04 December 22
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Elizabeth Prelogar dared to challenge federal courts’ power while arguing before the justices. They were not pleased.
The answer to this question is important, because this tactic has rapidly become an obstacle to governance.
Under President Barack Obama, conservative judges began using a specific power to “set aside” policies, granted to them by a provision of a 1946 law, to halt executive policies nationwide, claiming that Congress intended to award them this sweeping power. Left-leaning judges used the tool to limit President Donald Trump’s efforts to rewrite federal statutes, particularly asylum law, and prompted a huge backlash among Republicans. Today, with President Joe Biden in office, conservative judges have transformed the power to “set aside” policies into an unprecedented weapon of obstruction, voiding agency rules and executive policies so frequently that they have turned the federal judiciary into a kind of shadow president with a permanent veto over the actual, elected president.
It is not actually clear, though, that judges even have the legal authority to wipe federal policy off the books. A strictly textualist interpretation of federal law strongly suggests that they do not. To the contrary, the fact that federal courts have unlawfully expanded their power to interfere with duties of the executive branch seems like a direct attack on the separation of powers.
Solicitor General Elizabeth Prelogar had the courage to point out this problem to the Supreme Court on Tuesday. By doing so, she incurred the wrath of Chief Justice John Roberts and Justice Brett Kavanaugh, who sounded shocked and offended—furious, really—that the solicitor general would dare accuse them of misreading a statute.
To understand the barfight that ensued, we have to rewind to 1946, when Congress passed the Administrative Procedure Act (APA). The statute was a response to a huge expansion of the administrative state in the 20th century. A slew of federal agencies had sprung up to interpret and enforce federal law, and many of these agencies wielded substantial independent authority. Congress intended the APA to serve as a “bill of rights” for Americans “whose affairs are controlled or regulated” by these agencies. Among many other features, the law allowed courts to review the legality of agency rules and regulations. One provision directed courts to “hold unlawful and set aside action, findings, and conclusions found to be” illegal.
Initially, federal courts interpreted the APA to allow the usual remedy when somebody sues the government: an injunction that tells the government it can’t enforce a policy against that plaintiff. For instance, if the SEC enforced a financial rule against a business, that business could challenge the rule as unlawful. If a court agreed, it could issue an injunction telling the SEC it couldn’t enforce the rule against that business. It could not nullify the regulation with regard to every single business in the country. That power of universal nullification just isn’t one that courts traditionally hold.
Yet over the last several decades, the judiciary has adopted a new interpretation of the APA, insisting that the law does allow courts to nullify, or “vacate,” federal rules and regulations. Under this reading, the power to “set aside” a policy includes the power to void its application to anyone, anywhere—not just the parties before the court. The U.S. Court of Appeals for the District of Columbia Circuit, in particular, “sets aside” rules all the time because, by law, it has direct review of various agency actions. More recently, however, district courts have used vacatur to function as nationwide injunctions against the executive branch. (To be clear, their decisions largely treat vacatur as a form of nationwide injunction—halting the enforcement of a regulation anywhere, by anyone, against any party—so it’s fair to use the two terms interchangeably, though they’re technically distinct.)
These rulings departed from the longstanding principle that a court’s judgments bind only the parties before it. Conservative judges are consistently claiming to “set aside” a rule by nullifying it, instead of providing the traditional relief: an injunction preventing the government from enforcing the rule against the plaintiff. The decision abolishing Biden’s mask mandate on public transportation was styled as vacatur. So was the decision eradicating Biden’s student debt relief program. And so was the decision invalidating Biden’s efforts to prioritize the deportation of certain immigrants over others.
It’s this last ruling that the Supreme Court considered on Tuesday. Solicitor General Prelogar asserted that the judge who voided Biden’s immigration priorities had no authority to do so, because the APA does not allow vacatur. Her argument built on the work of University of Virginia School of Law Prof. John Harrison and Notre Dame Law School Prof. Samuel Bray. In short, Harrison and Bray have persuasively demonstrated that by directing courts to “set aside” an unlawful rule, Congress simply meant that courts could reverse the judgment of the agency, and issue relief to the parties before it—rather than to the whole world. That would explain why courts did not use vacatur for decades after the APA’s passage; why Congress did not even hint at the option of a nationwide injunction–type remedy when debating the APA; and why the “set aside” language is in a separate section of the law that has nothing to do with injunctions or other remedies.
Prelogar’s argument was based on the plain words of the APA, and it drove several justices mad. Roberts and Kavanaugh served on the D.C. Circuit before joining the court, as did Justices Clarence Thomas and Ketanji Brown Jackson. On Tuesday, Roberts came out swinging against Prelogar’s theory. “Your position on vacatur,” he told her, “that sounded to me to be fairly radical and inconsistent with, for example, those of us who were on the D.C. Circuit—you know, five times before breakfast, that’s what you do in an APA case. And all of a sudden you’re telling us that, no, you can’t vacate it, you do something different. Are you overturning that whole established practice under the APA?”
When Prelogar responded that “the lower courts, including the D.C. Circuit, have in our view been getting this one wrong,” Roberts interjected. “Wow,” he said, audibly angry. “That’s what the D.C. Circuit and other courts of appeals have been doing all the time as a staple of their decision output.” Prelogar responded that “they haven’t been doing it with any attention to the text, context, and history of the provision”—a gutsy refusal to retreat from the wrath of the Chief Justice of the United States.
Roberts’ moment of fury was only a prelude to Kavanaugh’s lecture about this “pretty extreme argument.” Kavanaugh, who served on the D.C. Circuit for 12 years, scolded Prelogar that he sat alongside the lions of that court, on the left and right. If vacatur was a made-up remedy, he suggested, they would have noticed:
You said the judges on the D.C. Circuit haven’t paid attention to text, context, and history. I guess I would respectfully push back pretty strongly on that. I sat with judges like Silberman and Garland and Tatel and Edwards and Williams. They paid a lot of attention to that. And the government never has made this argument in all the years of the APA, at least not that I remember sitting there for 12 years. I haven’t seen it made. It’s a pretty radical rewrite, as the chief justice says, of what’s been standard administrative law practice.
