10 January 23
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He knew it. I knew it. And America should know it, too.
Walt, who died last week at the age of 90, was the lunar module pilot for the Apollo 7, the first successful manned operation of the Apollo missions. Without that “perfect mission,” our flight to the moon never would have happened.
He was a lifetime friend. Selected into the third class of NASA astronauts with me in 1963, Walt was part of the backup crew for Apollo 1, along with Wally Schirra and Donn Eisele. When Apollo 1’s crew died tragically in a launchpad fire in January 1967, the backup crew became prime.
It might be hard for people to grasp the pressure under which Walt and that Apollo 7 crew operated. The prior crew never reached space. The American public was restless, and Apollo 7 in some ways was a “go/no go” mission. During the 11-day flight in 1968, the crew had to test and adjust hundreds of systems — everything from life support, engines and communications to basic electrical hardware — on a spacecraft never flown before. The Soviets were hard on our tail. The mission had to be perfect — and it was.
Walt always stepped up. He was part of the Apollo 1 accident review board and helped redesign the Apollo capsule. Having tested the capsule systems the day before the tragedy, he was in a special position to assess the platform. He suggested design changes, including rethinking the environmental control systems and re-engineering the spacecraft for safety. That ensured success for all subsequent Apollo missions.
If the review board had gotten it wrong, we would probably have had a catastrophic event in space — long before we got to the moon.
Each of us got to the program in a different way. Mine was the U.S. Military Academy; Walt’s was studying physics, engineering and working hard. His patience, patriotism, courage and love of flying made him a natural fighter pilot and astronaut.
We worked well together. Together, along with Neil Armstrong and Gene Cernan, we sat in front of congressional oversight committees in the 1990s to share a common view: America cannot afford to lose our leadership edge in space. Human exploration is essential. We must return to the moon, and then go farther.
Finally, on an individual level, Walt knew something about exceptionalism. He flew 54 combat fighter missions in Korea, logged more than 4,500 hours in 40 different planes and spent 263 hours in space.
Less well known might be Walt’s wry wit, candor and depth. In a world of egos, Walt always had his in check. Walt’s other hallmark was gratitude, for everything — for the chance to fly for the Marines, for becoming an Apollo astronaut and for being able to serve the nation. He and his wife, Dot Cunningham, made it a point to be at mission anniversaries, including the 50th anniversary of Apollo 11 in 2019, held at the Ronald Reagan Presidential Library. I was grateful for that.
Bottom line: We have lost a real treasure in Walt. Americans should give him thanks.
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Rudy Giuliani helped amplify Donald Trump's false election claims. (photo: Jeff Kowalsky/Getty)
The order, issued in November, also asks the former New York mayor to provide testimony
The subpoena, which was issued in November, also asks Giuliani to provide testimony, said the person, who declined to be identified as they were not authorized to speak publicly on the matter.
The nature of the inquiry by the US attorney in Washington DC, which began before special counsel Jack Smith was appointed to oversee investigations into Trump, remains largely under wraps.
Giuliani, who has served as Trump’s personal attorney, did not respond to requests by Reuters for comment.
A spokeswoman for the US attorney for the District of Columbia did not immediately respond to a request for comment.
The source said the subpoena sought, among other things, copies of any retainer agreements between Trump and Giuliani, or the Trump campaign and Giuliani, and records of payments and who made those payments.
In December, a District of Columbia attorney ethics committee said Giuliani violated at least one attorney ethics rule in his work on a failed lawsuit by Trump challenging the 2020 election results.
Giuliani’s New York state law license was suspended in June 2021 after a state appeals court found he had made “demonstrably false and misleading” statements that widespread voter fraud undermined the 2020 election won by his Democratic opponent, Joe Biden.
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Ukrainian servicemen fire at Russian positions on the outskirts of Bakhmut on December 30, 2022. (photo: Sameer Al-Doumy/AFP)
Moscow’s troops see the capture of Soledar as a way to envelop the strategic front-line town of Bakhmut.
“The enemy literally steps on the corpses of their own soldiers, massively uses artillery, volley fire systems, and mortars, covering even their own soldiers with fire,” Maliar said.
In the early hours of Tuesday, Ukrainian President Volodymyr Zelenskyy confirmed Russia’s invading army was concentrating its greatest efforts on Soledar.
“It is extremely difficult — there are almost no whole walls left,” Zelenskyy added.
