Also: McHenry quits; Tuberville folds; DeSantis Never Back Down staffers back down; GOP officials indicted for 2022 election interference in AZ; GOP official's wife convicted on 52 counts of 2020 election fraud in IA...
And other examples of 'exactly what the government should be doing' -- EPA nixing all lead pipes; Int. funding firefighters, resilience; OPEC cuts supply; NY re-gags Trump; Biden's clean energy jobs, manufacturing boom...
Assault weapons bans are still not unconstitutional. For now.
By way of a 2 - 1 decision [PDF] last Friday, a three-judge panel of the U.S. 7th Circuit Court of Appeal has temporarily upheld an Illinois assault weapons ban.
The Illinois Act makes it "unlawful for any person [except "trained professionals" and "grandfathered individuals"] within Illinois knowingly to 'manufacture, deliver, sell or purchase…an assault weapon, assault weapon attachment, .50 caliber rifle, or .50 caliber cartridge." The Act expressly applies to the AR-15 and to high-capacity magazines.
The issue came before 7th Circuit via three consolidated cases: Bevis v. City of Naperville, Herrera v. Raoul and Barnett v. Raoul. In two of the cases, Bevis and Herrera, federal district court judges denied motions for the issuance of a preliminary injunction whereas the district court, in Barnett, granted a preliminary injunction.
The 7th Circuit decision, authored by Judge Diane Wood, a Clinton appointee, and joined by Judge Frank Easterbrook, a Reagan appointee, overturned the Barnett preliminary injunction upon the grounds that the plaintiffs in all three cases had failed to establish a strong likelihood of success on the merits. (Michael Brennan, a Trump appointee, dissented.)
In order to show a likelihood of success on the merits, the plaintiffs in each of these cases…have the burden of showing that the weapons addressed in the pertinent legislation are Arms that ordinary people would keep at home for purposes of self-defense, not weapons that are exclusively or predominantly useful in military service…
While it doesn't amount to a final determination on the constitutionality of the assault weapons ban deployed in the Land of Lincoln, at a time of unbridled carnage --- there have been more than 565 mass shootings in the U.S. over the first 10 months of 2023 --- the reasoning applied by the 7th Circuit majority offers a glimpse, at least, of sanity...
We've got a bit of a roller coaster today between good news and terrible news on today's BradCast. But that's life in the times of Trump and the coronavirus, I guess. [Audio link to full show is posted below.]
First up today, the COVID-19 crisis continues to gravely worsen in the U.S., with new record infections and hospitalizations now pretty much every day for the past month. Despite the increasingly desperate concerns expressed by health experts, especially for hotspots where Governors reopened states far too early, some Republicans from the President of the United States on down are calling for measures that will only increase infection rates, hospitalizations and, yes, death.
Florida's Education Commissioner Richard Corcoran on Monday, for example, declared that all public schools must reopen next month to all students for in-person classes five days a week. His emergency order notes that reopening schools is critical to "a return to Florida hitting its full economic stride". That, despite more than 200,000 confirmed cases and new record daily infection rates each day for weeks now in the Sunshine State.
At the same time, in Washington D.C. on Tuesday, Donald Trump held a White House event to demand the reopening of schools and to praise Florida's Governor Ron DeSantis for a "terrific job" in ordering them to open. Trump claimed that schools have been closed elsewhere for "political reasons" and added that "we are very much going to put pressure on Governors and everybody else to open the schools." This is now a death march being led by the President of the United States.
But if Republican politicians are fine sending children and their teachers and their families to their potential deaths, how do you think federal judges appointed by Trump or sympathetic to his political cause are going to react to measures being taken to try and make voting safer for Americans on November 3rd? We're joined again today by Slate's ace legal reporterMARK JOSEPH STERN to discuss Monday's opinions released by the U.S. Supreme Court, as well as a disturbing pattern of rulings at both SCOTUS and on the appellate level over the past two weeks that bodes darkly for this year's crucial Presidential election.
First, Monday's new opinions: The Court decided unanimously that states may prevent so-called "faithless electors" from casting their vote in the Electoral College for someone other than the Presidential candidate chosen by the state's popular vote. The issue stemmed from two combined cases of "faithless electors" in 2016, one of which was brought by plaintiff Michael Baca against Colorado. Baca appeared on The BradCast in December of 2016 to explain the reasons for his planned "faithless" vote in the Electoral College that year, before he was later prevented by the state from casting it.