And that wasn’t all! Kavanaugh, sounding ever more aggrieved and exasperated, went on:
And you say they’re not paying attention to the text. Yeah, we did. “Set aside” means “set aside.” That’s always been understood to mean the rule’s no longer in place. No one’s really had this—no case has ever said what you’re saying anywhere. You know, it’s a recent law review proposal, good for that, but, you know, that’s not been the law. And so I find it pretty astonishing that you come up here and—I realize it’s not the main part of your submission—but I’m just going to push back pretty strongly on the three pages for—just toss out decades of this court’s law, of circuit law.
Following this blast of indignation, Prelogar backtracked a bit. “I didn’t mean that the D.C. Circuit isn’t generally paying attention to text, context, and history, and I should have been more precise that I don’t think that the court has ever had the opportunity to actually engage with the arguments that we’re making here in this case.”
Prelogar pointed out that the Justice Department has, in fact, raised versions of this argument from 2008 on, through the administrations of George W. Bush, Barack Obama, Donald Trump, and now Biden. She also explained that the DOJ’s theory would end the bizarre process that has arisen over the last decade: Plaintiffs spread out across the country, filing lawsuits with multiple district courts, in the hopes of convincing just one judge to “set aside” a policy nationwide. Once a judge takes the bait, the government is handcuffed unless (or until) that judge is reversed by a higher court, which can take years of litigation. Even if judges in other states and circuits disagree, they have no power to overrule a different district court.
Jackson, too, pushed back against the solicitor general, albeit much more gently. She referred back to her stint on the D.C. Circuit—which led Justice Elena Kagan to quip that there “seems to be a kind of D.C. Circuit cartel.” Justice Amy Coney Barrett resisted Prelogar’s argument as well, suggesting that the meaning of the APA could “evolve over time.” (Quite a claim from a self-identified textualist!) Only Justice Neil Gorsuch appeared open to the theory, a version of which he has endorsed in the past.
Harrison, the law professor who kicked off this debate, told me he thinks the court may “find a way to avoid the vacatur issue in this case,” then return to it later with “more extensive briefing” and “maybe a decision below that airs the question thoroughly.” It certainly isn’t going away. Federal judges are going to keep issuing nationwide blocks every time the executive branch sneezes until the Supreme Court puts a stop to it—under both Democratic and Republican presidents.
Prelogar’s mistake, if she made one, was assuming that this SCOTUS would be receptive to a textualist argument that would curb the power of conservative judges under a Democratic president. But when the White House falls back into Republican hands, the right-wing justices may suddenly become much more amenable to the idea that lower courts don’t have a floating veto over the president’s every move.
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The San Francisco Board of Supervisors voted to advance a policy that would allow the police to deploy robots with deadly force. A second vote is expected on Dec. 6. (photo: Ethan Swope/Getty Images)
I know that the San Francisco Police Department wants to have killer robots. But I think, sometimes, you do not need to give people what they want. Especially if what they want is killer robots.
I understand that this remark is controversial. But what are columnists for, if not to take these bold stances? So I will say it again: I, for one, think that killer robots are bad. I do not think the robots should kill. I think if you are going to draw a line someplace, killer robots should be on the other side of the line.
I was against the murder hornets, too. I heard “hornet” and said, “I will hear you out,” but then they said “murder,” and I said, “I will pass!” I am also opposed to killer people. When people say, “I am thinking of killing,” I am always the first to say, “Don’t!” I am consistent in these matters.
I like robots that don’t kill. I am happy to see a robot vacuuming. I am delighted when a robot takes an interest in some element of manufacturing. I am even pleased when a robot wants to be a companion to the elderly. All of these seem like worthwhile things for the robots to do. The killing, though, makes me uneasy.
That might not be where you draw your line. I understand. You might say, “I think the robots should do a little killing. Let them have their fun.”
But I am going to say, “I think you’re making a mistake. I think the ideal amount of killing that should be done by robots is zero killing.”
“But wait,” you’re saying. “Historically, haven’t killer robots been good for society?” Actually, no! Actually, there have not been any killer robots, because we were pretty confident they would be bad for society.
Well, let us look to fiction! Perhaps in fiction we will find that killer robots are doing people great favors! But even there, we see that every killer robot is doing something bad. You might expect that if there were a good case to be made for killer robots, somebody in science fiction would be making it, but even there, where robots abound, people are most excited about them when they are not arriving to kill people.
Nobody in anything that I have read or seen in real life or fiction sees a killer robot and says, “Ah, good! The killer robot is here, to kill!” And I think there is a reason for that. I would venture that reason is: Killer robots are bad.
I am old-fashioned like that. No robots killing people, thanks! In fact, I do not even think the police should be killing people. But that is just me.
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A Safe Horizon public service announcement about the Adult Survivors Act plays in Times Square on Nov. 18, 2022, in New York. (photo: Julia Nikhinson/AP)
Adult survivors of sexual abuse can now file lawsuits even if the statute of limitations on their claims had already run out
Already, some bold-faced names from the worlds of arts, finance and politics have become involved, including Donald Trump and banker Leon Black.
A broad legislative sweep, the New York Adult Survivors Act, allows for adult survivors to file lawsuits and for the alleged abusers or their estates, as well as businesses and institutions that enabled the conduct by ignoring or encouraging an environment that allowed the assaults to occur, to be held financially liable.
The number of claims that will be filed is unknown. But under a previous window allowing claims beyond the statute of limitations to be brought by survivors who were minors at the time of the alleged incidents, as many as 11,000 claims were filed over the course of two years.
Since the look-back bill was introduced on Thanksgiving Day, several notable claims have already been filed.
Leon Black, the billionaire co-founder of private equity firm Apollo, was accused by Cheri Pierson of raping her two decades ago in the late sex offender Jeffrey Epstein’s Manhattan mansion. Epstein’s estate is named as a defendant. That case comes on top of a separate civil claim by Guzel Ganieva who accused Black of falsely claiming she tried to extort him after she accused him of rape.
In another claim filed this week, a former talent scout at Atlantic Records sued the label and the estate of its founder, the late Ahmed Ertegun, for sexual assault. Jan Roeg alleges that Atlantic knew and took a “laissez-faire” approach about Ertegun’s misconduct.
In a new, upgraded lawsuit against Donald Trump, former Elle columnist E Jean Carroll maintains the former president committed battery “when he forcibly raped and groped her” – and that he defamed her when he denied raping her last month.
