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J. Michael Luttig is opposing Republican groups in one of the most momentous cases that the Supreme Court is considering this term.
The former judge is a surprising co-counsel to Neal Katyal, the well-known Supreme Court litigator. Katyal is a counsel of record in the case for several respondents, including Common Cause and the North Carolina League of Conservation Voters, that are opposing the far-right groups. The case is scheduled to be heard by the Court on December 7th. Luttig told me that he signed on as Katyal’s co-counsel because he regards Moore v. Harper as “without question the most significant case in the history of our nation for American democracy.” Putting it more colloquially, he said, “Legally, it’s the whole ballgame.”
Having such a well-known conservative former jurist argue against the election-law challenge may carry some weight with the conservative super-majority on the Court, several of whom have ties to Luttig that stretch back decades. Justice Clarence Thomas, for instance, was personally shepherded through his contentious Supreme Court confirmation hearings by Luttig in 1991. At the time, Luttig served as the Assistant Attorney General in charge of the Office of Legal Counsel in George H. W. Bush’s Justice Department. After Thomas was confirmed, Luttig himself was sworn in to a seat on the U.S. Court of Appeals for the Fourth Circuit at the age of thirty-seven; he became, at that moment, the youngest federal appellate judge in the country.
Luttig’s ties to Chief Justice John Roberts also go back years. The two worked closely together in the Reagan Administration as young lawyers, both under the tutelage of then White House counsel Fred Fielding, and again together as lawyers in the George H. W. Bush Department of Justice. Later, in 2005, George W. Bush considered them simultaneously for a seat on the Supreme Court, which ultimately went to Roberts. The following month, Bush again considered Luttig for a Supreme Court seat but chose Samuel Alito. After establishing a reputation as a hard-right standard-bearer in the mold of the late Antonin Scalia on the appeals court, Luttig became the general counsel of Boeing; in 2020, he retired.
The evolution of Luttig’s political role since then has been remarkable. While some might assume that he has abandoned his conservative views, his position is more of a reflection of the radical changes that have overtaken the Republican Party. A judge who once represented the far-right pole in jurisprudence now looks like a throwback to an earlier age of G.O.P. probity and restraint. Ordinarily, Luttig told me, he wouldn’t get involved in a case like this. But Moore v. Harper, he explained, is the natural outgrowth of the extraordinary behind-the-scenes role he played in the final Götterdämmerung days of the Trump Presidency.
On the evening of January 4, 2021, Luttig was asked to weigh in as an emergency outside legal expert to Vice-President Mike Pence, whom Trump was pressuring not to certify Biden’s Electoral College victory. Luttig emphatically advised the Pence team that the Vice-President had no choice. The Constitution clearly stated that the Vice-President’s only role was ceremonial. Luttig stressed that Pence had to certify the 2020 Electoral College vote, in defiance of Trump’s attempted coup. But, in the early morning of January 5th, as the pressure from Trump continued to rise, Pence’s advisers contacted Luttig. They told him, while he was holed up in his vacation home in Colorado, that he needed to share with the American public his view that, under the Constitution, Pence had to certify Biden’s Electoral College win.
A retired sixty-six-year-old lawyer stuck in Colorado at the time, Luttig recalled telling Pence’s lawyer, “I don’t even have a job right now. I’m unemployed. . . . I don’t have a fax machine.” Eventually, Luttig decided he would tweet, but he told me he had no idea how to do so. He called his son, who works in tech, but he was too busy to explain, so he sent him Twitter’s online instructions. Luttig’s tweet, when it finally posted, was published on the Times Web site, and later quoted by Pence in his letter to Congress on January 6th, leading to the historic standoff between the President and Vice-President. Luttig’s role was crucial because of his unique standing. The lawyer who had improperly advised Trump that Pence had the legal power to delay, and perhaps overturn, the election, was one of Luttig’s own former law clerks: John Eastman. Eastman’s rogue legal theory was based, in part, on a fringe-right reading of the Constitution called the independent-state-legislature theory. Its proponents, including Eastman, claimed that state legislatures had the authority to reject the results of the 2020 election that were certified by other state officials and the courts. It wasn’t lost on those involved at the time that the majority of state legislatures were dominated by Trump’s Republican Party.
“The independent-state-legislature theory was the centerpiece of the former President’s effort to overturn the 2020 election,” Luttig told me. “In advising Vice-President Pence on January 6th, I concluded that there was no such doctrine of constitutional interpretation.” Luttig added, “From that day, I have believed I had an obligation to the country to explain the reasons for that conclusion. Namely, there is literally no support at all in the Constitution.” In fact, Luttig said, the theory is “antithetical to the Framers’ intent, the text, and the Constitution’s fundamental design and architecture.”
Since then, Luttig has, in a scholarly, judicious way, continued to sound the alarm. Last June, Luttig surprised many who had dismissed him as a Republican partisan by publicly testifying to the House select committee investigating the January 6th riot that Trump and his apologists posed a “clear and present danger” to American democracy.