The Russians need to capture Soledar to encircle Bakhmut, 10 kilometers to the south.
Moscow’s forces have been storming Bakhmut since mid-summer in a bid to disrupt Ukrainian communications, Britain’s defense ministry said in a statement. “Part of the fighting has focused on entrances to the 200km-long disused salt mine tunnels which run underneath the district. Both sides are likely concerned that they could be used for infiltration behind their lines,” the ministry added.
Bakhmut is Russia’s main military objective in the eastern region of Donbass, as well as its main obstacle for the further occupation of Donetsk province.
Although, just like Soledar, Bakhmut was largely destroyed during fighting, Russians still cannot take it, even though Russian army commanders and Wagner mercenaries’ leader Yevgeniy Prigozhin has been sending waves of hundreds of soldiers to their deaths in attempts to seize it.
Prigozhin has claimed that every house is a fortification in Bakhmut and soldiers have to fight for every 300 meters there. Russia’s merciless tactics in that area have already won the macabre title of the “meat waves of Bakhmut.”
Prigozhin has styled the occupation of Bakhmut as his personal project. He claimed that is an important logistics center and a central point of the eastern front.
“It is a unique landscape — ravines and heights, which are natural tunnels. And the icing on the cake is the system of Soledar and Bakhmut salt mines, actually a network of underground tunnels. There you not only can shelter a cluster of people at a depth of 80 meters-100 meters, but also move tanks and infantry fighting vehicles,” Prigozhin’s press service said in a statement.
On January 6, the Russians managed to break into the town and, as of now, Russians likely control of most of the settlement, the British ministry said.
On the Ukrainian side, the 46th amphibious assault brigade is fighting the overwhelming Russian forces in Soledar.
“The situation is difficult. Critical. But there are definitely opportunities. We haven’t seen such heroism, chaos, and self-sacrifice even near Kherson, honestly. People do, have done, and will keep doing incredible things,” the 46th brigade said in an official statement on Tuesday. “We hope that all this was not in vain. And it was really necessary. Otherwise, there is no other way to explain such a large number of lives left here.”
Zelenskyy sought to allay those fears. “Due to the resilience of our warriors there, in Soledar, we have gained additional time and additional forces for Ukraine,” he said.
Zelenskyy described Russian tactics near Soledar as madness. He claimed it is not clear what Russia wants to gain there. Everything in the area is completely destroyed, there is almost no life left.
“The whole land near Soledar is covered with the corpses of the occupiers and scars from the strikes. This is what madness looks like,” Zelenskyy said.
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People light candles and place figures and flowers at a makeshift memorial along the Las Vegas Strip for the Las Vegas mass shooting victims, who lost their lives after a gunman attack, in 2017, in Las Vegas, Nevada. (photo: Bilgin S. Sasmaz/Getty)
The Supreme Court must resolve a terrifying legal fight over whether rifles with “bump stocks” are legal.
One reason this shooting was so deadly is that the shooter used a device known as a “bump stock,” which effectively allows widely available semi-automatic rifles to mimic automatic weapons (the term “semi-automatic” refers to guns that expel one bullet for each pull of the trigger). Thanks to this device, the Las Vegas shooter was able to fire about nine shots every second.
In response to this shooting — the deadliest mass shooting in recent US history — and others, even the Trump administration concluded that bump stocks are intolerable. Federal law makes it a crime to possess a “machinegun,” and a Justice Department rule that took effect in 2019 clarifies that a weapon that is modified by a bump stock to allow automatic fire qualifies as a machine gun.
Now, however, that rule is in grave danger. On Friday, the United States Court of Appeals for the Fifth Circuit handed down a decision striking down this Trump era rule. Given the Fifth Circuit’s political leanings — the Court routinely hands down legally dubious decisions implementing far-right policy goals — this outcome is not surprising. But, while much of the Fifth Circuit’s reasoning is difficult to defend, one of its arguments against the bump stock ban is plausible.
As the Fifth Circuit notes in its Cargill v. Garland opinion, moreover, other judges are starkly divided over whether federal law permits the Justice Department to ban bump stocks. Ten years ago, this would have been a slam dunk case in favor of the ban. While the law governing machine guns can be read in two different ways, the Court’s decision in Chevron v. Natural Resources Defense Council (1984) ordinarily requires judges to defer to a federal agency’s interpretation of a statute when that statute is ambiguous.