“Trump’s underlying sexual assault severely injured Carroll, causing significant pain and suffering, lasting psychological harms, loss of dignity, and invasion of her privacy,” the suit alleges.
Carroll’s attorney, Roberta Kaplan, said at a court hearing that her client “intends to hold Donald Trump accountable not only for defaming her, but also for sexually assaulting her, which he did years ago in a dressing room at Bergdorf Goodman”.
Trump has denied the allegations against him.
Claims have also been brought against JPMorgan and Deutsche Bank by lawyers acting for unnamed individuals who accuse the banks of turning a blind eye to alleged sex trafficking by the disgraced financier Jeffrey Epstein in order to “churn profits”. A Deutsche Bank spokesperson said the claim “lacks merit”.
According to Bradley Edwards, a Florida lawyer who has featured prominently in exposing Epstein’s conduct, “Epstein and his co-conspirators could not have victimized without assistance from wealthy individuals and financial institutions”.
Also anticipated are lawsuits on the behalf of about 40 women, who claim they were subjected to unlawful sexual abuse by former Columbia University gynaecologist Dr Robert Hadden. About 150 claims against the gynaecologist have already been settled.
Hundreds more lawsuits may now also be forthcoming, including individuals who claim they were assaulted by co-workers, prison guards or medical providers, in part because it allows an institution like a hospital or jail to be held responsible.
Opening the adult window for claims precludes cases involving minors that were covered by a previous law incentivized by a backlog of claims against the Catholic church. Under that law, hundreds of others came through, including claims again Boy Scouts of America, Kevin Spacey and Britain’s Prince Andrew.
Under the new law, says Wendy Murphy, a former federal sex crime prosecutor who teaches at New England Law | Boston, some of the cases could be the kind lawyers typically don’t want to take because force wasn’t physically used.
“We could see more cases like Weinstein – adult women over the age of 18 who in certain circumstances submitted or felt coerced because of who the perpetrator was”, Murphy says.
The adult law came into effect on 24 November, after being passed by the state legislature and signed into law by Governor Kathy Hochul in May. Bridie Farrell, a lawyer who worked on the child and adult acts, points out that when it comes to sexual assault, it often takes time for people to come forward.
“After the success of the child victims act, after the #MeToo movement, and the people who came forward to voice abuse and assault that took place years ago, this allows people to access the justice system. It takes a lot of moral conviction to come forward.”
But Murphy says there are other factors at play, too. “The legislature doesn’t just decide to open up lawsuits for benevolent reasons because they think it’s morally and ethically the right thing to do. They do it because there’s money to be had, and a lot of lawmakers are lawyers or work for law firms.”
“It’s very well understood there’s been a conversation about how much money this is going to generate,” Murphy adds, “and corporate America is going to be very nervous about this, because of the higher likelihood that they have exposure now the clock is restarting.”
By some estimations, the adult window could be a far larger legal category than the child law, especially as the legal system has traditionally been less accommodating to adult claims that were late in reporting. Some legal experts think the money issue could come to prominence as the floodgates open.
“The only question now is does the lawyer think the client is telling the truth and does the defendant have any money,” said Murphy. “Where the lobbying impetus came from to enact, the law will probably present itself. Just watch what cases get filed and you’ll get that answer pretty quickly.”
The topic has already surfaced in the Black case. Susan Estrich, a lawyer for Black, called Pierson’s lawsuit “categorically false and part of a scheme to extort money from Mr. Black by threatening to destroy his reputation.”
Both claims – Pierson and Ganieva – against Black were brought by Wigdow, a law firm in New York that has brought dozens of sexual abuse claims, including the ones involving Dominique Strauss-Kahn and Harvey Weinstein, and says on its website that it has won more than $1bn for it its clients.
Wigdor partner Jeanne Christensen said her firm looked “forward to holding Black and Epstein’s estate accountable for their appalling unlawful conduct as alleged in the complaint by our client”.
Farrell pushes back on any idea that money is a motivating factor. “Trial lawyers are the ones that are willing to help get some kind of societal change. People are meeting with institutions to try to get them to do systematic change and institutions don’t change until we go through a legal process and provide them with enough economic incentive,” she said.
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People gather in front of the US Supreme Court in June 2019 after a decision opening the floodgates to partisan gerrymandering. (photo: Mark Wilson/Getty Images)
Moore v. Harper is a test of whether this Supreme Court can ever be trusted with power.
Moore is also potentially the biggest threat to free and fair elections in the United States to reach the Supreme Court in my lifetime — and I was alive for Bush v. Gore. Four justices have endorsed the utterly nonsensical legal theory underlying Moore, which means that, unless one of those four has second thoughts, the future of US elections will be decided by Trump-appointed Justice Amy Coney Barrett.
To be fair, enough conservative elites have now denounced this lawsuit that there is a real chance some of their ideological allies on the Court will have second thoughts. But the fact that any judge might embrace this nonsensical legal theory is absurd.
The case involves the awkwardly named “independent state legislature doctrine” (ISLD), a theory that the Supreme Court rejected many times over the course of more than a century. It’s also a theory repudiated by many of the very same sources that the ISLD proponents rely upon in their briefs to the justices.
Under the strongest form of this doctrine, members of each state’s legislative branch have unchecked authority to decide how elections for Congress and the presidency will be conducted in their state — indeed, a state legislature could potentially pass a law canceling the presidential election in that state and awarding its electoral votes to Donald Trump. Any state constitutional provisions that protect the right to vote, that limit gerrymandering, or that otherwise constrain lawmakers’ ability to skew elections would cease to function. State governors would lose their ability to veto laws impacting federal elections. And state courts would lose their authority to strike down these laws.
As Justice Neil Gorsuch wrote in a 2020 concurring opinion endorsing the ISLD, “the Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.” Notably, this opinion was joined by Justice Brett Kavanaugh, who currently sits at the conservative Supreme Court’s ideological center.
In fairness, the petitioners in Moore (in Supreme Court parlance, the term “petitioner” typically refers to the party that lost in the court below) take a slightly less extreme position than Gorsuch and Kavanaugh. For example, these petitioners, Republican lawmakers in North Carolina who object to a state supreme court decision striking down gerrymandered congressional maps, do not ask the Court to overrule Smiley v. Holm (1932), which held that state governors may exercise their veto power over election legislation.