Among those who were impressed by Luttig’s testimony was Katyal. As a counsel of record in Moore v. Harper, Katyal declined to comment. But, last winter, Katyal said on MSNBC, “There’s a good argument that Judge Luttig, by not being on the Supreme Court, did more for our democracy than most any sitting Supreme Court Justice or past one. It’s a remarkable, amazing thing.” The two lawyers had a mutual friend, and soon began to talk about collaborating if the right case presented itself. Moore v. Harper was that opportunity. “It was meant to be,” Luttig told me.
As Luttig explained it, the case potentially threatens the way that American elections are decided. Moore v. Harper involves another iteration of the fringe independent-state-legislature theory, which holds that both the Elections and Electors clauses of the Constitution give state legislatures near unilateral power to manage elections. As I wrote last year in this magazine, the theory is grounded in a little-noticed concurring opinion written by three conservative Justices, including Thomas, in the Supreme Court’s Bush v. Gore decision in 2000. It was ignored for the most part until Trump’s allies tried to use it in their frantic efforts to overturn the 2020 election. Proponents of the far-right theory claim that state legislatures, which are among the country’s most disproportionately partisan bodies, have nearly unchecked power to gerrymander districts, and to choose their state’s electors in Presidential elections.
Advocates of the theory argue that neither the state courts nor the state constitutions have the power to rein in the state legislatures. If a state legislature deems a Presidential election flawed, they have the right to unilaterally overturn the popular vote in the state and award its Electoral College votes to the candidate of their choice. If the Supreme Court were to fully embrace the most radical form of the independent-state-legislature theory, it would shift power over federal elections to partisan majorities in the state legislatures. Ultimately, only the Supreme Court would be in the position to judge whether such legislative power grabs were legal.
In the waning days of the Trump Administration, Trump allies tried to bring several legal challenges based on the independent-state-legislature theory to the Supreme Court. The Court rejected their arguments, but three conservative justices—Samuel Alito, Neil Gorsuch, and Clarence Thomas—expressed interest in hearing more about the theory in the future. Justice Kavanaugh, too, has expressed some interest. Their stance added credibility to what was largely regarded by election-law experts as a dangerously radical idea. As Nathaniel Persily, an election-law expert at Stanford, told me in 2021, “It’s giving intellectual respectability to an otherwise insane, anti-democratic argument.”
Last winter, North Carolina’s state supreme court struck down grossly gerrymandered districts drawn by Republicans in the state legislature. Republican legislators then appealed to the U.S. Supreme Court, arguing that the state court did not have the power to intervene, under the independent-state legislature theory. To the horror of many election-law experts, at least four members of the Supreme Court, whose names were not disclosed, agreed to hear the case, setting the stage for this term’s historic argument. Since then, myriad Republican and conservative groups—including the Republican National Committee; the Claremont Institute’s Center for Constitutional Jurisprudence; the Trump-linked America First Legal Foundation; Citizens United; the American Legislative Exchange Council; the Public Interest Legal Foundation; and the Honest Elections Project, which has been linked to Leonard Leo, of the Federalist Society—have filed amicus briefs siding with the North Carolina Republican legislators.
Luttig, undeterred, praised his new legal bedfellows. “I’m honored to be co-counsel representing Common Cause in Moore v. Harper,” he told me. He described Katyal as a “dear friend,” and “one of the very finest Supreme Court advocates and originalist constitutional scholars in the country today.” As for the case, Luttig said, “Common Cause and the other respondents are not only on the side of the Constitution of the United States—they are also on the side of the angels.”
The 5th Circuit Court has ruled that the Federal Reserve's funding of the Consumer Financial Protection Bureau is unconstitutional. (photo: Timothy A. Clary/Getty)
Republican attorneys have attempted to dismantle the CFPB from the moment Congress created it in response to the 2008 financial crash. The agency protects consumers against exploitative fraud and deceit in home mortgages, credit cards, consumer loans, and retail banking. It has taken special interest in payday lenders, which are notorious for issuing predatory loans—with sky-high interest and hidden fees—to customers who will never be able to pay them off.
In 2017, the CFPB issued a rule to halt a common practice among payday lenders: repeatedly attempting to withdraw money from a borrower’s account after it becomes obvious that there are insufficient funds. Each failed attempt incurs a slew of fees for the borrower that add up to hundreds of dollars. Lenders may try as many as 11 withdrawals in one day, or split payments into multiple withdrawals, to maximize their profits—long after they discover the borrower cannot pay. This behavior is exactly the kind of scam that Congress directed the CFPB to combat. So the agency barred lenders from trying to withdraw further payment after two consecutive attempts have failed due to insufficient funds.
Predictably, payday lenders fought back, asking the federal courts to block the rule. They were represented by Jones Day, the GOP-aligned law firm whose lawyers flooded the judiciary and executive branch under Trump. Jones Day argued that the new rule exceeded the CFPB’s statutory authority. But it also mounted a more ambitious argument: The entire agency, it claimed, is unconstitutional. Why? Because the CFPB is funded independently: Rather than relying on an annual appropriation from Congress, it draws its budget from the Federal Reserve—which, in turn, is primarily funded by interest earned on securities. This independent funding of the CFPB, Jones Day said, violates the constitutional separation of powers, and renders the agency’s work illegal.
