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SCOTUS Takes Over

Good boy, Congress! Now it’s your turn President

SCOTUS has set itself up as the sole arbiter of the constitutional limits on the power of the federal government. We say we have a federal government of limited powers. As I’ve noted in this series, one of the goals of the Founders was to keep the federal government from interfering in the internal affairs of the states. In the debates on the Reconstruction Amendments, there is a constant return to the idea that the feds shouldn’t infringe state power. And there’s the 10th Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Our federalism, or dual sovereignty, may have served political purposes in the late 18th Century, but now it’s created monstrous problems. By narrowly construing the limits of federal power and asserting control over congress and the president, SCOTUS has created or ignored horrifying problems and made it almost impossible for us to solve them. In this post I’ll look at several of them.

1. Democracy In Citizens United, the right-wing members of SCOTUS held that laws limiting PAC spending on elections were somehow unconstitutional. Now billions of dollars are spent on dark money contributions that benefit campaigns, and while we can assume these people are filthy rich, we don’t know who they are, and we have no to find out what they expect in return. (Hint: it’s not good government.)

In Shelby County v. Holder SCOTUS struck down Section 5 of the Voting Rights Act, the pre-clearance provision,

… because the coverage formula was based on data over 40 years old, making it no longer responsive to current needs and therefore an impermissible burden on the constitutional principles of federalism and equal sovereignty of the states. Fn omitted.

In Rucho v. Common Cause SCOTUS allowed partisan gerrymandering.

The Court ruled that while partisan gerrymandering may be “incompatible with democratic principles”, the federal courts cannot review such allegations, as they present nonjusticiable political questions outside the remit of these courts. Fn omitted.

In Brnovich v. DNC, SCOTUS upheld two Arizona laws making voting harder. The two laws had a disparate negative impact on poor people, mostly minorities. The explanation for this decision even in Wikipedia doesn’t make sense to me, but then, I’m in favor of voting. It was generally seen as the last step before complete dismantling of the Voting Rights Act.

That destruction was narrowly avoided in the recent Allen v. Milligan decision, where John Roberts didn’t reverse an earlier case, Gingles, discussed here. Gingles is a very narrow reading of §2 of the VRA, meeting Robert’s lifelong goal of making it really hard to win a VRA case.

A majority of SCOTUS has now decided not to further attack democracy by adopting the ridiculous independent state legislature silliness. Of course they reserved their own supremacy.

These cases make voter suppression easy, and Red states have imposed a startling array of limitations. For example, Texas passed a law limiting drop boxes for mail-in ballots to one per county. In this interview Rep. Terri Sewell of Alabama, a sponsor of the John Lewis Voting Rights Advancement Act, describes some more.

The intent is clear. Continuing centuries of practice, SCOTUS revanchists rule that states are free to restrict voting any way they see fit, no matter the impact on democracy. As a result, SCOTUS is enabling minority rule.

The main impact is on cities, which are routinely cracked and packed to restrict their political power. For example, Texas tightly controls the ability of large cities to govern themselves. Recently cities were forbidden from requiring water breaks for workers as they swelter under a heat dome for the third week.

How long are Dallas, Houston, Austin and San Antonio residents willing to see their taxes spent in small country towns while rural religious fanatics control their personal lives?

2. Women’s Health As I’ve noted Alito’s decision in Dobbs doesn’t comport with constitutional law as I learned it in the long ago. But its consequences have been sickening. Jessica Valenti tries to keep track of attacks on women in her substack. Pregnant women are rufusing to travel to Red states or plan to leave them over health concerns.

Not content with controlling the lives of women who seek treatment inside their jurisdictions, the anti-women states pass laws with extra-territorial effects, like Texas’ SB 8, the Bounty law. These states claim the right to attack citizens of other states who provide care. Blue states are responding by enacting shield laws, refusing to recognize the demands of the aggressors. Here’s an explainer from Vox. Shield laws typically operate to protect all kinds of health care criminalized by legislators in Red States, including gender-affirming care.

This sets up a serious conflict between the states, perhaps reminiscent of the fury over the Fugitive Slave laws. How long will normal people put up with these assaults?

3. Taking away Congressional power SCOTUS is working to hamstring Congress. One obvious example is Shelby County v. Holder, where SCOTUS said Congress didn’t work hard enough to justify renewal of the VRA.