But decisions like Chevron — indeed, virtually all decisions calling on the justices to defer to anyone other than themselves — are very much out-of-favor on this Supreme Court. And, while Chevron technically has not been overruled, the Court’s six Republican appointees have largely abandoned it. (One member of the Court, Justice Neil Gorsuch, has argued that Chevron should not apply specifically to criminal statutes, but his opinion making this argument was joined by no other justice.)
And that means that the legality of the bump stock ban is genuinely uncertain, and that it will almost certainly be decided by a Supreme Court that is hostile both to gun laws and to regulatory actions by federal agencies like DOJ.
The uncertain legality of the bump stock ban, briefly explained
Most automatic weapons use an internal mechanism to repeatedly fire the weapon for as long as the shooter holds down the trigger. These weapons are clearly illegal under the federal ban on machine guns.
Bump stocks, by contrast, are external devices that use the gun’s own recoil to repeatedly pull the trigger, enabling a semi-automatic weapon to fire nearly as fast as a traditional automatic weapon. Essentially, they cause the gun’s trigger to buck against the shooter’s finger as the gun’s recoil causes it to jerk back and forth, repeatedly “bumping” the trigger and causing the gun to fire over and over again.
This particular mechanism matters because the federal machine gun ban plausibly can be read to exempt devices like it, that repeatedly pull a gun’s trigger. That law prohibits weapons that “automatically” fire more than one shot “by a single function of the trigger.”
Judges across the country have split on how to read this statute. A majority of the Fifth Circuit’s judges, the overwhelming majority of whom were appointed by Republican presidents, claim in Cargill that bump stocks successfully evade the federal machine gun ban. Though these judges concede that bump stocks allow semi-automatic weapons to be fired at an accelerated rate, they argue that “the fact remains that only one bullet is fired each time the shooter pulls the trigger.”
That’s certainly one plausible reading of the federal law, but, as multiple other courts have explained, the law can also be read a different way. As the DC Circuit explained in Guedes v. ATF (2019), the law’s reference to “a single function of the trigger” could also be read to mean “a single pull of the trigger from the perspective of the shooter.” Under this reading of the statute, bump stocks are illegal machine guns because “the shooter engages in a single pull of the trigger with her trigger finger, and that action, via the operation of the bump stock, yields a continuous stream of fire as long she keeps her finger stationary and does not release it.”
The Fifth Circuit, for its part, spends much of its opinion arguing that the statute is unambiguous, and can only be read in the way that most of its judges prefer. But that argument is untenable. The mere fact that so many federal judges do not share this reading of the statute — and the fact that the Trump administration believed that the alternative reading of the statute was, at least, reasonable — should have given the Fifth Circuit pause before it claimed to have discovered the only possible way to read this ambiguous law.
Under Chevron, moreover, when a federal law is ambiguous, courts typically should defer to a federal agency’s reading of that law. So, in this case, the Fifth Circuit should have deferred to the Justice Department’s conclusion that the ambiguously drafted machine gun ban does extend to bump stocks.
But, while the Court has not yet explicitly overruled Chevron, the Supreme Court’s most recent decisions governing federal agencies’ interpretations of federal law are inconsistent with Chevron and seem to reject the proposition that courts should defer to federal agencies — at least over matters the Court deems of “vast ‘economic and political significance.’” Some members of the Court have gone even further, calling for Chevron to be reconsidered.
One problem with this approach, however, is that the machine gun ban is genuinely ambiguous. So, if courts do not defer to the Justice Department’s interpretation of the law, it is unclear how, exactly, they are supposed to read the law. And that means that, without Chevron, there is considerable uncertainty about whether bump stocks are legal or not.
The strongest argument against the bump stock ban
Though most of the Fifth Circuit’s opinion rests on its poorly reasoned conclusion that the machine gun statute is unambiguous, the court does devote a few pages to a more defensible argument — that the federal statute should be read to exclude bump stocks because, as the Supreme Court held in Rewis v. United States (1971), “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”
That is, when a criminal law can be read in multiple ways, some of which would render a criminal defendant’s actions illegal and some of which would not, the tie should go to the defendant. As a general rule, people should not be fined or sent to prison over an ambiguous law that does not adequately convey to them what sort of conduct is illegal.
