
The Department of Homeland Security said it was moving ahead to end Remain in Mexico. The program “has endemic flaws, imposes unjustifiable human costs, and pulls resources and personnel away from other priority efforts to secure our border,” it said in a statement. “The Department also continues to enforce our immigration laws at the border and administer consequences for those who enter unlawfully.”
Research contact: @WSJ
July 1, 2022
In a 6-3 decision in the case of West Virginia v. EPA, the Supreme Court just made it much harder for the federal government to respond to climate change, reports The Huffington Post.
The Thursday, June 30, decision, written by Chief Justice John Roberts and joined by the other five conservative justices, the decision preemptively strikes down any regulations the Biden Administration might consider issuing under a provision of the Clean Air Act to limit carbon emissions at power plants.
The court ruled that EPA regulations aimed at reducing carbon emissions under a specific provision of the 1970 Clean Air Act are not permissible because Congress did not specifically authorize the EPA to regulate carbon emissions.
According to the court, the EPA’s regulation of power plant emissions amounts to a large enough new regulatory proposal targeting a large enough segment of the economy to require specific congressional authorization.
The court’s decision follows the expanding logic of its so-called “major questions doctrine.” The doctrine states that the Supreme Court can strike down regulatory action of “vast economic and political significance,” if Congress did not specifically delegate a rule-issuing agency to issue that regulation.
This expansive use of the major questions doctrine threatens to resurrect the court’s rarely invoked “nondelegation doctrine.” The nondelegation doctrine claims that executive branch agencies cannot update and write new regulations unless Congress specifically delegates that authority to them. The court most famously invoked this doctrine to strike down two New Deal programs in the 1930s. Since then, the court has long relied on other interpretations of law and its own precedents to let Congress delegate rule-writing authority to executive branch agencies without the kind of precise delegation that the doctrine would require.
While not fully resurrecting nondelegation, the court will now no longer just assume that Congress has delegated authority to the agencies. This could have significant implications for many executive branch agency regulations—including any that further regulate carbon emissions.
The Supreme Court decision results from years of litigation over the issue of carbon emission regulation across three different administrations, all centered on an obscure clause of the Clean Air Act.
The Obama Administration used the law’s Section 111D to justify rules in the Clean Power Plan—its signature plan to cut carbon from electricity-generating stations—spurring utilities to shift production from high-emitting plants to more efficient ones.
But opponents of regulation accused the White House of misinterpreting legal language, which they said only gave the EPA the right to dictate what power station owners could do within the facility’s “fenceline.” The Clean Power Plan gave companies options “beyond the fenceline” to comply with the rule by building renewable energy farms or running lower-emitting plants to offset dirtier coal-fired stations.
The Obama EPA’s interpretation was “a reach,” Brendan Collins, a partner at the Philadelphia-based environmental law firm Ballard Spahr, tells HuffPost. But the policy was really meant to be a stopgap that would give utilities more flexibility until carbon capture technology—hardware that can be retrofitted onto the smokestacks of a plant to collect and store carbon gas before it enters the atmospher —becomes feasible enough to mandate.
“At the end of the day, if EPA isn’t ready to say carbon capture is a technology that’s sufficiently feasible from a technical and financial standpoint that it can impose that obligation, then the best thing you can do is use less coal to make the same amount of electricity,” said Collins, whose firm’s clients are not involved in the case.
Whereas the Clean Power Plan gave multiple options for achieving that outcome, including by giving utilities the right to shift generation from dirtier to cleaner plants, the Trump Administration’s Affordable Clean Energy, or ACE, rule narrowed the regulation’s scope, requiring power station operators to make coal-fired units more efficient. The rule actually gave plant owners an incentive to burn more coal, as long as the generators in use were more efficient.
Had the Trump Administration stopped at just withdrawing and replacing the Clean Power Plan, there might not be a case here today. But the Trump-era EPA specifically argued that its interpretation of Section 111D as limiting federal authority to the area “within the fenceline” was correct.
“The political reason was to lock in the victory,” Collins said. “But the Trump Administration did not hedge. They did not say, ‘We can only do this, and even if we could do more and had the discretion to make that choice, we exercise discretion to only do this because we think that’s the most technically feasible choice.’ No. They went for it all by saying, ‘We must do no more than this, and we cannot do more than this.’”
The U.S. Court of Appeals for the District of Columbia Circuit struck down the ACE rule on those grounds, ruling that Section 111D does, in fact, grant the EPA authority beyond a facility’s fenceline.