But the Moore petitioners nonetheless seek sweeping and radical changes to some of the most foundational principles of US election law. They argue that state constitutions “may not impose substantive state-constitutional limits” on laws governing federal elections, an argument that also precludes state courts from striking down election laws that violate such limits. In practice, their theory would also make the Supreme Court, where Republican appointees control two-thirds of the seats, the final word on disputes arising under state election law (currently, state supreme courts have the final say on all questions of state law).
An array of conservative luminaries filed briefs practically begging the Supreme Court not to do any of this. Foremost among them is J. Michael Luttig, a former federal judge who was on the cutting edge of legal conservatism in the Clinton and George W. Bush administrations.
Then there’s an amicus brief signed by Steven Calabresi, a founder of the conservative Federalist Society and the co-chair of its board, warning that the Moore petitioners “flout core tenets of the American Founding.” A brief by Benjamin Ginsberg, for many years the Republican Party’s top election lawyer, warns that the ISLD would “create untenable legal uncertainty around elections” and “increase the odds that state legislatures replace the popular vote with their own political preferences.” A brief on behalf of retired admirals, generals, and service secretaries — some of whom held high-level political appointments in Republican administrations — warns that the ISLD “undermines election integrity and exacerbates both domestic and foreign threats to national security.”
Let me be explicit about just how weak the arguments are supporting the independent state legislature doctrine: Any judge who, after reading the briefs in this case, concludes that the ISLD has merit is either too incompetent to practice law or too blinded by ideology to sit on any court.
This entire case turns on the Moore petitioners’ inability to understand a dictionary
The ISLD is one of those legal arguments that, if I can borrow some choice words from the late Justice Antonin Scalia, periodically rises “like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.”
The Court first rejected it in Davis v. Hildebrant (1916), which upheld a provision of the Ohio constitution permitting the people of the state to veto state election laws via a popular referendum — even though that meant blocking a law enacted by the state’s legislative branch. It rejected the ISLD again in Smiley, the 1932 case holding that governors may veto election laws. The Court most recently rejected it in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), which held that states may use a bipartisan commission to draw congressional maps.
It’s likely that this particular ghoul refuses to die because the independent state legislature doctrine actually sounds plausible if you read the text of the Constitution without doing any legal or historical research, or even bothering to pick up a dictionary to see how a particularly important word is defined.
The Constitution states that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” Meanwhile, another provision says that presidential elections shall also be conducted in a way determined by the state “Legislature.”
So the argument for the ISLD is deceptively simple, and can be summarized in three sentences: The Constitution says that the rules governing federal elections shall be made by each state’s “legislature.” A governor, a state supreme court, or a state constitution is not the “legislature.” Checkmate, libs.
The problem with this argument is that, at least at the time when the Constitution was drafted, and popularly elected legislative bodies like the US Congress were a relatively new innovation, the word “legislature” did not mean “the elected body of men and women who make up the House and Senate.” It meant, as the Supreme Court explained in Arizona State Legislature, “the power that makes laws.”
And that power can be shared. Just as the US president plays a role in making federal laws through their veto power, so too can states allocate that legislative power among their various branches of government. Davis confirmed that this lawmaking power may be given, in part, to the people of the state as a whole through a referendum process. Smiley confirmed that a portion of the legislative power may be wielded by a state governor through his or her veto power. Arizona State Legislature confirmed that a portion of this power may be given to a bipartisan commission.
Indeed, if you doubt this definition of the word “legislature,” I encourage you to read the Moore petitioners’ brief. Specifically, I encourage you to read page 14 of their brief, where they quote four dictionary definitions of the word “legislature.”
Only one of these four definitions, from a dictionary published four decades after the Constitution was drafted, even plausibly could be read to support the ISLD. That 1828 dictionary defines the word “legislature” to mean “the body of men in a state or kingdom, invested with power to make and repeal laws.” Notably, even this definition does not state that these men must serve in a formally organized legislative branch. And the other three dictionaries quoted by the Moore petitioners define the word “legislature” the same way it was defined in Arizona State Legislature.
One 1755 dictionary defines the word to mean “the power that makes laws.” Another, from 1797, offers an identical definition. A third, from 1763, defines the word to mean “the Authority of making Laws, or Power which makes them.”
This, alone, is fatal to the Moore petitioners’ arguments — and to Gorsuch and Kavanaugh’s. Properly understood, the federal constitution does not give primacy to a state’s House and Senate. Rather, it says that state election laws should be enacted through whatever process the state uses to make any other law. That may involve a gubernatorial veto, a popular referendum, or a constitutional amendment process that writes some of a state’s election laws into its constitution. A state could even give a portion of its lawmaking power to its judiciary, if it chose to do so.
There is no merit whatsoever to the Moore petitioners’ arguments.
The Moore petitioners’ arguments fail even if you accept the ISLD as valid
Again, the Moore petitioners claim that the Constitution gives North Carolina’s legislative branch primacy in redistricting, and that the North Carolina General Assembly’s decision to draw gerrymandered maps cannot be second-guessed by the state’s courts.
But even if you accept the strongest version of the ISLD — that is, even if you believe that the General Assembly has unchecked authority to decide how congressional districts are drawn in that state — the petitioners should still lose their case. That’s because the General Assembly passed a law which explicitly authorizes certain state courts to hear redistricting lawsuits.
North Carolina law provides that lawsuits challenging “any act of the General Assembly that apportions or redistricts State legislative or congressional districts” may be filed “in the Superior Court of Wake County and shall be heard and determined by a three‑judge panel.” This court’s decision may then be appealed to the state supreme court.
What’s more, North Carolina law — law that was enacted by the legislative branch — provides detailed instructions on how state courts should behave when they determine that a legislative map is illegal. One statute requires state courts to “find with specificity all facts supporting” its conclusion that a map is illegal. Another provides that, after a state court strikes down a redistricting plan, it may not “impose its own substitute plan unless the court first gives the General Assembly a period of time to remedy any defects identified by the court.”
So even if you accept Gorsuch’s extreme version of the ISLD, the Moore petitioners still lose their case. The legislative branch of North Carolina’s government explicitly authorized the state courts to hear lawsuits challenging gerrymandered maps. It gave them specific instructions on how to decide these cases, and it even delineated the specific circumstances when a state court may draw its own maps replacing those drawn by state lawmakers.