While that opinion, written by Justice Elana Kagan received most of the media attention on Monday, another opinion handed down by the Court that day is likely of far greater import. The Court's 6 to 3 decision, with Justice Brett Kavanaugh writing for the majority in a case concerning robocalls made to cell phones, actually reveals some very encouraging news regarding a challenge to the Affordable Care Act (ACA or Obamacare) that will be heard next session by the Court. Kavanaugh's opinion, striking down one element of a robocall law as unconstitutional while upholding the rest of the law, suggests the challenge to Obamacare by GOP-controlled states and the White House --- seeking to strike down the entire health care law as unconstitutional based on the constitutionality of one single, now meaningless, provision --- is likely to fail.
As Kavanaugh crucially noted in his opinion, in words that will be remembered next year during the ACA case: "Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute."
"It's important to note that seven justices agreed with [Kavanaugh] on that particular point," Stern tells me. "Only Thomas and Gorsuch disagreed."
And with that seemingly very good news out of the way, we turn to a flurry of recent decisions by both SCOTUS and a number of federal appeals courts that are extremely concerning and revealing as to how right-wing controlled federal courts will be dealing with voter suppression cases and measures intended to make voting easier during the pandemic this November. Recent court rulings in cases out of Florida, Wisconsin, Alabama and Texas, as Stern explains, are very troubling indeed and suggest we could be in for no small amount of chaos, disenfranchisement and, yes, deadly disease, in this year's critical general elections.
There are more opinions to come from the Court before they are finished for the summer. Quips Stern darkly today: "We've got a handful left, and we will see if the Supreme Court breaks our democracy before the end of the term."
Finally, we close with Desi Doyen and our latest Green News Report, with a bit more news out of SCOTUS and lower federal courts, including some surprisingly very good news on several controversial oil and gas pipelines!...
While we post The BradCast here every day, and you can hear it across all of our great affiliate stations and websites, to automagically get new episodes as soon as they're available sent right to your computer or personal device, subscribe for free at iTunes, Pandora, TuneIn, Google, Amazon or our native RSS feed!
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On today's BradCast, the world and the U.S. Congress respond to Trump's bombing of Syria earlier this morning, even as Republicans in the Senate complete their unprecedented theft of the U.S. Supreme Court. In a related matter, an appellate court issues a landmark expansion of the Civil Rights Act. [Audio link to show is posted below.]
While many in the corporate media are joining a number of world leaders and members of Congress in celebrating Donald Trump's cruise missile attack on a Syrian air base days after an horrific chemical attack in the country, Russia is citing the action as a "significant blow" to U.S.-Russia relations and an act of "aggression" in violation of international law. Moreover, a number of Congress members, both Republican and Democratic from both chambers, are similarly citing Trump's attack as "an act of war" that is unlawful under the U.S. Constitution, as well as ill-considered and dangerous on several levels. Congress itself has now scuttled away for a two-week holiday recess, after refusing to even debate U.S. action in Syria more than 4 years, in the wake of some 400,000 deaths in the war-torn country.
At the same time, before heading home for the holidays, as the nation, the media and world were otherwise distracted today, Majority Leader Mitch McConnell and Senate Republicans finalized their historic judicial coup by confirming "Justice" Neil Gorsuch to the Supreme Court with a simple majority after unilaterally changing Senate rules to kill the right to filibuster SCOTUS nominees in the wake of their year-long refusal to hold a hearing or a vote for Barack Obama's nominee Judge Merrick Garland.
Then, following a landmark 8 to 3 bi-partisan Civil Rights Act ruling this week by the full 7th Circuit Court of Appeals (where most of the judges were appointed by Republicans and are considered quite conservative), Mark Joseph Stern, legal reporter for Slate, joins us to explain why he sees the decision as a precedent-setting "thunderbolt" for civil rights and the LGBTQ community.
The case involves a community college which was found sued for having discriminated against a woman in its employment practices on the basis that she was gay. The ruling, as Stern details, is the first time an appellate court has extended the Civil Rights Act to include protections against workplace discrimination on the basis of sexual orientation in addition to simply race and gender.
"What the 7th Circuit majority said was, look, it is logically incoherent to remove sexual orientation discrimination from the concept of sex discrimination. When an employer discriminates against a woman for dating another woman, he is discriminating against her explicitly on the basis of her sex. If she were a man dating a woman, then she would not face discrimination. If she were a woman dating a man, then she would not face discrimination. It is only because she is a woman and she is associating intimately with other women that she faces this kind of discrimination," Stern explains.