This is actually the second effort to declare the entire CFPB unconstitutional. The first effort challenged a provision of Dodd–Frank, the law that created the Bureau, which gave the agency’s director a five-year term and barred the president from firing them. Republican lawyers argued that this protection against removal infringed on the separation of powers in 2020, the Supreme Court agreed by a 5–4 vote. But it also rejected Republicans’ solution—the destruction of the CFPB by judicial fiat. Instead, the court simply granted the president authority to fire the CFPB director and left the agency otherwise intact.
So Jones Day is trying again. Its lawyers seized upon the payday lender rule to challenge the CFPB’s independent funding. They knew the 5th Circuit would be receptive, since seven judges have already professed their belief that the agency is unconstitutional. And sure enough, a three-judge panel of Trump appointees—Cory Wilson, Kurt Engelhardt, and Don Willett—effectively struck down the entire agency on Wednesday in a unanimous opinion by Wilson.
Their reasoning is not just bizarre; it is utterly nonsensical, and flatly foreclosed by precedent. Wilson zeroed in on the Constitution’s appropriations clause, which states that “no money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” The CFPB, he noted, is not funded through annual appropriations bills, but through money drawn from the Federal Reserve, pursuant to a formula set by Congress. This “perpetual insulation from Congress’ appropriations power,” he insisted, is illegal; it renders the agency “no longer dependent and, as a result, no longer accountable to Congress and, ultimately, to the people.” An “innovation with no foothold in history or tradition,” he concluded, “cannot be reconciled with the appropriations clause and the clause’s underpinning, the constitutional separation of powers.”
At least seven other federal courts have already considered and rejected this argument, and it’s easy to see why. Many other financial regulators are funded outside annual appropriations, including the Federal Reserve, the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, the National Credit Union Administration, and the Federal Housing Finance Agency. If the CFPB’s funding is unlawful, then all those agencies are constitutionally suspect, too. But they are not, because, as the Supreme Court has explained, the appropriations clause “simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.” It does not require funding to arrive in an annual bill that Congress stamps with the label “appropriations.” In the Supreme Court’s words, the Constitution merely requires funding to be “authorized by a statute”—not specifically the annual appropriations bill, but any duly enacted law.
So where did Wilson get the idea that the Constitution requires a single, specific method of appropriations? He made it up. The Supreme Court has never leveraged the appropriations clause to restrict a funding scheme authorized by Congress, or to restrict an agency’s authority. It has never even hinted at the notion of some constitutional limit on agency funding outside of annual appropriation bills. To the contrary, SCOTUS has affirmed Congress’ broad latitude to decide how agencies receive their budget. Absent any supportive precedent, Wilson resorted to pure partisan howls, quoting the Founding Fathers’ sweeping rhetoric about “elective despotism” and “political liberty.” But emotional appeals to the founding principles, framed in the broadest possible terms, is no substitute for precedent and logic.
In fact, many of Wilson’s cherrypicked quotes about Congress’ “exclusive power over the federal purse” actually cut against his reasoning. Not once does he consider the fact that he is encroaching upon that “exclusive power” by striking down a funding process enacted by Congress. He never considers the possibility that he himself is violating the separation of powers by vetoing an ongoing appropriation authorized by statute. While purporting to defend Congress’ constitutional prerogatives, Wilson—an unelected, life-tenured judge—is seeking to seize them for himself.
To make matters worse, Wilson expressly rejected the minimalist approach that SCOTUS has demanded after finding that an agency is unconstitutionally structured. He held that the CFPB could not enforce the payday rule—or, by extension, any other regulation, since every single action rests on the “improper use of unappropriated funds.” The agency will surely appeal, asking the Supreme Court to restore its enforcement authority. And the court may well put the decision on hold. But in the meantime, anyone penalized by the CFPB can just ask a court to throw out the entire case against them. The 5th Circuit has taken the astonishing and unprecedented step of essentially obliterating an entire federal agency tasked with regulating a significant segment of the national economy.
Even on this Supreme Court, that step is probably a bridge too far—especially since it augurs future decisions hobbling almost every other financial regulator. SCOTUS already had an opportunity to blow up the CFPB. It declined. Unless the justices want the 5th Circuit to eradicate the federal government’s ability to prevent another crash, they have an obligation to reverse Wednesday’s garbled, lawless ruling.
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Rep. Alexandria Ocasio-Cortez responded to former vice president Mike Pence who said Republican majorities will soon pass anti-abortion legislation. (photo: Getty)
The spat between Pence and Ocasio-Cortez spurred from President Biden’s announcement on Tuesday that the first bill he will send to Congress if Democrats hold their majorities in both chambers next month is legislation to codify the Roe v. Wade ruling on abortion rights.
Pence, in a tweet on Tuesday night, said Congress will be controlled by “Pro-Life majorities” next year that will block access to the procedure.
“I’ve got news for President Biden. Come January 22nd, we will have Pro-Life majorities in the House and Senate and we’ll be taking the cause of the right to Life to every state house in America!” Pence wrote.
Ocasio-Cortez fired back at Pence on Wednesday night, writing on Twitter, “And I’ve got news for you: Absolutely no one wants to hear what your plan is for their uterus.”