In disagreeing with the D.C. Circuit, the Supreme Court has largely left the EPA where it started. The Clean Power Plan already has been rescinded, and the Biden Administration has said it would not revive the regulation. The ACE rule already has been struck down, and the Biden Administration has said it would not reinstate the regulation. And the EPA has yet to announce what it plans to propose in place of the ACE rule.
Given how much legal doubt the Obama Administration’s use of Section 111D caused, few policy observers expected rule-makers at Biden’s EPA to rely on that same statute this time around.
“There isn’t going to be any effect on power plants from this case, win, lose or draw,” Collins said ahead of the decision.
But Collins said to expect that the Biden Administration’s forthcoming power plant plan will be far more aggressive as a result of West Virginia v. EPA. Stripped of its ability to offer a similar menu of compliance options, the agency will likely have to rely more heavily on emissions cuts directly at facilities.
In other words, new solar panels or more use of a gas plant won’t bail out a coal-fired power station; the plant would have to either capture its emissions or shut down.
That, he said, is why the plaintiffs in West Virginia v. EPA were primarily a coal-mining company and Republican states.
“Westmoreland Coal? They’re in the business of selling coal. Red states? They’re in the business of getting elected. So, you don’t have anybody who has to deal with the consequences of what this outcome will be,” Collins said. “And the consequences would be a more ironfisted approach. … It’ll be an uncomfortable world for power generators.”
According to HuffPost, based on the court’s logic in the West Virginia case, it may well find that any other regulation issued by the EPA to limit carbon emissions without specific instruction from Congress violates its major question doctrine.
With Congress polarized on whether or not to even respond to climate change, let alone how, the court may well have cut off major avenues for regulation.
In the meantime, U.S. emissions are on pace to spike again this year.
Research contact: @HuffPost
CasJune 30, 2022
Cassidy Hutchinson wasn’t a household name before her testimony at the January 6 select committee’s hearing on Tuesday, June 28, but it seems unlikely she’ll remain in obscurity now, reports Politico.
With what may prove the most damning testimony about a sitting president’s actions in American history, the former right hand of ex-White House Chief of Staff Mark Meadows stitched together every element of the panel’s case against former President Donald Trump, Politico says.
The Capitol riot committee has painted the former president’s potential criminal culpability for his effort to overturn the election in stark hues: investigators have portrayed Trump fuming atop an increasingly conspiracy-addled West Wing and working to corrupt the peaceful transfer of power at any cost.
Yet it was their sixth hearing that most clearly cast Trump as a uniquely pernicious force, thanks to a soft-spoken but bell-clear witness.
“I was disgusted,” Hutchinson said of Trump’s behavior on January 6, particularly after he tweeted an attack on Mike Pence as the then-vice president was fleeing rioters who’d called for his execution. “It was unpatriotic. It was un-American. We were watching the Capitol building get defaced over a lie.”
And, while Trump and his allies rejected her assertions as “hearsay”—or, in Trump’s case, simply false—the former president’s allies have offered limited pushback so far to any of the specific evidence and recollections she presented. In fact, much of what she described has been corroborated by others.
Among her recollections, part of a succession of shocking details from inside the White House:
- Trump was informed that members of the crowd during the “Stop the Steal” rally on January 6, 2021, carried weapons. He asked the Secret Service to dismantle metal detectors to let them into the Ellipse, so that his audience would appear larger on TV. Those rallygoers would later march to the Capitol and mount a violent siege aimed at disrupting Congress’ certification of Trump’s loss.
- Trump lunged at the steering wheel of his presidential vehicle after he was informed that the Secret Service would not permit him to travel to the Capitol following his speech at that Ellipse rally.
- Trump told aides that he agreed with those who had stormed the Capitol and thought they were “right” to call for Pence’s hanging.
- Meadows and Trump lawyer Rudy Giuliani sought pardons from the then-president for their actions on that date related to challenging the election.
Hutchinson shared her sworn narrative just as federal prosecutors appear to be closing in on several of Trump’s top supporters/aides in his effort to stay in power. FBI agents last week seized the cell phone of attorney John Eastman, who devised a January 6 strategy to pressure Pence to overturn the election; they also searched the Lorton, Virginia, residence of Jeffery Clark, a former Justice Department official whom Trump nearly appointed acting attorney general to aid his election subversion push.