The ISLD would transfer an enormous amount of power over elections to a GOP-controlled Supreme Court
Setting aside Moore itself, and the dispute over redistricting commissions in Arizona State Legislature, the independent state legislature doctrine has shambled out of its grave at least two other times in the last three decades. Both times, it was invoked by Republican-appointed justices to solve a political problem: The Supreme Court isn’t supposed to decide most questions involving election disputes, and often the body that is supposed to decide those questions resolves them in ways that favor Democrats.
Consider Bush v. Gore (2000), the dispute over a recount of Florida’s presidential ballots, where the Court split along ideological lines and handed the presidency to George W. Bush.
The case involved several fights over which votes should be counted during a recount of Florida’s presidential ballots, as well as questions about whether this recount had to comply with tight deadlines. The Florida Supreme Court, which was dominated by Democratic appointees in 2000, had resolved many of these questions in ways that favored Democratic candidate Al Gore.
That created a serious problem for Bush. Although the Supreme Court has the final say on questions involving federal law, the Florida Supreme Court had ruled in favor of Gore by interpreting Florida’s own law. And, as the Supreme Court explained in Hortonville District v. Hortonville Education Association (1976), even the nation’s highest Court is “bound to accept the interpretation of [state] law by the highest court of the State.”
Enter the independent state legislature doctrine. Although a majority of the Court did not rely on the ISLD in Bush, Chief Justice William Rehnquist wrote a concurring opinion, joined by two other justices, which argued that the ISLD allows the Supreme Court to bypass the rule prohibiting it from reinterpreting a state’s law — and to substitute its own interpretation of a state election law for that of a state’s highest court.
Pointing to constitutional language stating that presidential electors shall be appointed “in such Manner as the Legislature thereof may direct,” Rehnquist wrote that “in order to determine whether a state court has infringed upon the legislature’s authority, we necessarily must examine the law of the State as it existed prior to the action of the” Florida Supreme Court.
A similar dispute arose during the 2020 election, in Republican Party of Pennsylvania v. Boockvar (2020). In that case, the Pennsylvania Supreme Court ruled that certain mailed ballots, which arrived up to three days after Election Day, should be counted. Because the state supreme court relied upon the state’s own constitution in reaching this decision, it should have had the final word. Again, the US Supreme Court is not allowed to overrule a state’s highest court’s interpretation of the state’s own law.
The full Court decided not to hear the case. But Justice Samuel Alito, in an opinion joined by Justices Clarence Thomas and Gorsuch (but not Kavanaugh), called for the Court to invoke the ISLD to give itself the final word on how to read Pennsylvania’s law. “The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless,” Alito claimed, “if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision” invalidates those rules.
To be clear, the longstanding rule that state supreme courts, and not the US Supreme Court, have the final say over how to interpret state law will sometimes lead to results that one party thinks are unfair. Currently, for example, the Wisconsin Supreme Court is controlled by Republicans, while Michigan’s Supreme Court has a Democratic majority. That means that Wisconsin’s justices may interpret the state’s election law in ways that benefit Republicans, while Michigan’s justices may interpret it in ways that benefit Democrats.
But the alternative — the one floated by Rehnquist in Bush and by Alito in Republican Party — is much worse. That alternative is to give the US Supreme Court final authority over all disputes involving federal elections, regardless of where that dispute arises, because it would become the final arbiter over whether one side in a dispute infringed on the state legislature’s power. It would mean that, no matter what, the outcome of a disputed congressional or presidential election would rest on a Court where Republican appointees currently have a 6-3 supermajority.
The ISLD would effectively turn Brett Kavanaugh, the median vote on the current Supreme Court, into the final authority on all federal elections.
No Court that would claim this kind of power can be trusted with it
The independent state legislature doctrine is obviously and embarrassingly wrong. It relies on a simplistic reading on the Constitution that is repudiated by many of the same sources quoted in the Moore petitioners’ briefs. It would upend more than a century of precedent. And it would give an unprecedented amount of power over elections to whichever political party controls the Supreme Court.
Indeed, the arguments for the independent state legislature doctrine are so flimsy, and the consequences of a Supreme Court decision embracing it are so alarming, that even the co-chair of the Federalist Society’s board — the same Federalist Society that Trump relied upon to choose his judges and justices — is urging the Supreme Court to stay its hand. I am under no illusions that the pivotal justices on this Court will care what I have to say about Moore, but I hope they can find it within themselves to listen to Steven Calabresi. Or to Judge Luttig. Or to the generals and admirals telling them that the ISLD is a threat to national security!
And, on top of all of that, the Moore petitioners have managed to bring a case to the Supreme Court that is so weak that they should lose even if you accept their ludicrous reading of the Constitution.
Any justice who would claim the simply enormous amount of power offered to them by the independent state legislature doctrine cannot be trusted to wield that power fairly, or in a nonpartisan way. There is simply no plausible legal argument for the ISLD, and so a Supreme Court decision embracing it would be a declaration that the law simply does not matter in this Court.
And it would be a declaration that every disputed federal election will now be resolved by justices who care nothing about the law.
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People gather at the Alabama State Capitol during the March for Reproductive Freedom against the state's new abortion law, the Alabama Human Life Protection Act, in Montgomery, Alabama, U.S. May 19, 2019. (photo: Michael Spooneybarger/Reuters)
(Reuters) - An ongoing lawsuit in Alabama typifies the far-reaching criminalization of women enabled by some anti-abortion ideology and the U.S. Supreme Court’s recent ruling overturning Roe v. Wade.
A ruling in the matter, which involves a woman merely suspected of being pregnant, could be a bellwether for various cases relitigating women’s rights in the wake of the high court’s decision.
Etowah County officials are facing what appears to be the first lawsuit in the state alleging false imprisonment because a woman who was jailed for exposing her unborn child to drugs wasn’t pregnant – although it isn’t the first time such dystopian injustice has played out in Alabama.
Stacey Freeman, who is seeking compensatory and punitive damages, was under investigation by a family services agency for substance abuse when her daughter incorrectly told social workers that Freeman was pregnant, according to her Nov. 7 complaint. Freeman said she offered to take a pregnancy test, but it wasn’t administered.