The federal ban on machine guns carries a criminal penalty of up to 10 years behind bars. And, though the Cargill case does not involve a criminal prosecution — the plaintiff is a gun owner who previously owned bump stocks but gave them up after DOJ announced the ban — the Fifth Circuit’s decision would prohibit the government from prosecuting anyone caught with a bump stock.
But as Judge Stephen Higginson, an Obama appointee, writes in his Cargill dissent, there are several reasons to doubt whether the rule of lenity should apply to the bump stock ban. For one thing, as the Supreme Court said in Barber v. Thomas (2010), “the rule of lenity only applies if, after considering text, structure, history, and purpose, there remains a ‘grievous ambiguity or uncertainty in the statute,’ such that the Court must simply ‘guess as to what Congress intended.’”
Perhaps it would be better if the courts were to read the rule of lenity expansively to prohibit criminal statutes from being enforced if they are the least bit ambiguous, but this is certainly not the approach that the Fifth Circuit has taken in its previous decisions. In United States v. Palomares (2022), for example, the Fifth Circuit labeled a federal law “perplexing” before construing it against a criminal defendant.
It’s conceivable, in other words, that the deeply ideological Fifth Circuit is operating in bad faith, applying a permissive rule to gun owners that it would not apply to other criminal defendants. This certainly wouldn’t be the first time that Fifth Circuit judges bent the rules to achieve their preferred outcome.
But, despite the problems with the Fifth Circuit’s lenity analysis, this approach does have one clear virtue. Without Chevron, courts need to rely on something to determine how an ambiguous statute must be read, and an expansive rule of lenity, at the very least, enables courts to make this determination in criminal cases.
If that rule is to be taken seriously, however, it would need to apply to all criminal defendants. And not just to defendants charged with violating gun laws — or other laws that Republicans typically do not like.
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Rynn Azerial Willgohs and Zara Crystal are both considering leaving the U.S., a country they say is becoming too hostile for trans people like them. (photo: Courtesy of Willgohs)
“All you need to do is look at the news and see how bad it’s going to get.”
The national landscape, accompanied by some of her own personal experiences, has made a future in the U.S. feel untenable for Willgohs. In March 2021, when Willgohs had just started her transition, she was traveling across the state for work when she decided to stop at a public bathroom. A man followed her inside and pushed her up against a wall. “I thought he was going to choke me to death,” she told VICE News. Today, she mostly feels safe in Fargo, North Dakota, where she lives, but she’s careful in rural areas. And when she leaves the state, she often doesn’t feel safe at all.
“There’s like 30 states right now I wouldn’t even drive through,” Willgohs said.
Her own experiences, and the increasingly hostile national climate, inspired Willgohs to start TRANSport, a budding non-profit that seeks to help trans people transition, navigate bureaucratic mazes, and ultimately finance their journeys as they flee the country.
Willgohs is considering claiming asylum in Iceland, a country she visited last summer and considers more accepting—and safer—than the U.S. And she felt like being trans was a “non-issue” while there. Though there’s currently a lack of clarity around whether it’s even possible for trangender U.S. citizens to claim asylum elsewhere—and an expert told VICE News it’s unlikely—the devolving situation in the U.S. has inspired people like Willgohs to try.
“All you need to do is look at the news and see how bad it’s going to get in the country,” Willgohs said. “We’re accused of being pedophiles and of grooming children. We’re being accused of being a social contagion that makes every child think they are in the queer community. That’s the farthest from the truth.”
Willgohs first considered leaving the United States entirely in the summer of 2022, shortly after Roe v. Wade was overturned. She was on vacation in Iceland when the decision came down, and people who knew her as an advocate started calling her to express their concerns that the Supreme Court would target LGBTQ rights next. (Those concerns were warranted: In his concurring opinion in Roe, Justice Clarence Thomas welcomed legal challenges to marriage equality and other privacy-based rights, prompting the passage of federal marriage protections in December 2022.)
It was while she was fielding those phone calls that Willgohs stumbled on the United Nations High Commissioner for Refugees’ guidelines on refugee status based on sexual and gender orientation.
“I was like, ‘Wait a minute, this is crazy,” Willgohs remembered thinking. “I can actually declare asylum just because I’m trans?’”
She’s currently reaching out to LGBTQ organizations in European countries to learn more about the options that exist for her and the people she hopes to help flee.
Though TRANSport doesn’t have an official roster of clients yet, they have only just begun working and plan on accepting applications soon. Willgohs added that she’d like to start accepting applications for clients soon. “Hopefully we start taking applications toward the end of February and help people get the ball rolling to make the leap across the ocean,” she said, adding that anyone who benefits from TRANSport services will also be asked to support future clients.