Meanwhile, Trump was also watching. The former president uncorked an 11-post tirade against Hutchinson on the Truth Social platform he created after getting booted from Twitter post-Capitol riot. He called her a “third-rate social climber,” denying her accounts of his comments about Pence as well as his apparent physical confrontation with his Secret Service leader—and even suggested her handwriting was indicative of a “whacko.”
Some Trump allies sought to puncture Hutchinson’s credibility by casting doubt on the notion that Trump could have lunged at the wheel of his car, given the layout of the presidential limousine known as “The Beast.” However, he was not riding in the beast; but in an SUV he often used.
Former security aide Tony Ornato relayed to her the details of what took place in Trump’s Secret Service vehicle, as she explained to the select panel.
Yet Hutchinson laid out a road map for the committee to test her own credibility. She showed that, time and again, she was a go-to for Trump backers looking to connect with Meadows and, ultimately, the former president himself.
McCarthy called her to vent about Trump’s rally speech on January 6, she recalled. Cipollone complained to her that White House aides could be on the hook for crimes if Trump traveled to the Capitol on Jan. 6, she said. And former national intelligence director John Ratcliffe told Hutchinson he was concerned about Trump’s effort to overturn the election, she testified.
Even when Hutchinson wasn’t dropping bombshells, she was helping paint a granular picture of Trump’s West Wing and how it operated. She described top officials as falling into three camps during the riot: those who pleaded with Trump to call off the rioters; those who stayed “neutral,” knowing that Trump didn’t want to act; and those who wanted to “deflect” blame for the violence away from Trump supporters.
Hutchinson described the layout of the West Wing, the way information flowed among officials in Trump’s chaotic offices, and the way Meadows was the connective tissue for Trump among a slew of disparate factions within his orbit.
Where the select committee goes from here is a bigger question now, Politico notes. Its chair, Representative Bennie Thompson (D-Mississippi), floated the possibility of calling then-White House Counsel Pat Cipollone in for a transcribed hearing. The former top Trump White House lawyer already has met informally with the panel but has not sat for the type of on-camera interview that many other former aides have.
The panel also plans to highlight the nexus between Trump’s orbit and the domestic extremist groups that seeded the Capitol riot—including the Proud Boys and Oath Keepers. And there’s likely to be a further public effort to reconstruct Trump’s movements on January 6, as he watched the violence unfold on TV, but took no actions to help quell the mob.
Research contact: @politico
June 29, 2022
Federal agents seized the cell phone of John Eastman—an attorney who advised former President Donald Trump how to overturn the results of the 2020 presidential election—Eastman said in a court filing on Monday, June 27, reports The Huffington Post.
Eastman filed a lawsuit asking the Justice Department to return his property and destroy any records it had obtained after FBI agents in New Mexico stopped him as he was leaving a restaurant last week. The investigators had a warrant and seized his iPhone, the filing says, and agents were able to access his email accounts.
He said in the filing that the agents “forced” him to unlock the device.
“By its very breadth, the warrant intrudes on significant privacy interests, both of [Eastman] and of others whose communications with him are accessible on the seized cell phone,” his attorneys wrote in the filing, obtained by The Hill.
Eastman was a key figure in developing a plan that would have seen Vice President Mike Pence delay or block certification of the 2020 Electoral College results, and his work has become a central focus of the House select committee investigating the January 6, 2021, insurrection at the U.S. Capitol. Pence refused to go along with the scheme.
Eastman also spoke at the January 6 rally just before the Capitol attack, where Trump falsely claimed that widespread election fraud had cost him the White House. There is no evidence to support those allegations.
The seizure of Eastman’s phone came the same day federal authorities searched the home of Jeffery Clark, a former Justice Department official under Trump who encouraged the then-president’s efforts to remain in office, despite his Electoral College loss to Joe Biden.
Clark had served in the Trump administration as assistant attorney general of the environment and natural resources division—but became close to the White House after the 2020 election. At one point, Trump mulled putting Clark in charge of the Justice Department after William Barr resigned after refusing to go along with Trump’s false claims of widespread voter fraud.
The House select committee focused heavily on Eastman’s efforts to aid Trump during its third hearing this month. The body, citing an email he sent to Trump attorney Rudy Giuliani, also noted that Eastman sought to be on the president’s “pardon list.”