Sheriff’s investigator Brandi Fuller later issued a “patently false” warrant saying Freeman tested positive for amphetamines, according to the complaint. She was arrested for “chemical endangerment” days later, the complaint said, by sheriff’s deputies who stopped to assist her with a flat tire.
Sheriff Jonathon Horton and Fuller didn’t respond to questions for this column.
Freeman said she was forced to provide a urine sample in jail -- which showed she wasn't pregnant. She was released only after Fuller "admonished" her, saying she would be charged if she were to get pregnant within the next few months, according to the complaint.
Freeman’s ordeal is shocking, to be sure. Yet, officials in Shelby County, Alabama, more than seven years ago brought and later dismissed chemical endangerment charges against a woman who also wasn't pregnant, AL.com reported in June 2015. And, in 2019, an Alabama grand jury indicted a woman who lost her unborn baby when she was shot, after declining to charge the shooter because it found she had fired in self-defense.
Those cases demonstrate the senselessness and very real dangers of the “fetal personhood” argument – which holds that the law should grant full personhood rights to fetuses and even fertilized eggs. The idea has been used to support efforts to punish women for behavior considered risky to pregnancies or for seeking abortions -- a position that even the Republican establishment and anti-abortion movement leaders have previously rejected as radical.
Khiara M. Bridges, a professor at the University of California Berkeley School of Law, told me the theory is a throughline in the cases.
“These efforts are clearly premised on the idea that fetuses have rights that supersede any interest the pregnant person may have,” Bridges said.
The idea has been used to extend child protection policies to fetuses. It's also a backdoor tactic aimed at criminalizing abortion, according to a 2014 law review article by Rachel Suppe, an attorney for the Nashville, Tennessee, law department (Simply put, abortion becomes murder if fetuses are "persons" as a matter of law.)
And the notion does in fact underlie ongoing efforts in the wake of the Supreme Court's June anti-abortion decision.
The high court didn't decide whether fetuses have personhood rights in that case, and it also declined to settle the question last month. Still, the fact that the Supreme Court left the issue open for states to decide means that some will indeed move to do so -- and overzealous police and prosecutors will continue to criminalize people they suspect are pregnant.
Georgia passed a so-called "fetal heartbeat" bill that was not allowed to take effect until after the Supreme Court overturned abortion rights, for example. Arizona passed a similar law recognizing personhood from the moment of fertilization, although a court has blocked that measure.
Martin Weinberg, who represents Freeman, told me her case "is a manifestation of why this is just not a pragmatic way" to go about protecting infants or women.
Etowah County is the epicenter of pregnancy criminalization, Emma Roth, a staff attorney with Pregnancy Justice, told me.
The group has tracked the criminalization of women and pregnancy – more than 1,300 arrests and detentions that wouldn’t have happened if the person weren’t pregnant or suspected to be – since 1973. Currently, Alabama prosecutes more pregnant people than any other state, and Etowah County leads with more than 150 cases since 2010.
Advocates argue that fetal personhood is a short, slippery slope to nearly unfettered regulation of anyone who may be pregnant: strenuous physical activity, smoking, drinking and medical procedures, like chemotherapy, are potentially risky to fetuses, for example.
In practice, it has led to criminalization and increased state control over women – mostly Black women, historically, and exclusively low-income women, generally.
A disproportionate and overwhelming number of detentions related to pregnancy since the 1980s -- more than 50% -- were brought against Black women, according to research by Lynn Paltrow, a lawyer and former director of Pregnancy Justice, and Jeanne Flavin, a sociologist at Fordham University.
Indeed, no empirical or anecdotal evidence appears to exist documenting the prosecution of middle- to upper-class women for these crimes, Cortney Lollar, professor at the University of Kentucky College of Law, wrote in 2017.
Moreover, the underlying premises are simply wrong -- and the policies don’t actually protect fetuses or coerce pregnant people to make healthy decisions, research shows.
Meghan Boone, a professor at Wake Forest University School of Law, and Benjamin McMichael, an economist and professor at the University of Alabama School of Law, analyzed the impact of Tennessee’s 2014 fetal endangerment law -- which expired two years later -- in a 2021 paper. They found “consistent evidence” that outcomes worsened under the law.
Eighty more infant deaths occurred in 2015 as a direct result of the law, they wrote. The results suggested that mothers were forgoing prenatal care out of fear of prosecution.
Freeman’s ordeal, then, is just one striking example of the pitfalls of importing fetal personhood into the law, and those myriad risks to women will persist so long as the Supreme Court remains silent on the matter.
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This picture taken on March 22, 2021, shows the entrance of the China embassy in the The Hague. The Netherlands, along with Ireland, has shut down the Chinese police station found on its territory. (photo: Bart Maat/ANP/AFP/Getty Images)
Italy’s foreign and interior ministries did not reply to questions from CNN.
China also struck similar joint police patrol agreements with Croatia and Serbia between 2018 and 2019 as part of the nation’s increasing strategic footprint along the path of Xi’s defining foreign policy, dubbed the Belt and Road Initiative.
Chinese officers were seen on a joint patrol with their Croatian counterparts on the streets of the capital Zagreb as recently as July of this year, Chinese media reported.
A Zagreb police official interviewed by Xinhua said the patrols were essential for “protecting and attracting foreign tourists.”
A 2019 report from Reuters said Chinese officers had joined Serbian officers on patrol in Belgrade to help address the influx of Chinese tourists. One Serbian officer noted the Chinese didn’t have the power to make arrests.
Safeguard Defenders also says Chinese stations were able to get a toehold in South Africa, and in nearby nations thanks to a similar accord with Pretoria, in place for years.
China began laying the foundations for closer policing ties with South Africa’s law enforcement agencies almost two decades ago, later setting up a network of what are officially called “Overseas Chinese Service Centers” in cooperation with the government of South Africa thanks to successive bilateral security agreements.
China’s consulate in Cape Town has said the plan “unites all the communities, both South Africans and foreign citizens in South Africa.”
Since its establishment, the framework “has been actively preventing crimes against the community and reducing the number of cases significantly,” the consulate has said while noting that the centers are non-profit associations with no “law enforcement authority.”