About 30 people—about six locally in and near North Dakota and others peppered across the U.S.—have already reached out to the group since local media first reported on them, including a single gay man who is immigrating to the Netherlands and offered to marry an American so that they’d be able to relocate with him, Willgohs said. For now, TRANSport will primarily serve trans people in North Dakota, South Dakota, and Minnesota, but Willgohs said she’d either like to expand the group, or see similar organizations pop up elsewhere.
“Given what we’re seeing in terms of states proposing more and more harsh laws that target trans people as well as violence that we’re seeing in our communities, it doesn’t surprise me that people will seek other places and other countries,” Erin Reed, a trans activist and researcher, told VICE News.
Willgohs’ work has inspired others as well. Shortly after Willgohs arrived at her decision, her colleague, Zara Crystal, told Willgohs that she was also weighing her future in the U.S. and expressed interest in relocating to Sweden. “Ever since I can remember, I never felt safe, comfortable, or at home in this country,” Crystal told VICE News. She now helps run TRANSport, and is considering leaving the U.S. at the end of 2024.
The 20-year-old came out as trans as a teenager, but, like Willgohs, Crystal was forced into conversion therapy. Her parents eventually gave her an ultimatum: If she transitioned, they’d cut her off. Crystal’s parents have forbidden her from speaking to her siblings until they turn 18.
“We’re just riding out and hoping for the best and preparing for the worst at this point. A lot of people that I know are at least making plans to leave just in case stuff goes down,” Crystal said of marginalized people, including LGBTQ people. Crystal said Fargo is relatively safe compared to other regions in the state. But still, she’s experienced frightening discrimination, including death threats. Somebody also recently tried to run her over with their car, Crystal said.
The last few years have been marked by a dramatic uptick in anti-trans hate in the United States. In 2022 alone, more than 171 anti-trans bills—and more than 300 anti-LGBTQ bills—were introduced across the U.S. They’ve already begun in 2023 as well, with a bill proposed in Oklahoma that would ban gender-affirming care for people under 26. On top of all this, anti-trans political attacks have been propped up by anti-trans rhetoric on the far right—and in some cases, by respected media outlets. All this has set up a backdrop for violence, and in November, 2022, a mass shooting at Colorado Springs gay nightclub Club Q that left five people dead, including two trans people. Trans activists have even argued that the onslaught amounts to genocide.
Trans people are more than four times more likely than their cis peers to be the victims of violence, including rape and aggravated assault, and Black and brown trans people are at an even higher risk. Trans people are also more likely to suffer fatal violence, something the Human Rights Campaign has been tracking since 2013.
It’s because things have gotten so bad—and getting worse—that TRANSport was established in the first place. TRANSport, which started as a Facebook page, gained its non-profit status in November, meaning the group can now accept donations, Willgohs said. The group aspires to collect enough to help people navigate bureaucracy and access funds to legally change their gender on government documents ahead of travel, as well as apply for passports before then paying for flights to get them overseas. Willgohs also hopes to research healthcare systems and job opportunities in other countries and form partnerships with European LGBTQ groups so that people don’t feel stranded if and when they relocate.
“I wish TRANSport didn’t have to be a thing. I wish that we didn’t live in a country where our rights are regularly debated in our government,” said Lillian Guetter, president of Fargo Pride Collective and TRANSport collaborator. “But I’m glad Rynn has stepped up and made these big moves for us.”
The UN guidelines around LGBTQ asylum claimants are broad: The term “persecution…can be considered to involve serious human rights violations, including a threat to life or freedom as well as other kinds of serious harm.” Physical, psychological, and sexual violence are listed as threats that “would generally meet the threshold level required to establish persecution.” The guidelines also say that a person doesn’t need to have a history of persecution to potentially qualify for asylum.
Despite these guidelines, many countries in Europe have come under fire for failing to welcome LGBTQ migrants, and in 2017, when the European Union tried to tally the number of LGBTQ migrants seeking asylum, not a single member country was able to give an exact tally, which makes it difficult to determine whether countries are honoring UN guidelines. Sweden has welcomed some LGBTQ asylum seekers, in part because local advocacy groups fought in 2006 to update Swedish law so that fear of persecution as a result of gender identity and/or sexual orientation would explicitly be included within the definition of “refugee.” But Iceland, while known for its LGBTQ-friendly atmosphere, has reportedly opted not to welcome LGBTQ refugees.