Research contact: @HuffPost
June 28, 2022
There’s no great mystery as to when Representative Rodney Davis (R-Illinois) fell out of favor with the far-right. The House took up a bipartisan bill to create an independent January 6 commission, and the Davis was one of several GOP lawmakers to support it.
When redistricting in the state pushed Davis into a primary against fellow Representative Mary Miller (R-Illinois), Donald Trump backed the congresswoman, whom he saw as a more reliable ally. Indeed, the former president even held a rally in Illinois on Saturday, June 25, and Miller was invited to introduce Trump at the event.
U.S. Rep. Mary Miller immediately drew fierce backlash on social media and elsewhere at a Saturday night rally with former President Donald Trump when she credited him for the Supreme Court overturning Roe v. Wade calling it a “victory for white life.”
As a video of the event showed, the Illinois congresswoman said, with Trump right behind her, “I want to thank you for the historic victory for white life in the Supreme Court yesterday.” She then raised her arms to applaud, soliciting cheers from attendees, which soon followed.
It wasn’t long before a spokesperson for Miller insisted that she simply misspoke while reading from a prepared text. She meant to reference a “victory for right to life,” and instead pointed to a “victory for white life.”
Miller’s track record doesn’t exactly make it easy to give her the benefit of the doubt. Early last year, on literally her second day as a member of Congress, the Illinois Republican spoke at a conservative “Save the Republic” rally.
“Each generation has the responsibility to teach and train the next generation,” Miller said. “You know, if we win a few elections, we’re still going to be losing, unless we win the hearts and minds of our children. This is the battle. Hitler was right on one thing: He said, ‘Whoever has the youth, has the future.’ Our children are being propagandized.”
Initially, her office defended the comments, but when that proved unpersuasive, the GOP lawmaker apologized for approvingly quoting Hitler.
It was against this backdrop that the same Republican appeared at a Trump rally and accidentally thanked the former president for delivering a “victory for white life.”
Those in attendance for the rally nevertheless heard what the congresswoman actually said, and they found it worthy of applause.
Research contact: @MSNBC
June 27, 2022
On Friday, June 24, the U.S. Supreme Court struck down Roe v. Wade—eliminating the nearly 50-year-old constitutional right to abortion and handing states authority to drastically limit or ban the procedure, reports The Hill.
The political bulletin predicts that the 6-3 decision by a majority of conservative justices will “fundamentally reshape” American society by overturning the landmark 1973 precedent—and cautions that “it is certain to ignite a political firestorm and yield a complex patchwork of state laws that will effectively block large swathes of the population from terminating unwanted pregnancies.”
The ruling upholds Mississippi’s 15-week abortion ban, which directly clashed with Roe’s requirement that states permit abortion up to the point of fetal viability, around 24 weeks, as well as Planned Parenthood v. Casey, a 1992 decision that reaffirmed Roe’s core holding.
“Roe was egregiously wrong from the start,” Justice Samuel Alito wrote for the majority. “Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
He further noted, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
More than two dozen states, primarily in the South and Midwest, are expected to tighten abortion access as a result of Roe falling—including 13 states with “trigger bans” set to take effect automatically or through minimal effort by state officials.
For conservatives, the toppling of Roe marks the crowning achievement of a carefully orchestrated and well-funded movement that for decades has sought to elevate reliable allies to the Supreme Court and erase federal protections under Roe that conservatives have long considered an infringement of states’ rights.
Chief Justice John Roberts joined in the majority’s judgment but said he would have preferred a more incremental approach that would not have required overturning Roe and Casey outright.
“If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more,” the Chief Justice wrote in a concurring opinion. “Perhaps we are not always perfect in following that command, and certainly there are cases that warrant an exception. But this is not one of them.”
The blockbuster decision comes after a stunning breach of Supreme Court secrecy last month led to the public release of a draft version of the opinion, offering a glimpse at the coming dismantlement of abortion rights as well as the likely upheaval over a ruling that most Americans said they would oppose.
Research contact: @thehill
June 22, 2022
According to NBC, the race to succeed Shelby, who is retiring, had flummoxed former President Donald Trump, whose early endorsement of Brooks was consistent with what had been a close political alliance.
But Trump soured on Brooks, who had expressed a desire to move on from the 2020 election that Trump continues to falsely claim he won. Brooks, once an early favorite in the race, saw his poll numbers decline and Trump withdraw his endorsement.
Brooks ultimately rallied to earn a spot in the runoff against Britt, but she had long since become the GOP front-runner. Trump eventually endorsed her less than two weeks ago.