South African government officials have frequently been featured by Chinese media expressing support for the centers and saying their work has helped police deepen their relationship with Chinese expatriates who live there, according to a 2019 report from the Jamestown China Brief.
CNN reached out to the South African Police Service, but it has not yet received comment.
China tries to return people against their will
Safeguard Defenders stumbled on the police networks while trying to assess the scale of China’s efforts to persuade some of its people to return to China even against their will, which, based on official Chinese data, could number almost a quarter of a million people around the world during the time Xi has been in power.
“What we see coming from China is increasing attempts to crack down on dissent everywhere in the world, to threaten people, harass people, make sure that they are fearful enough so that they remain silent or else face being returned to China against their will,” said Safeguard Defenders Campaign director Laura Harth.
“It will start with phone calls. They might start to intimidate your relatives back in China, to threaten you, do everything really to coax the targets abroad to come back. If that doesn’t work, they will use covert agents abroad. They will send them from Beijing and use methods such as luring and entrapment,” Harth said.
The French interior ministry declined to comment on the allegation that a Chinese citizen was coerced into returning home by a Chinese police station in a Paris suburb.
Reports spark anger and investigations
The revelations have prompted vocal outrage in some countries and a conspicuous silence in others.
Last month, FBI Director Christopher Wray told a Homeland Security Committee he was deeply concerned about the revelations. “It is outrageous to think that the Chinese police would attempt to set up shop, you know, in New York, let’s say, without proper coordination. It violates sovereignty and circumvents standard judicial and law enforcement cooperation processes,” he said.
Ireland has shut down the Chinese police station found on its territory, while the Netherlands, which has taken similar measures, has a probe underway, as does Spain.
Harth told CNN the organization will likely find more stations in the future. “It’s the tip of the iceberg,” she said.
“China is not hiding what it is doing. They expressly say that they are going to expand these operations so let’s take that seriously.
“This is a moment when countries have to consider that it’s a question of upholding the rule of law and human rights in their countries as much for people from China, as for everyone else around the world,” she said.
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Jason Isaac, director of the Life:Powered initiative of the Texas Public Policy Foundation. (photo: Montinique Monroe/The New York Times)
The Texas Public Policy Foundation is shaping laws, running influence campaigns and taking legal action in a bid to promote fossil fuels.
The fishing companies challenging federal permits for the Vineyard Wind project were from the Bay State as well as Rhode Island and New York, and a video made by the opponents featured a bearded fisherman with a distinct New England accent.
But the financial muscle behind the fight originated thousands of miles from the Atlantic Ocean, in dusty oil country. The group bankrolling the lawsuit filed last year was the Texas Public Policy Foundation, an Austin-based nonprofit organization backed by oil and gas companies and Republican donors.
With influence campaigns, legal action and model legislation, the group is promoting fossil fuels and trying to stall the American economy’s transition toward renewable energy. It is upfront about its opposition to Vineyard Wind and other renewable energy projects, making no apologies for its advocacy work.
Even after Democrats in Congress passed the biggest climate law in United States history this summer, the organization is undaunted, and its continued efforts highlight the myriad forces working to keep oil, gas and coal companies in business.
In Arizona, the Texas Public Policy Foundation campaigned to keep open one of the biggest coal-fired power plants in the West. In Colorado, it called for looser restrictions on hydraulic fracturing, or fracking. And in Texas, the group crafted the first so-called “energy boycott” law to punish financial institutions that want to scale back their investments in fossil fuel projects, legislation adopted by four other states.
At the same time, the Texas Public Policy Foundation has spread misinformation about climate science. With YouTube videos, regular appearances on Fox and Friends, and social media campaigns, the group’s executives have sought to convince lawmakers and the public that a transition away from oil, gas and coal would harm Americans.
They have frequently seized on current events to promote dubious narratives, pinning high gasoline prices on President Biden’s climate policies (economists say that’s not the driver) or claiming the 2021 winter blackout in Texas was the result of unreliable wind energy (it wasn’t).
They travel the nation encouraging state lawmakers to punish companies that try to reduce carbon emissions. And through an initiative called Life:Powered, the group makes what it calls “the moral case for fossil fuels,” which holds that American prosperity is rooted in an economy based on oil, gas and coal and that poor communities and developing nations deserve the same opportunities to grow.
“When you look at their advocacy, it is consistently a false choice between being environmentally responsible and enjoying economic prosperity,” said Jeff Clark, chief executive of Advanced Power Alliance, an Austin-based trade group for renewable energy companies. “They’re against offshore wind, yet they spent decades advocating for offshore oil drilling. They are against subsidies, but only when it applies to renewables. They’re for looser restrictions on fracking and drilling, but greater restrictions for solar and wind. This organization exists to defend fossil fuels from any threat to their market share.”
On Thanksgiving, Jason Isaac, an executive at the group, tweeted “Today, I’m thankful to live a high-carbon lifestyle and wish the rest of the world could too. Energy poverty = poverty. #decarbonization is dangerous and deadly.”
Mr. Isaac said that the benefits of oil, gas and coal outweigh the risks, and that while emissions may be warming the planet, the changes are modest and humans can adapt.
“Absolutely, man is having an impact, I just disagree with the argument that it’s dangerous,” Mr. Isaac said in an interview.
Mr. Isaac’s remarks run counter to the overwhelming scientific consensus that the burning of fossil fuels is already making weather more extreme, and if not quickly and sharply abated will lead to increasingly catastrophic floods, heat, storms, drought and social unrest.
“Just as the tobacco industry had front groups and the opioid industry had front groups, this is part of the fossil fuel disinformation playbook,” said David Michaels, an epidemiologist at the George Washington School of Public Health who has studied corporate influence campaigns. “The role of these so called policy organizations is not to provide useful information to the public, but to promote the interests of their sponsors, which are often antithetical to public health.”
Robert Henneke, the foundation’s executive director, disputed the assertion that it was a front for fossil fuel interests. “That characterization is inaccurate,” he said. He also said that most of the policies the foundation promotes have nothing to do with energy.
A Local Group Goes National
James Leininger, who earned a fortune selling medical beds, founded Texas Public Policy Foundation in 1989 to promote charter schools. As it evolved, the organization embraced other causes including criminal justice, immigration, border security, taxes, and energy.