And it’s unlikely that trans people from the U.S. will successfully claim asylum in countries like Sweden, Iceland, and Germany. “European cases, when it comes to trans cases, are generally very strict… asylum is really a high-bar process,” Nora Noralla, a human rights researcher based in Berlin, told VICE News. “It’s not hard for [Americans] to come to Europe… If any trans Americans want to come they have a lot of options. They don’t need to apply for asylum.”
There are LGBTQ people fleeing countries where people generally have significantly fewer rights than in the U.S. and they’re the ones who will be prioritized, Noralla said. “It’s still a first world country and strongest economy in the world. You still have rule of law, you still have human rights mechanisms,” Noralla said of the U.S. She added that refugee systems are designed for people who have no option but to flee their homeland altogether.
Noralla noted that U.S. citizens who want to flee states hostile to trans people, like Texas and Florida, can still theoretically relocate to blue states. “To apply for asylum you need to prove that the entire country isn’t safe for you,” Noralla said. “You need to prove this is a federal policy.”
In countries like Egypt and Saudi Arabia, trans people don’t have the same options, Noralla added. And by trying to claim asylum, U.S. citizens could further burden refugee systems in Europe that are already overwhelmed, Noralla said.
“European systems are already very crowded, very busy, very ill-funded, very backlogged, and they are designed to be the last refuge—literally—for people who have no other options in life,” Noralla said. “Americans do not fit that definition.”
Instead, Noralla pointed to other pathways, including freelance visas and studying abroad, as options for people who want to leave the U.S. (Willgohs told VICE News she’s looking into applying for an Icelandic work visa.)
“I know things are bad in the U.S. with increasing anti-trans legislation and anti-trans attitudes increasing,” Noralla told VICE News. “But that does not make them eligible for asylum and I hope they do not apply for asylum.”
Reed said she knows of some people, including trans influencers, who’ve relocated to Canada, but she said she’s unsure under what conditions. Despite this uncertainty, TRANSport is gathering funds and preparing to help trans Americans leave, a sign of how desperate the situation has become for some.
Even if some people can’t move successfully, Willgohs said, it’s a win if TRANSport is able to support some people through their transitions—by teaching people how to change their legal names and pronouns, for example.
And as the national picture worsens for transgender Americans, LGBTQ asylum seekers from other parts of the world are still trying to come to the country. According to the Transgender Law Center, transgender migrants have been granted asylum in the U.S. for belonging to a “particular social group” that is persecuted or at risk of persecution. Between 2007 and 2017, about 4,400 LGBTQ people sought asylum in the U.S. because of the way their gender or sexual orientation were being targeted, NBC reported. The Trump administration rolled back rights for asylum seekers, in part making it more difficult for women and LGBTQ people, but President Joe Biden canceled those limits on asylum eligibility in 2021.
Some U.S. states have indeed enacted policies to help make trans people safe. In 2022, California became the first sanctuary state for transgender people fleeing notoriously anti-trans states when and if they can afford it. But for some, it feels like a stopgap.
“A lot of people might be looking at the landscape that we’re currently sitting in and asking themselves, ‘If I move now, will this just be a temporary thing that protects me or will this be a longer-term move?’” said Reed, the trans activist. “Whenever we see places like Iceland or Canada and Sweden protecting their transgender population, I think that there’s definitely a drive to say, ‘let’s just leave this entirely and go somewhere where we know we’re going to be safe for a very long time.’”
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Speaker of the House Kevin McCarthy, R-CA, in the House chamber in Washington, D.C., Jan. 7, 2023. (photo: Alex Brandon/AP)
Republicans preserved the discharge petition in the new rules package, allowing any bill with 218 votes to come to the floor — even one codifying Roe v. Wade.
The maneuver, known as a discharge petition, was famously deployed by President Lyndon Johnson and his House allies to pressure reluctant opponents of civil rights to allow a vote for the Civil Rights Act on the floor. Under standard rules, the majority leader sets the floor schedule, in collaboration with the House Rules Committee, but a discharge petition can automatically pull a bill from committee and move it to the floor. Once the logjam was broken, it passed with significant support.