The case is likely to have broad national implications and will be "impossible to ignore" at the Supreme Court, says Stern. It's also important thanks to Reagan-appointed conservative Judge Richard Posner's opinion in which he argues that courts, as Stern short-hands it, "should interpret statutes in a manner that 'infuses' them 'with vitality and significance today' rather than relying on their original meaning. Posner contrasted this theory with the conservative 'originalism' championed by Justice Antonin Scalia." That is no small matter as it's being sung out by Posner, the Supreme Court's most cited federal jurist of the 20th century. (And, incredibly enough, even the far-right activist Judge Frank Easterbrook joined the majority in this case!)
Stern also discusses what we should expect when and if the case is heard by what he also considers to be a "stolen" Supreme Court in the wake of the GOP's illegitimate confirmation today of Gorsuch.
Finally, Desi Doyen joins us with the latest Green News Report with an unconscionable corporate media failure, and as the GOP-controlled U.S. House Science Committee shamefully uses McCarthy-esque tactics to put science itself on trial...
While we post The BradCast here every day, and you can hear it across all of our great affiliate stations and websites, to automagically get new episodes as soon as they're available sent right to your computer or personal device, subscribe for free at iTunes, Stitcher, TuneIn or our native RSS feed!
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The plaintiffs in One Wisconsin Institute v. Thomsen, one of several long-running court challenges to Wisconsin Republicans' strict Photo ID voting restriction, have filed an emergency petition with the full en banc U.S. 7th Circuit Court of Appeal, asking that it overturn its previous photo ID decision in Frank v. Walker.
The still pending Frank case as well as the One Wisconsin challenge have, to say the least, undergone a circuitous recent history in a number of federal courts that oversee Badger State election law.
In April 2014, after a lengthy trial, U.S. District Court Judge Lynn Adelman struck down and permanently enjoined Wisconsin's photo ID law after finding it in violation of both the 14th Amendment to the U.S. Constitution as well as the Voting Rights Act (VRA).
Republicans in control of the state naturally appealed that detailed and blistering ruling. The federal appeal was assigned to an all-Republican three-judge 7th Circuit panel, headed by Judge Frank H. Easterbrook. Easterbrook is a member of the radical right wing Robert Bork-founded, Koch Brothers-funded "Federalist Society". The ensuing decision to reinstate Wisconsin's photo ID law, despite Adelman's meticulous ruling in the lower court, was so extraordinarily partisan, factually deficient, riddled with errors and legally flawed that it prompted the ordinarily staid U.C. Irvine election law Prof. Rick Hasen to tweet: "I rarely just rant in my blog posts. But Judge Easterbrook caused me to blow a gasket."
Other members of the 7th Circuit were so troubled by Easterbrook's flawed opinion that they took the unusual move of granting a rehearing en banc on their own motion. Because of prior refusals by Congressional Republicans to fill a vacancy on the 7th Circuit with an Obama nominee, at that time of the court's motion there were only ten (10) jurists serving on the full 7th Circuit --- as opposed to the allotted eleven (11) judges. The ensuing 5-5 en banc ruling --- now referred to as Frank I --- left Easterbrook's horribly flawed ruling in place, effectively disenfranchising nearly 10% of Wisconsin's electorate who did not possess or have easy access to the very specific types of Photo ID now required by state Republicans to cast a vote. .
Last April, however, after a disastrous Presidential primary in Wisconsin, where, most visibly, student voters were forced into hours long lines on Election Day in hopes of obtaining a state approved photo ID that would allow them to vote under the GOP law, the Easterbrook panel handed down a decision that appeared designed to ameliorate the widespread disenfranchisement. The ruling --- now referred to as Frank II --- suggested that disenfranchised voters who lack the ability "to obtain a qualifying photo ID with reasonable effort" should be permitted to cast a regular ballot nonetheless.
On July 19, 2016, in what was thought to be compliant with the Frank II directive, the District Court issued a remedial injunction that mandated Wisconsin afford the right to cast a regular ballot to "those who cannot with reasonable effort obtain a qualifying ID", so long as they signed an affidavit to that effect at the polling place. Many, like The Nation's Ari Berman, celebrated, believing that the voting rights of Wisconsin's disenfranchised electorate had finally been restored.
That celebration, it now appears, proved both premature and an underestimate of the level partisan duplicity on the part of the three "radicals in robes" on the Easterbrook 7th Circuit panel...