The exchange comes in the final stretch before the midterm elections, which will determine the breakdown of the House and Senate for the next two years.
Democrats have sought to make abortion a prime focus on the campaign trail after the Supreme Court overturned Roe v. Wade in June, while Republicans have sought to make the economy and rising inflation central to their bids.
Those on the left expressed outrage at the Supreme Court’s ruling over the summer, while many on the right celebrated the move. Pence, shortly after the bench published its decision, said the bench “righted a historic wrong,” and called for all states to ban abortion.
The former vice president is one of many Republicans seen as potential presidential candidates in 2024. Some see his recent activities as preparing for a future bid, including delivering speeches on his perspective for the future of conservatives and taking trips to states that host early primaries and caucuses, including Iowa, New Hampshire and South Carolina.
Pence has also encouraged the party to focus on its future rather than the past — a veiled push to move away from former President Trump.
Asked on Wednesday if he would support Trump should he run for president in 2024, Pence responded, “Well, there might be somebody else I prefer more.”
Democrats are favored to retain their majority in the Senate but lose their edge in the House, according to FiveThirtyEight.
On Tuesday, Biden promised that if Democrats can retain control of both chambers next month, the first issue he would tackle is abortion rights.
“In these midterm elections, it’s so critical to elect more Democratic senators to the United States Senate and more Democrats to keep control of the House of Representatives,” Biden said in remarks at the Howard Theatre in Washington, D.C.
“And, folks, if we do that, here is the promise I make to you and the American people: The first bill that I will send to the Congress will be to codify Roe v. Wade. And when Congress passes it, I’ll sign it in January, 50 years after Roe was first decided the law of the land,” he added.
The House passed two bills aimed at protecting access to abortion in July, but they have since stalled in the Senate because of Republican opposition.
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Amnesty International and other rights groups have accused Israel of committing apartheid against Palestinians. (photo: Jaafar Ashtiyeh/AFP)
Arkansas anti-BDS law infringes on freedom of expression granted by US Constitution, rights group tells Supreme Court.
The American Civil Liberties Union (ACLU) filed a petition on Thursday asking the top court to take up the case, arguing the Appeals Court decision violates the First Amendment of the US Constitution, which protects the right to free speech.
“When a state singles out particular boycotts for special penalties, as Arkansas has done here, it not only infringes the right to boycott — it also transgresses the First Amendment’s core prohibition on content and viewpoint discrimination,” ACLU lawyers wrote in their filing.
In June, the appeals court ruled in favour of the law, saying boycotts fall under commercial activity, not “expressive conduct” guaranteed by the First Amendment.
The law follows similar measures passed by dozens of US states to curtail the Boycott, Divestment and Sanctions (BDS) movement, which pushes to pressure Israel through non-violent means to end abuses against Palestinians.
Several rights groups, including Amnesty International and Human Rights Watch, have said Israel’s treatment of Palestinians amounts to apartheid.
The Arkansas case started in 2018 when The Arkansas Times, a publication in the city of Little Rock, sued the state after refusing to sign a pledge not to boycott Israel to win an advertising contract from a public university.
The law requires contractors that do not sign the pledge to reduce their fees by 20 percent.
A federal district court initially dismissed the lawsuit but a three-judge appeals panel blocked the law in 2021, ruling it violates the First Amendment. In June, a full appeals court reversed the panel’s decision, essentially reviving the law.
The Supreme Court is the final level of appeal and review in the US judicial system. If the top court refuses to take up the case, the appeals court’s decision will stand.
The nine-seat Supreme Court has a conservative majority with three justices appointed by former President Donald Trump, a staunch supporter of Israel.
Rights advocates have warned that anti-boycott measures do not only push to unconstitutionally silence Palestinian rights activism but also threaten free speech rights in general — and are being used to restrict boycotts of other entities, including the fossil fuel industry.
Brain Hauss, a senior staff lawyer with the ACLU, said the June decision to uphold the anti-BDS law in Arkansas “badly misreads” legal precedents and withdraws protection for freedoms exercised by Americans for centuries.
“Worse yet, the decision upholds the government’s power to selectively suppress boycotts that express messages with which the government disagrees,” Hauss said in a statement on Thursday.
“The Supreme Court should take up this case in order to reaffirm that the First Amendment protects the right to participate in politically-motivated consumer boycotts.”
Americans for Peace Now (APN), an advocacy group that describes itself as pro-Israel and pro-peace, also called on the Supreme Court to review the ruling.
“A Supreme Court decision on this case, if it decides to take it up, could have broad repercussions in the United States and beyond,” APN President Hadar Susskind said in a statement.
“We hope the Court discusses the matter and rules that states have no business imposing conditions on the free speech rights of individuals, organizations and companies. You may support or oppose boycotting Israel or the occupation, but as a government you must not impose your opinion on others or sanction them for their views.”
Anti-BDS laws often restrict boycotts of Israel as well as any Israeli-occupied territories. Last year, several US states threatened sanctions against Ben … Jerry’s after the ice cream company decided to stop doing business in the occupied Palestinian West Bank.