Rep. Alexandria Ocasio-Cortez, D-N.Y., deployed a discharge petition in the last Congress to pressure House Speaker Nancy Pelosi to move forward with a ban on congressional stock trading. Pelosi smothered the move by publicly agreeing to hold a vote, but then sabotaged negotiations.
With Democrats holding 213 seats in the 118th Congress, that leaves them five votes short of the number needed to bring a bill to the floor. For most legislation, five votes is far too high a hurdle to clear. It is exceedingly unlikely, for instance, that Democrats could find five Republicans to sign on to a discharge petition that created a vote on codifying Roe v. Wade, though there may be a small number of Republicans put in a difficult spot at home if they resisted signing.
A discharge petition to raise or eliminate the debt ceiling, on the other hand, could avert a financial crisis threatened by Freedom Caucus members who opposed Rep. Kevin McCarthy’s bid for the speakership. In exchange for their votes, Freedom Caucus members won a commitment that McCarthy would hold U.S. debt payments hostage in exchange for significant spending cuts across the board. But if Democrats could find five Republicans unwilling to risk default, which would spark a global financial crisis, a discharge petition would give those Republicans a route around their own leadership.
First-term Rep. Chris Deluzio, D-Pa., said that he saw real opportunities for bipartisanship when it comes to antitrust policy, and a discharge petition could get around McCarthy’s support for concentrated corporate power. “I think there’s some interest on their side in doing some of this. There certainly is on ours. If we can get the numbers, fine, we’ll do it, I’ll be part of that,” he said.
Rep. Raúl Grijalva, D-Ariz., said that a similar dynamic might be at play when it comes to immigration — “the desperation on the border,” as he put it — and the fentanyl crisis, if a handful of Republicans in blue districts feel pressure to get something done. “How can you not hear that and give it a fair opportunity,” he said. “If there’s common-sense, middle-ground, enforcement-slash-humanitarian, how can you turn that one down?”
And, of course, the fate of Republican Rep. George Santos of Long Island remains unclear. Santos is currently one of 18 Republicans serving in a district that voted for Joe Biden for president in the 2020 election. If Santos resigns or is booted from office, the question of codifying Roe in the resulting special election would be more salient with an active discharge petition underway, as it would move Democrats one vote closer to a majority.
In November, following the midterm elections, Ocasio-Cortez backed the idea of a discharge petition on abortion rights, though was concerned that Republicans might strip the discharge petition from the rules in the upcoming term. Their opportunity to do so quietly came and went on Monday. Any effort to change the rules in the middle of the term in response to a petition with momentum would at minimum attract national attention.
“Discharge petition is an excellent vehicle,” Ocasio-Cortez said in the interview. “Using rules is going to be quite important. I know that that’s going to be subject to negotiation within the Republican caucus as well. This is something that they’ve already started to use as a lever. … They are in a much weaker position as a party, which means they have more to concede — not us. And we can stand in that confidence, in that power a little bit more.”
David Segal, head of the group Demand Progress, which often works with both Democrats and Republicans on populist issues, said the motion to discharge opened up opportunities to push legislation opposed by party leadership. “Discharge petitions can be used to a variety of useful aims — from forcing members to take stances on popular issues, to potentially forcing votes on matters of important substance where there’s cross-partisan esteem, like antimonopoly policy, that could actually pass,” he said.
Democrats would have to move fairly quickly, however, to avert a financial crisis. First, a bill would have to be introduced and referred to committee, according to House rules and precedents. Then 30 legislative days would need to expire. Once 218 signatures are collected, another seven legislative days need to pass, at which point the motion would come to the floor on the second or fourth Monday after those seven legislative days are up. A legislative day is one in which the House is in session and then adjourns. A motion to discharge filed in February or March ought to be ripe by summer. The Treasury Department has not put a precise date at which default will occur, but the estimate is summer.
Using a discharge petition to avert default could, however, become a moot issue. Constitutional scholars have argued that the debt ceiling itself is unconstitutional: If Congress appropriates money, the executive is required to spend that money, not default because of a lack of borrowing authority when other avenues to fulfill the appropriations exist.
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Kevin McCarthy has ceded his speakership and control of the House Republican agenda to the most extreme fringe faction of his party. (photo: Anna Moneymaker/Getty)
“Kevin McCarthy has ceded his speakership and control of the House Republican agenda to the most extreme fringe faction of his party."