In the middle of the Covid crisis, Congress indicated OSHA should adopt a rule under its emergency authority requiring larger employers to protect their workers. OSHA complied. SCOTUS struck that down on the shadow docket. SCOTUS ruled that Congress couldn’t delegate the management of the crisis to an agency but had to do something specific to prove to SCOTUS Congress did its homework.

In EPA v. West Virginia, SCOTUS said Congress had to pass a new bill if it wanted to do anything serious about climate change. It created a brand-new constitutional rule to explain its decision, which the creators gave the laughable title major questions doctrine. It says that if 5 members of SCOTUS think something is a big deal, Congress can’t delegate authority to an agency under general language, but must specifically authorize the agency to act in a way those 5 oracles think conclusive.

We’re told the solution is through the ballot box. How long will we put up with this sham voting regime when SCOTUS feels free to slap down laws that don’t meet its ever-changing standards?

4. Controlling executive powers In the middle of the Covid crisis, district court judges enjoined enforcement of vaccine mandates for health care workers and rebellious members of the military. The injunctions were upheld by appellate courts. Then SCOTUS overturned them after an emergency hearing. The lower courts set themselves up as arbiters of the nation’s military and health care policies. SCOTUS implicitly agreed that lower courts were entitled to do so, even as it overruled these outrageous decisions.

Shortly after taking office, Biden established immigration enforcement priorities. Ken Paxton, the indicted, impeached, and wildly partisan Attorney General of Texas, filed suit to block those priorities and establish priorities he liked. The lower courts granted a stay and SCOTUS allowed that stay to remain in effect for a year. Then in US v. Texas, a recent decision I haven’t read, SCOTUS overruled the 5th Circuit. This is typical for any decision of the executive. Courts at all levels feel free to impose stays and screw around for months while the problem festers.

How long can we let the judiciary prevent us from dealing with massive problems before we protect ourselves from their ignorance and their dangerous ideology?

Note: Please remember that you should not say, or even think, that SCOTUS is an illegitimate power-grabbing rabble intent on imposing their minority views. It hurts their feelings and detracts from the sanctity of their holy calling.

Graphic: Quino Al via Unsplash (mod by Rayne)

Three Things: A Call to Action for Voting Rights [UPDATE-2]

[NB: check the byline, thanks. Update(s) at the bottom of the post. /~Rayne]

It’s time to go to the phones and demand your elected members of Congress not only support civil rights but fulfill their oaths of office.

Before I forget, here’s what you’re going to need:

Congressional switchboard: (202) 224-3121 or use Resist.bot

You may also look up your senators’ local offices online and call the one closest to you.

When you call you’re going to remind them the people are guaranteed under the Constitution a republican (little r) form of government under Article IV, Section 4:

The United States shall guarantee to every State in this Union a Republican Form of Government…

The text may specifically say the states are guaranteed this, but it means that every state and in turn its citizens shall be assured their government is of, by, and for the people, with government’s powers arising from their consent. No closed clique will govern opaquely for narrower interests.

To that end every citizen must be assured the right to vote as part of that guarantee. We expect our elected officials to deliver on that, not to act like some star chamber.

Call and demand this through the support of the John Lewis Voting Rights Advancement Act and the For the People Act, letting no procedural rule like the filibuster get in the way of the greater obligation to fulfill their oaths.

~ 3 ~

John Lewis Voting Rights Advancement Act, S.4 (JLVRAA) undoes much of the damage done to the Voting Rights Act of 1965 caused by the Supreme Court’s absurd decision in Shelby County v. Holder (2013).

Because of Shelby County v. Holder, states have been able to violate citizens’ voting rights as states are no longer held to a federal standard to ensure they do not discriminate against voters.

This violates the 14th Amendment and its Equal Protection Clause; depending on the state in which U.S. citizens resided, they may not be assured the same voting rights as citizens in other states.

The JLVRAA:

– Prevents states from reverting to discriminatory polling policies including but not limited to literacy tests and poll taxes with a new federal preclearance policy evaluating polling changes;

– Establishes adequate advance notice to citizens of changes to voting rules by states;

– Allows the U.S. Attorney General to assign observers where racial discrimination against voters is most likely;

– Not only requires federal approval for policies impacting the ability to cast a ballot or register to vote, but ensures availability of language assistance for ESL voters as well as fairness in redistricting.

This bill does not replace the 1965 Voting Rights Act but works hand in glove with it to protect every citizen’s right to vote.