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Labour in the U.S. prison system has been criticized as a legacy of slavery. (photo: Luxy Nicholson/Reuters)
Nationwide push to change rules on prison labour leads to ballot measures as US struggles to face legacy of slavery.
None of the proposals would force immediate changes inside the states’ prisons although they could lead to legal challenges related to how they use prison labour, a lasting imprint of slavery’s legacy on the entire country.
The effort is part of a national push to amend the 13th Amendment to the US Constitution, which bans enslavement or involuntary servitude except as a form of criminal punishment. That exception has long permitted the exploitation of work performed by convicted felons.
“The idea that you could ever finish the sentence, ‘Slavery’s okay when …’ has to rip out your soul, and I think it’s what makes this a fight that ignores political lines and brings us together because it feels so clear,” said Bianca Tylek, executive director of Worth Rises, a criminal justice advocacy group pushing to remove the amendment’s convict labour clause.
Nearly 20 states have constitutions that include language permitting slavery and involuntary servitude as criminal punishments. In 2018, Colorado was the first to remove the language from its founding frameworks by ballot measure, followed by Nebraska and Utah two years later.
In November, versions of the question go before voters in Alabama, Louisiana, Oregon, Tennessee and Vermont.
State Senator Raumesh Akbari, a Democrat from Memphis, was shocked when a fellow lawmaker told her about the slavery exception in the Tennessee Constitution and immediately began working to replace the language.
“When I found out that this exception existed, I thought, ‘We have got to fix this, and we’ve got to fix this right away,’” she said. “Our constitution should reflect the values and the beliefs of our state.”
Constitutions require lengthy and technically tricky steps before they can be tweaked.
Akbari first proposed changes in 2019. The Republican-dominated General Assembly had to pass the changes by a majority vote in one two-year legislative period and then pass them again with at least two-thirds approval in the next. The amendment could then go on the ballot in the year of the next gubernatorial election.
Akbari also had to work with the state Department of Correction to ensure that inmate labour wouldn’t be prohibited under her proposal.
The language going before Tennessee voters is: “Slavery and involuntary servitude are forever prohibited. Nothing in this section shall prohibit an inmate from working when the inmate has been duly convicted of a crime.”
“We understand that those who are incarcerated cannot be forced to work without pay, but we should not create a situation where they won’t be able to work at all,” Akbari said.
Similar concerns over the financial impact of prison labour led California’s Democratic-led State Legislature to reject an amendment eliminating indentured servitude as a possible criminal punishment after Governor Gavin Newsom’s administration predicted it could require the state to pay billions of dollars at minimum wage to prison inmates.
Prisoners around the country earn a tiny fraction of the minimum wage if anything at all. Many are paid only pennies per hour.
Scrutiny over prison labour has existed for decades, but the 13th Amendment’s loophole in particular encouraged former Confederate states after the Civil War to devise new ways to maintain the dynamics of slavery.
They used restrictive measures known as the “Black codes”, because they nearly always targeted African Americans, to criminalise benign interactions such as talking too loudly or not yielding to whites on the sidewalk. Those targeted would end up in custody for minor actions, effectively enslaving them again.
Fast forward to today: The low pay of incarcerated workers isn’t expected to change if the ballot measures succeed. Inmates who refuse to work may be denied phone calls or visits with family, punished with solitary confinement and even be denied parole.
Alabama is asking voters to delete all racist language from its constitution and to remove and replace a section on convict labour that’s similar to what Tennessee has had in its constitution.
Vermont often boasts of being the first state in the nation to ban slavery in 1777, but its constitution still allows involuntary servitude in a handful of circumstances. Its proposed change would replace the current exception clause with language saying, “Slavery and involuntary servitude are forever prohibited in this State.”
Oregon’s proposed change repeals its exception clause while adding language allowing a court or probation or parole agency to order alternatives to incarceration as part of sentencing.
Louisiana is the only state so far to have its proposed amendment draw organised opposition over concerns that the replacement language may make matters worse. Even one of its original sponsors has second thoughts; Democratic Representative Edmond Jordan told The Times-Picayune/The New Orleans Advocate last week that he’s urging voters to reject it.
The nonprofit Council for a Better Louisiana warned that the wording could technically permit slavery again as well as continue involuntary servitude.
Louisiana’s Constitution now says, “Slavery and involuntary servitude are prohibited, except in the latter case as punishment for a crime.” The amendment would change that to, “Slavery and involuntary servitude are prohibited, (but this) does not apply to the otherwise lawful administration of criminal justice.”
“This amendment is an example of why it is so important to get the language right when presenting constitutional amendments to voters,” the nonprofit group said in a statement urging voters to choose “no” and lawmakers to try again. It points to Tennessee’s ballot language as a possible template.
Supporters of the amendment say such criticisms are part of a campaign to keep exception clauses in place.
“If this doesn’t pass, it will be used as a weapon against us,” said Max Parthas, state operations director for the Abolish Slavery National Network.
The question stands as a reminder of how slavery continues to bedevil Americans, and Parthas says that’s reason enough to vote yes.
“We’ve never seen a single day in the United States where slavery was not legal,” he said. “We want to see what that looks like and I think that’s worth it.”