Mr. Leininger bankrolled Rick Perry’s successful gubernatorial campaign in 2000, and Mr. Perry reciprocated by donating the proceeds of his 2010 book, “Fed Up! Our Fight to Save America from Washington,” to the group. Other wealthy conservative donors began writing checks, including Tim Dunn, an oilman who is the vice chairman of the board.
In 2015, the group moved into a $20 million six-story headquarters in downtown Austin, where the Texas Capitol is visible from the headquarter’s “Governor Rick Perry Liberty Balcony.”
When President Donald J. Trump tapped Mr. Perry in 2017 to serve as energy secretary, the group followed him to Washington, opening an office there and placing several senior officials inside the administration.
Mr. Trump nominated Kathleen Hartnett White, a fellow at the foundation, to lead the Council on Environmental Quality. Ms. White, who had once described believing in global warming as “a kind of paganism,” stumbled at a confirmation hearing, and the White House withdrew her nomination.
Susan Combs, another fellow at the group, became acting assistant secretary of fish, wildlife and parks at the Department of the Interior. Brooke Rollins, chief executive of the foundation, went to work at the White House.
Bernard McNamee, a onetime policy adviser to Senator Ted Cruz, the Texas Republican, joined the Department of Energy under Mr. Perry, then left for the Texas Public Policy Foundation, only to return to the Trump administration after a few months. Mr. McNamee is now a lawyer who advises fossil fuel companies.
Douglas W. Domenech, who ran the foundation’s efforts to block the Obama administration from regulating emissions from power plants, became assistant secretary at the interior department. He was later found to have violated federal ethics rules by meeting with foundation officials, creating the appearance that he was working on behalf of a former employer.
As the organization’s profile grew, donations ballooned from $4.7 million in 2010 to $25.6 million in 2021, the most recent year for which records are available. That allowed the group to expand its mandate far beyond the Lone Star state.
The foundation said much of its funding comes from individuals. Because it is a nonprofit, the Texas Public Policy Foundation is not required to disclose its donors. But publicly available tax filings show that the group has received money from fossil fuel companies including the coal giant Peabody Energy, Exxon Mobil and Chevron.
The foundation has also received at least $4 million from conservative donors including Charles G. Koch and David H. Koch, according to public filings. Koch Industries owns oil refineries, petrochemical plants and thousands of miles of oil and gas pipelines, and the brothers have a long history of funding efforts to block climate action. Many of the foundation’s executives and board members have worked for the oil and gas industry, including Mike Nasi, a top lawyer for coal companies who is a senior adviser to its Life:Powered project.
The energy policies supported by the Texas Public Policy Foundation largely line up with those of the fossil fuel industry. And in at least one instance, its work directly affected a donor, Peabody Energy.
For more than four decades, the Navajo Generating Station near Page, Ariz., burned coal from a nearby Peabody mine, releasing mercury, arsenic, sulfur dioxide and nitrous oxides from its smokestacks, along with carbon dioxide, while draining the underground water supply.
The rapid expansion of cheap, natural gas starting around 2007, combined with new emissions rules during the Obama administration, made the Navajo Generating Station too expensive to operate, and by 2017 it was slated for closure.
To try to attract new buyers for both the plant and the mine in 2018, the Texas Public Policy Foundation produced a video that portrayed the coal plant as not only a major employer for the Navajo nation but also a part of its culture. The video featured a Navajo girl speaking over Native American flute music.
“Papa says it’s the heart of the land,” she said as an image of the plant’s three smokestacks fill the screen. “Sometimes I think I can hear it beating.”
The effort wasn’t enough; the Navajo Generating Station closed in 2019. Peabody Energy did not return a request for comment.
Last year, the foundation set its sights on the fight in New England over the Vineyard Wind project, which will consist of 84 turbines located 14 miles off the coast.
Attorneys for the organization filed a lawsuit in federal court on behalf of fishing companies, working free of charge, and the foundation produced a cinematic YouTube video to promote the case. The video attacks wind energy, showing footage of rusted, stalled turbines and suggests that tax subsidies for wind turbines benefit “foreign governments.”
Meghan Lapp of Seafreeze Shoreside, a seafood wholesaler and one of the plaintiffs, said she hadn’t been aware of the foundation’s extensive work to dispute climate science but was willing to look past it.
“The fishing industry needed somebody to represent them,” she said. “When you’re at the point where you’re facing complete annihilation, you look for people who can help.”
Taking on New Fights
Since President Biden came to office pledging to make climate action a top priority, the organization has only increased its efforts to combat what it sees as the overblown response to global warming — disputing broadly accepted models that project an uptick in temperatures, questioning the viability of wind and solar energy and dismissing the 2015 Paris climate agreement as a political stunt that will “will push more people into poverty.”
When a storm led to blackouts across Texas in February 2021, the foundation blamed the blackouts on frozen wind turbines, even though utility officials said the primary cause was the state’s natural gas providers. The message was echoed by Republican politicians across the country and commentators including Tucker Carlson.
The Texas Public Policy Foundation continues to campaign against wind power despite the fact that Texas now generates almost a third of its energy from wind power.
It is also helping shape the law. When a Texas oil executive complained that he couldn’t get a bank loan to expand drilling operations, Mr. Isaac, a former state lawmaker who previously co-founded a nonprofit that promotes natural gas, drafted a bill directing the state to stop doing business with banks and companies that were divesting from the fossil fuel industry. Gov. Greg Abbott of Texas signed the law last year.
With encouragement from Mr. Isaac and a network of Republican state treasurers, four other states — West Virginia, Kentucky, Tennessee and Oklahoma — have passed similar laws. That has led some states to stop doing business with major financial institutions including Goldman Sachs, JPMorgan and BlackRock.
Meanwhile, the foundation is suing the Environmental Protection Agency, challenging its designation of greenhouse gases as a danger to human health and welfare, and this summer lodged its objection to a proposal at the Securities and Exchange Commission that would require public companies to disclose the financial risks they face from climate change.
As Republicans take control of the House of Representatives in January, the Texas group is poised to regain influence in Washington.
“It gives us a leg up,” Mr. Isaac said. “We’ve been educating staff on the Hill on our research, our positions and our messaging. We’re going to have more of an impact in Washington not only over the next two years, but over the next six years. It’s great.”
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