~ 2 ~

The For the People Act, S.1 also supports the 1965 Voting Rights Act by:

– Expanding automatic voter registration to every state;

– Restoring voting rights to Americans who have completed their felony sentences;

– Establishing independent redistricting commissions in every state to end partisan redistricting.

– Changes ethics and campaign finance rules to reduce improper and unethical influence on legislation.

You’d think this would be a no-brainer piece of legislation.

~ 1 ~

This video by David Pepper offers the clearest explanation I’ve found as to why the filibuster must go when it comes to voting rights.

Our rights are guaranteed by the Constitution. Our elected members of Congress have a duty to ensure the guarantee is fulfilled as part of their oath of office.

Their oath is NOT to changeable, non-permanent procedures which have benefited a narrower class of citizens.

Insist your senators fulfill their oath and end the filibuster for any civil rights legislation including the JLVRAA and Freedom to Vote Act.

This applies equally to every member of Congress, no matter what state or party affiliation; they’ve sworn the same oath to defend and uphold the Constitution.

~ 0 ~

Perhaps I could have written a shorter hortatory post; if I’d felt less than I do about this I might have, but these bills are essential to the preservation of our democratic republic.

Bottom line: call your senators and demand they fulfill their oaths by passing the JLVRAA and Freedom to Vote Act, ending the filibuster as necessary to pass these bills.

Congressional switchboard: (202) 224-3121 or use Resist.bot

Now go – get in good trouble. Let us know how you did in comments.

~ ~ ~

UPDATE-1 — 5:00 PM —

Looks like there may have been a breakthrough on a procedural basis:


Fingers crossed this works. Can’t be certain we have 50 senators supporting these two bills yet.

If your senators are Republicans or Independents, call them anyhow. All 100 senators swore the same oath.

~ ~ ~

UPDATE-2 — 1:00 P.M. 13-JAN-2022 —

Last evening Michael Li of the Brennan Center noted the two voting rights bills have been consolidated, which may make the “message between the Houses” procedure much easier.

This morning Democracy Docket’s Marc Elias noted a change adding anti-subversion wording:

So the new “Freedom to Vote: John R. Lewis Act” isn’t just a consolidation but an improved bill.

I need to confirm the improvement may get around that corrupt twit Sen. Marsha Blackburn’s block of three election security bills which were intended to prevent foreign interference and tampering with electronic voting machines over the internet. (By the way, racist Blackburn is up for re-election in 2025. Ditch her, Tennesseeans.)

The problem even with the procedural maneuvering remains Sen. DINO Sinema who has given a speech this morning which Sen. McConnell praised. That should tell you all you need to know.

Keep calling your senators including GOP senators. The ones who are more centrist like Murkowski in Alaska may be amenable — especially Murkowski given the percentage of voters in her state who are Native American.

They Should Have Just Called It a Poll Tax

I’m grateful that a 3-judge panel just unanimously held that Texas’ Voter ID law violates the Voting Rights Act. (See Ari Berman for background and Rick Hasen for analysis.)

But given this language of the decision (as cited by Berman), couldn’t they have simply called it a poll tax?

According to undisputed U.S. Census data, the poverty rate in Texas is 25.8% for Hispanics and 23.3% for African Americans, compared to just 8.8% for whites. This means that the burdens of obtaining [voter ID] will almost certainly fall more heavily on minorities, a concern well recognized by those who work in minority communities.

…Undisputed census data shows that in Texas, 13.1% of African Americans and 7.3% of Hispanics live in households without access to a motor vehicle, compared with only 3.8% of whites.

… while a 200 to 250 mile trip to and from a DPS [Department of Public Safety] office would be a heavy burden for any prospective voter, such a journey would be especially daunting for the working poor. Poorer citizens, especially those working for hourly wages, will likely be less able to take time off work to travel to a DPS office—a problem exacerbated by the fact that wait times in DPS offices can be as long as three hours during busy months of the year. This concern is especially serious given that none of Texas’s DPS offices are open on weekends or past 6:00 PM, eliminating for many working people the option of obtaining an EIC [“election identification certificate”] on their own time. A law that forces poorer citizens to choose between their wages and their franchise unquestionably denies or abridges their right to vote. [my emphasis]

This is, for someone making minimum wage who would have to take a day off work, an $80 fee to vote, or 6% of an entire month’s wages. Even ignoring the problem with transportation (which involves additional costs), that is a significant burden for a working poor person, much less a senior living on a fixed income.

It’s a poll tax. It’s time to start calling poll taxes poll taxes again.