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Hillsborough High School students protest Florida's "Don't Say Gay" bill in Tampa, Florida, U.S., March 3, 2022. (photo: Octavio Jones/Reuters)
Measure introduced in Congress would prohibit federal money from being used to teach children under 10 about LGBTQ issues
The bill would prohibit the use of federal funds to teach children about “sexually-oriented material” as well as “any topic involving gender identity, gender dysphoria, transgenderism, sexual orientation, or related subjects”. The effects of such a law, if enacted, would be far-reaching since a range of institutions – schools, libraries, among them – receive public money.
The bill also gives parents the ability to sue in federal court if their child is exposed to the barred material that is funded “in whole or in part” by federal funds.
The bill was introduced by Mike Johnson, a Louisiana Republican, and 32 other GOP members of Congress.
“The Democrat party and their cultural allies are on a misguided crusade to immerse young children in sexual imagery and radical gender ideology,” he said in a statement. “This commonsense bill is straightforward. No federal tax dollars should go to any federal, state, or local government agencies, or private organizations that intentionally expose children under 10 years of age to sexually explicit material.”
The bill is unlikely to become law while Democrats control the US senate and White House, but it underscores how Republicans have zeroed in on anti-LGBTQ issues as a way of rallying their base.
Earlier this year Florida’s governor, Ron DeSantis, signed a law that barred schools from teaching about sexual orientation or gender identity until third grade, “or in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards”.
More than a dozen states introduced so-called “don’t say gay” bills this year.
Republicans have also targeted drag shows as part of this anti-LGBTQ effort. Idaho lawmakers will reportedly consider a measure to ban drag shows in public.
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Colombia's former president, Iván Duque, leaves many environmental challenges for his successor, Gustavo Petro. (photo: AFP)
But others, such as former minister Manuel Rodríguez, consider Duque’s deforestation policies a failure. Deforestation of 700,000 hectares (1.7 million acres) during his four-year term was 5% higher than during the second term of his predecessor, Juan Manuel Santos. Gustavo Petro, who took office in August, promised to make reducing deforestation one of the priorities of his administration.
Forest loss is just one of the many issues highlighted by experts, environmental organizations and former officials interviewed for this article, which analyzes the challenges the Duque government leaves behind for Petro.
Future challenges of deforestation
Rodríguez, who served as environment minister from 1993-1994 under then-president César Gaviria, was blunt in his evaluation: Over the past eight years, Colombia has failed in the fight against deforestation. “To say it was very successful, when what really happened was we kept deforestation at between 170,000 and 180,000 hectares [420,000 to 445,000 acres] annually, is a resounding failure. With that performance, it’s impossible to reach the goal of zero deforestation by 2030.”
Nicola Clerici, a deforestation researcher at the University of Rosario and considered one of the most important biologists of the Andean-Amazonian region, also questioned the figures presented by the former administration, including the ministry’s Institute of Hydrology, Meteorology and Environmental Studies (IDEAM).
“IDEAM’s model for future deforestation scenarios is like a black box,” Clerici said. “It isn’t easy to understand how it was constructed and what the associated intervals of uncertainty are. Former minister Correa said, ‘We contained deforestation [in 2011],’ but I wouldn’t be too happy. The figures are very high.”
One way the Duque government tried addressing deforestation was with a plan to plant 180 million trees, announced in 2019. It managed to plant 143 million trees, or 80% of its goal.
According to Rodríguez, the program has its flaws. First, he said, combating deforestation should take priority over planting. “Yes, I believe the priority, if a country has scarce resources (like Colombia), should be to focus entirely on combating deforestation. Because the loss of the Amazon or other healthy forests is irreversible. Some restoration can be done but the forest that is restored isn’t going to be the same as what was once there.” He also said planting shouldn’t be a priority in areas with the worst deforestation or forests in danger of extinction. Silvia Gómez, director of Gaia Amazonas, pointed out that the number of trees planted is much lower than the number of deforested trees
In 2019, Duque announced what would be his main anti-deforestation policy: Operation Artemisa, involving the military. But at the close of his government, the impact of the operation has been limited, according to experts. “Operation Artemisa hasn’t hit the big deforesters, which have political connections in the territory. They’ve gone for the small land invaders, who are responsible but to a lesser extent,” Clerici said.
Gómez said the punitive approach behind Operation Artemisa wasn’t enough. “It requires differentiated, preventive actions that prioritize coordination between Indigenous communities and people overseeing deforestation. Otherwise, it doesn’t attack the origin of the problem.”
The operation has also raised questions about possible human rights violations. Carlos Garay, technical secretary of the National Human Rights Commission of Indigenous Peoples and leader of the National Organization of Indigenous Peoples of the Colombian Amazon (OPIAC), told Mongabay Latam that Operation Artemisa targeted Indigenous communities. “Operation Artemisa has captured an Indigenous governor. He’s still in jail. President Duque said he was the biggest deforester in San Vicente del Caguán.”