“Every single person who helped this campaign is a patriot who loves America, and I thank you for it,” Brooks posted on Twitter after the race was called Tuesday night. “This isn’t the outcome we wanted, but I am proud to have fought for our country. America, and you all, are worth it.”
“People across Alabama miss his America First agenda,” Britt added, “and we are going to go to the United States Senate to fight for it each and every day.”
Georgia, meanwhile, dealt another round of blows to Trump, whose endorsed House candidates in two districts were defeated in GOP primary runoffs Tuesday, NBC News projects. In the 6th Congressional District, Rich McCormick, a Marine veteran and emergency room doctor, beat Trump-backed Jake Evans. And in the 10th District, trucking company owner Mike Collins bested Trump favorite Vernon Jones.
Research contact: @NBCNews
June 22, 2022
Eric Greitens, the embattled former Missouri governor-turned-GOP Senate candidate, released a campaign ad on Monday, June 20 in which he and a group of armed men dressed in tactical gear burst into a home, supposedly hunting for RINOs (Republicans In Name Only), reports NBC News.
“We’re going RINO hunting,” a shotgun-toting Greitens, with a handgun holstered at his side, says before he bursts into a house with the men in tactical gear—one of whom throws what appears to be a flash-bang grenade.
“Get a RINO hunting permit. There’s no bagging limit, no tagging limit, and it doesn’t expire until we save our country,” he says at the end of the video, which encourages donors to pay $25 for a “RINO hunting” sticker.
Earlier in the video, Greitens, who resigned as governor in 2018 amid a sexual misconduct scandal and a campaign finance felony charge that was later dropped, says, “The RINO feeds on corruption and is marked by the stripes of cowardice.”
The video was posted on Greitens’ YouTube page, and he tweeted out a link to the ad. Hours after the tweet, Twitter put it behind a warning that said it “violated the Twitter Rules of abusive behavior” but that the site had “determined that it may be in the public’s interest for the Tweet to remain accessible.”
David Lapan, a retired Marine colonel and former Defense Department and Department of Homeland Security spokesperson, tweeted that Greitens, a former Navy SEAL, “has dishonored himself, his oath, and the Navy.”
“This clear call for violence against his political opponents, using military images, is depraved & dangerous,” he said.
“He is unfit for elected office & should be held accountable,” Lapan said.
The Missouri Democratic Party tweeted that the ad was “Disgusting. But not surprising.” It said it was another example of “violence, irresponsibility and reckless behavior from Greitens.”
Greitens’ campaign manager Dylan Johnson responded to the backlash by saying, “The response from America First voters to our groundbreaking ad has been overwhelming and supportive. Those who have an issue with the video and the metaphor are either lying or dumb. We believe Big Tech and its oligarchs are both.”
Research contact: @NBCNews
June 21, 2022
The Republican Party of Texas over the weekend adopted a resolution at its state convention that rejects President Joe Biden as the winner of the 2020 election–further aligning the state party establishment with former President Donald Trump in pushing false election claims, reports CNN.
Also, during the convention, Texas Senator John Cornyn, a lead GOP negotiator on bipartisan gun talks, was greeted by boos from his home-state crowd after he said he had “fought and kept President Biden’s gun-grabbing wish list off the table.”
Research contact: @CNN
June 20, 2022
Commission President Ursula von der Leyen said on Friday, June 17, that Ukraine should be welcomed by Europe.
The invitation comes shortly after some of the most powerful EU leaders traveled to Ukraine’s capital city of Kyiv in a show of solidarity with the war-ravaged country.
Serhiy Haidai, the head of Luhansk’s Regional Administration, says the number of Russian bombings in Ukraine is “rising daily.” Russian forces are continuing to launch ground assaults on the strategically important Donbas city of Severodonetsk in an attempt to establish control.
Kremlin spokesperson Dmitry Peskov said Ukraine’s membership in the European Union requires Russia’s attention. “The possible entry of Ukraine into the EU requires increased attention of the Russian Federation in connection with the discovery of defense affiliation,” he said, according to a Russian agency Interfax report, translated by NBC News.
“The decision to give Ukraine the status of a candidate for EU membership requires increased attention of Moscow,” Peskov said, according to the Russian agency RIA.
Peskov’s comments followed a meeting between European leaders and Ukrainian President Volodymyr Zelenskyy in Kyiv.
Research contact: @CNBC