Early on Saturday morning, McCarthy was elected speaker of the House after a grueling, historic, and humiliating 15 rounds of voting. For five days, a group of Republican hard-liners blocked his bid for House speaker. The Californian made a series of extraordinary concessions to win support from his ultraconservative colleagues. Matt Gaetz, a hard-right Republican from Florida and one of McCarthy’s toughest holdouts, said he finally gave in because “I ran out of things I could even imagine to ask for.”
On Monday night, House Republicans voted 220-213 to enshrine some of the concessions into the chamber’s rules. The measure, which dictates how the 118th Congress operates, includes an addendum that enumerates other concessions that McCarthy agreed to. And House lawmakers told the New York Times they were worried that the speaker had agreed to even more handshake agreements that weren’t reflected in the written package.
The compromises McCarthy made in exchange for the speaker’s gavel could reshape the way the lower chamber operates. Among other concessions, McCarthy agreed to let any member call for a vote to unseat the speaker at any time; to give members of the Freedom Caucus, the most conservative bloc within the House, seats on powerful committees; and to allow lawmakers to propose more amendments on the chamber floor. Some of McCarthy’s compromises may have ramifications, as well, for climate policy.
“Kevin McCarthy has ceded his speakership and control of the House Republican agenda to the most extreme fringe faction of his party,” Josh Freed, the senior vice president for climate and energy at the Washington, D.C.-based think tank Third Way, told Grist. “There’s a real chance that Republicans are going to try to gut really important government investment on everything, including clean energy and climate.”
Freed is referring to a plank of the deal McCarthy struck with his hard-right colleagues to put a cap on discretionary spending — money approved by Congress and the president every year through the annual appropriations process. Discretionary spending includes all federal expenditures that aren’t funded by their own law. About 30 percent of the government’s overall spending is discretionary, including funding for many climate and environmental programs. New limits on that funding could affect clean energy research overseen by the Department of Energy, limit the Interior Department’s conservation efforts, and restrict disaster recovery distributed by the Federal Emergency Management Administration, among other projects.
Other elements of the deal, such as putting members of the ultraconservative Freedom Caucus on the House Rules Committee, which plays a pivotal role in influencing how legislation moves through the House, could have an indirect impact on climate policy by affecting the legislation lawmakers even get to vote on.
Prior to McCarthy’s capitulations to the most extreme wing of his party, there was a slight possibility that Democrats and Republicans could have found common ground on some key measures. McCarthy has his own climate agenda that he’s been honing for a handful of years — a response, in part, to the popularity of progressive Democrats’ Green New Deal. That plan, like other Republican climate policy proposals to date, fails to address the root causes of global warming or to slash emissions in line with scientists’ recommendations. Last summer, McCarthy unveiled a climate strategy that called for increasing domestic production of fossil fuels and exports of natural gas and speeding up the permitting process for big infrastructure projects.
Streamlining permitting is something members of both parties have said they’ve wanted to accomplish for years. In the last Congress, Democratic Senator Joe Manchin tried to move a bipartisan permitting reform bill forward but wasn’t able to garner enough support. Such a bill would have helped realize the full potential of the Inflation Reduction Act, the landmark climate spending bill passed by Democrats last year, by making it easier to build transmission lines to carry renewable power to customers.
Permitting reform might have been something that was addressed again this Congress, but Freed said McCarthy’s compromises make that prospect even more remote by ceding middle ground to the hard right. “It puts the possibility of legislating on issues like permitting reform, where there otherwise could have been a bipartisan solution that was conceivable, at extreme risk,” he said.
When it comes to passing climate policy, Representative Sean Casten, a Democrat from Illinois who has a background in clean energy development and just secured his third term in the House (and used to write for this publication), said it’s a foregone conclusion that a Republican House majority equals a lack of action on climate change. What McCarthy promised ultraconservatives doesn’t affect that equation much, in his view. Many Republican members of the House who are in powerful positions or sit on important committees represent fossil fuel producing regions and take hundreds of thousands of dollars from fossil fuel companies.
McCarthy himself hails from Bakersfield, California, a city so steeped in oil that its high-school football team, which McCarthy played on as a teenager, is called “the Drillers.” He received more money from oil and gas interests during the 2022 campaign than any other member of the House — more than $500,000.
“They are, understandably, hostile to anything that would reduce demand for fossil fuels or reduce the price of fossil fuels,” Casten said. “Progress on climate isn’t going to happen with Republicans in the majority.”
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