Now, fixing the problem falls on President Petro. Deforestation is without a doubt a huge challenge, Rodríguez said, which is why he recommended that the new government start by “carefully examining its causes as well as the weaknesses of anti-deforestation policies of the Duque and Santos governments. The new government’s advantage is that, for the first time in years, people in the ministry [of environment] know what they’re doing.”
Rodrigo Botero, director of the Foundation for Conservation and Sustainable Development, told Mongabay Latam that, given the role cattle ranching and land grabbing play in the deforestation of the Colombian Amazon, the new government needs to promote the monitoring of Colombian cattle supply chains. “It’s the possibility of monitoring the meat and dairy supply chains, from their place of origin to their final destination in the commercial chain, which allows us to know if at any time deforested areas were used.” With this in mind, Congress members Juan Carlos Losada and Julia Miranda have introduced bills to improve traceability in the livestock industry.
Unprotected areas?
A week before the end of his term as environment minister, Carlos Correa tweeted: “Colombia has more than 30% of its marine and terrestrial areas protected and conserved.” This fulfilled the promises Duque made to the United Nations Convention on Biological Diversity, which requires every country to protect at least 30% of its water and land.
However, Rodríguez questioned those figures. “It’s true that Colombia has already met its goal for the year 2030 for maritime areas. But on land, the areas that were created [to meet the claimed 30%] were complementary areas, which is different from protected areas. In Colombia, the only protected areas are national natural parks and sanctuaries for flora and fauna. It’s a farce.”
Mongabay Latam also spoke with Sandra Bessudo, former adviser to Santos for environmental management, biodiversity, water and climate change. She welcomed the expansion of protected maritime areas. “There are areas that, for me, should have been created as no-fishing zones that were left as fishing zones. A great effort was put into expanding marine protected areas and obtaining financial resources to support their implementation. The implementation, that challenge, is up to the Petro government and the environmental entities, particularly the national parks [system],” Bessudo said.
Rodríguez said he has doubts about their implementation. “There’s little control in Colombia over [protected] areas. In the coastal areas, there’s very insufficient management of the control and surveillance of fishing. Who is going to monitor these marine areas? With what resources? I believe that the president [Duque], in order to show results, rushed to create all the marine areas and that that, strategically, was a mistake.”
Although expanding protections of land areas is a good thing, Clerici said, there’s a concern that much of the protections exist only on paper. “We think, for example, that in Tinigua National Natural Park, with its recent high rates of deforestation, nobody is controlling it effectively. And there are similar confirmed situations in Catatumbo [national park] and Sierra de la Macarena, among others. They aren’t investing in effective park management.”
That’s why the topic of protected areas presents important challenges for the incoming government. Rodríguez said control is an important starting point: “They must ensure state control over national parks. Today, that doesn’t exist in at least nine of the 11 natural parks in the Amazon. There isn’t a government presence because subversive forces pushed them out.”
Protection of social leaders and environmental defenders
According to experts, the Petro government started off on the right foot with its policies on protecting environmental defenders. Before Petro’s inauguration, the Senate approved the Escazú Agreement, a regional pact to protect environmental defenders. Under the Duque government, Congress had rejected the agreement.
And on Aug. 27, Petro’s government announced the first Unified Command Post for Life in Cauca, a joint initiative to reduce violence against social leaders organized by the executive and legislative branches of government, the police, military, the Regional Indigenous Council of Cauca, the Prosecutor’s Office and the Ombudsman’s office.
Policies to protect environmental defenders were also developed with the help of civil society. An emergency plan, spearheaded by the organization Somos Defensores, was recently approved by the government. Mongabay Latam reached out to the coordinator of Somos Defensores, Lourdes Castro, who said she’s hopeful about the new government and the possibility that social leaders will regain confidence in its institutions.
A lot of trust in the government was lost during Duque’s term. Between 2016 and 2022, according to Indepaz, a peace and development studies institute, the country saw 1,341 aggressions against social leaders, 329 killings and 337 attacks on signatories of the 2016 peace agreement that ended Colombia’s long-running guerrilla conflict.
“During Duque’s four years, spaces for dialogue about these issues were left on the wayside,” Castro said. “There wasn’t fluid dialogue with the government to jointly analyze the situation and the measures that should be taken. Additionally, control bodies were in some ways taking the side of the government. I’m talking about the Prosecutor’s Office, the Attorney General’s Office and the Ombudsman’s Office. A behavior of denial of the situation was adopted by the authorities.”
Castro also criticized the focus on military strategies. “During the last government, the response was militarization. In many cases, that tends to lead to increased risks and the vulnerability of leaders rather than their protection.”
But she said she has hopes for the new government. “The Petro government is going to work with representatives of social organizations, in prioritized territories, with Indigenous and Afro-Colombian authorities. For example, Indigenous guards should be included in action plans,” Castro said.
In fact, some of the strongest defenders of the environment and forests in Colombia are Indigenous communities. Indigenous leader Carlos Garay of OPIAC had this to say about the Duque government: “As Amazonian peoples, we watched with great concern the lack of protections of Indigenous territories and their leaders during the Duque government. The Amazonian Indigenous people are considered protectors of the Colombian Amazon … but they were practically unknown by the previous government. There wasn’t a protection strategy.”
Garay also pointed to the number of Indigenous people who were killed or threatened. “We had a teacher who was killed in Caquetá, more than 12 Indigenous companions killed in Putumayo, including the governor of the Kichwa peoples killed in the village of Alto Remanso, in Puerto Leguízamo, in an apparent extrajudicial killing. Four Awa companions were killed in the town of Nariño, who have also been victims in Putumayo. Another Awa companion who was disappeared by the same public forces. In total, in the Amazon, there were 13 people killed.” He also noted Indigenous communities that had been confined by order of illegal armed groups.
Garay said Indigenous groups have expectations of their own for the new government. “We’re hopeful. They have to establish a policy for protecting the environment, consolidating a working strategy between the government and Indigenous peoples.”
Environmental crimes
Garay also spoke out against the previous government’s failure to contain illegal mining in the Colombian Amazon, particularly in Inírida, Guainía department. “The illegal mining in those territories has increased and there really wasn’t a state policy to combat illegal mining. We don’t know what the government’s intention was. The military operations were always against traditional mining. But efforts against large-scale mining never happened. It hurt the Indigenous territories significantly.”
Rodríguez also said the Duque government didn’t improve the problem, but added this had to do with a regional problem that was made worse by the ever-rising international price of gold. “Very little progress was made. You have to recognize that the problem is out of control in Latin America in general. You can find the same problems in Peru, in Brazil. It’s a highly profitable activity and, unlike coca, can be marketed legally. Projects for tracing gold have failed,” the former minister said.
Rodríguez also highlighted the challenges of illicit coca cultivation and drug trafficking. “Colombia continues to be trapped in the same tragedy it has been in for the past 40 years, that of illicit crops,” he said. He added many of the killings of social leaders are related to retaliation by armed groups.
When it comes to illegal mining, although the Petro government appears willing to fight it, the measures employed by his predecessor have been criticized by experts as being heavy-handed. “Every illegal dredge that is found will immediately be destroyed with dynamite,” Petro said.
Garay said the strategy is problematic: “I lived that experience in Caquetá, where fighting illegal mining meant bombing mining rafts or river dredges, but what that did was create more pollution because the fuel sank into the Caquetá River. The public forces never admitted that the fuel had contaminated the river.”
Petro has also talked about stopping mining from serving as a means of money laundering, by designating a single buyer of gold: the central bank.
Botero, from the Foundation for Conservation and Sustainable Development, pointed to other pressing illegal activities, including land grabbing as a driver of deforestation, a phenomenon that was addressed in a recent Constitutional Court ruling. “As long as there isn’t massive and rapid allocation of vacant plots, as the Constitutional Court ruling says, to generate rights for the peasant populations, who are the most affected by this lack of a legal definition, the market for informal and illegal land is going to continue to worsen the issue of illegal deforestation, because it’s a big business. The relationship that has to be made immediately are the rights of the rural communities that also maintain the nature of a forest reserve.”
Prior consultation and licensing of projects
Another important topic to consider is prior consultation of Afro-Colombian and Indigenous communities for extractive projects on their lands. For Indigenous leader Garay, the current framework isn’t enough. “What we really want is a policy of directly protecting the Amazon with Indigenous communities, one recognized by Indigenous environmental authorities.”
Gómez, from Gaia Amazonas, recommended that the Petro administration work hand in hand with Indigenous peoples to protect their territories and the prior consultation process. “I would even venture to say that [the process of recognizing Indigenous peoples] got worse during the previous administration and that the new government won’t be able to fix it. It’s a historical debt that the Colombian state has had for a long time, but it’s without a doubt something the Petro government needs to address and adjust institutionally … Indigenous governments really can be autonomous and efficient governments. There are already Indigenous governments in over 24% of the Amazon that maintain almost 95% or more of the standing forests. They’re already doing their part. It’s really about understanding that Indigenous governments are key actors.”
According to Rodríguez, the topic of licensing was correctly managed by the previous government. “During the Duque administration, the National Agency for Environmental Licenses got stronger. You see that the agency registered two requests for environmental licenses in Santurbán and another in Jericó.”
Renewable energy, oil and fracking
Rodríguez spoke favorably about the Duque government’s work developing renewable energy. It reported tripling the capacity of non-conventional renewable energies in 15 months, including wind and solar. In terms of energy capacity, he said the government started with 60 megawatts and ended with 2,250 MW. Duque also created 27 clean energy projects worth 16 billion pesos ($3.5 million) for wind, solar, and nine transmission lines.
As for the Petro government’s intentions to not sign new contracts for oil exploration, Rodríguez said he isn’t convinced. “I disagree with that. Obviously Colombia has to lower its use of fossil fuels as part of the decarbonization of the economy — it’s absolutely key in the transportation sector. But that’s different from the export business. Colombia should continue to sell oil because it has a lot of other issues to resolve.”
Regarding the Petro government’s support for a bill that prohibits fracking, Gómez welcomed the decision. “The [Duque] government was really stubborn in pushing its proposal for pilot fracking projects, despite being proven without a doubt that it impacts groundwater sources and generates uncontrolled seismic movement.”
This article was originally published on Mongabay.
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