Do You Need A Reason to Vote for Catherine Cortez Masto?

Do you need a reason to get off your couch and head to the polls this fall to cast your vote for Catherine Cortez Masto for U.S. Senate?  Well here’s a good one:

Mitch McConnell told Fox News that he believes the NRA must approve of our next US Supreme Court justice nominee to receive any consideration by a Republican Senate.  The NRA disapproves of Judge Garland’s nomination, therefore, the current Republican majority will not allow his nomination to be brought to the Senate floor for a vote on confirmation.

This utter nonsense has to end.  We need to take the Senate back!  To do that, we need to make sure that Catherine Cortez Masto is elected to replace retiring Senator Harry Reid.  We cannot allow Republican Joe Heck to become Nevada’s next Senator and allow him to rubber stamp replacement of potentially FOUR retiring Supreme Court justices with “Scalia clones.”

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Supreme Court on DACA Tied 4/4 (Updated)

SupremeCourt

The Republican Congress has done everything possible to NOT to address effective and efficient Immigration Reform legislation.  And to assure that NOTHING happens, 113 Republicans chose to use our limited tax dollars to sue the President for attempting to take whatever action he can constitutionally take to resolve the situation that our current Immigration system finds itself in today.  21 red-state Republicans have also jumped into the fray to challenge the legality of President Obama’s DACA/DAPA actions.  Nevada’s own Rep. Joe Heck may talk a good story and may not have voted to “deport Dreamers,” but he’s done relatively nothing to resolve
immigrations issues and has in fact, voted to defund implementation of a presidential executive order called Deferred Action for Childhood Arrivals [DACA].

DACA and DAPA [Deferred Action for Parents of Americans] are  two programs outlined in Presidential Executive Orders issued in 2014 that are designed to shield roughly 4 million people from deportation and make them eligible to work in the United States.  They were challenged in Court by Texas, 25 other states, Congressional Republicans and a number of Governors individually.  By strategically filing their suit in right-leaning Federal Court Districts, they were able to get favorable decisions for blocking implementation of those Executive Orders.

That ruling was challenged and the case ended up before the supreme court for resolution. Resolution, however, was not forthcoming as no final ‘decision’ was reached.  This morning’s announcement from the Supreme Court declared that they couldn’t agree on the basis of the case.  Four justices sided with the lower court, and four justices sided with the President’s actions. That tie vote sets no national precedent, but it does leave the ruling by the lower court prohibiting implementation in place.

Since many believe that a single, right-leaning jurisdiction should not be able to dictate what our national laws should be, we can now anticipate that supporters of President Obama’s executive actions may try to coalesce a different group of states to file suit in a different jurisdiction sympathetic to their position to get a ruling forcing implementation.  If successful, that would create a potential ‘split’ allowing an executive order to be considered constitutional in some parts of the U.S., while viewed as unconstitutional in other parts of the U.S.

In the meantime, we’re in the midst of a Presidential Election year.  The presumptive Republican nominee, Donald Trump, has declared that he would scrap both DACA and DAPA and deport en masse, some estimated somewhere between 5 and 11 million people. The presumptive Democratic nominee, Hillary Clinton, has declared that she would keep both DACA and DAPA and find potential other ways to protect those who registered under those programs.

Elections are important folks.  There are some serious opportunity and economic costs associated with today’s ruling with puts not just those who trusted President Obama and registered for the program, but for a much larger population of people weary of what might happen if the government had information about them and are still sitting in the shadows.

We need to elect a Congress that is willing to dig in and work on issues.  We’ve now had a Congress unwilling to work for the money we pay them to manage our nation’s resources and laws.  It’s time for a change and I’m not talking about a change in the White House, but a change in Congress.


Statement from former NV Attorney General Catherine Cortez Masto, the Democratic candidate for Senate representing Nevadans re: Supreme Court Ruling on DACA/DAPA

“A knock on the door should not cause someone to fear that their family will suddenly be torn apart. This ruling is a setback for thousands of Nevada families, and Republicans like Donald Trump and Congressman Heck share the blame. This issue is personal for me – my grandfather came to this country from Chihuahua, Mexico. Contrary to what we hear from Republican politicians who call Mexicans ‘rapists,’ or promote debunked conspiracy theories about ‘Sharia Law’ coming to the United States, our country is stronger, not weaker, because of the contributions of immigrants. If Washington Republicans like Congressman Heck had actually done their job and passed comprehensive immigration reform, DACA and DAPA wouldn’t have even been necessary. Congressman Heck voted to join this anti-immigrant lawsuit that will result in families being torn apart – Nevada’s Latino community will hold him accountable for it in November.”

At the time of this writing, Rep. Joe Heck, the Republican candidate for Senate representing Nevadans has issued no statement regarding the Supreme Court’s ruling earlier this morning.


Hillary Clinton Statement on Texas v. United States

Today, following the Supreme Court’s deadlocked decision in Texas v. United States, Hillary Clinton issued the following statement:

“Today’s deadlocked decision from the Supreme Court is unacceptable, and show us all just how high the stakes are in this election. As I have consistently said, I believe that President Obama acted well within his constitutional and legal authority in issuing the DAPA and DACA executive actions. These are our friends and family members; neighbors and classmates; DREAMers and parents of Americans and lawful permanent residents. They enrich our communities and contribute to our economy every day. We should be doing everything possible under the law to provide them relief from the specter of deportation.

“Today’s decision by the Supreme Court is purely procedural and casts no doubt on the fact that DAPA and DACA are entirely within the President’s legal authority. But in addition to throwing millions of families across our country into a state of uncertainty, this decision reminds us how much damage Senate Republicans are doing by refusing to consider President Obama’s nominee to fill the vacancy on the Supreme Court. Our families and our country need and deserve a full bench, and Senate Republicans need to stop playing political games with our democracy and give Judge Merrick Garland a fair hearing and vote.

“This decision is also a stark reminder of the harm Donald Trump would do to our families, our communities, and our country. Trump has pledged to repeal President Obama’s executive actions on his first day in office. He has called Mexican immigrants ‘rapists’ and ‘murderers.’ He has called for creating a deportation force” to tear 11 million people away from their families and their homes.

“I believe we are stronger together. When we embrace immigrants, not denigrate them. When we build bridges, not walls. That is why, as president, I will continue to defend DAPA and DACA, and do everything possible under the law to go further to protect families. It is also why I will introduce comprehensive immigration reform with a path to citizenship within my first 100 days. Because when families are strong—America is strong.”

Las declaraciones de Hillary Clinton sobre Texas versus Estados Unidos

Hillary Clinton publicó las siguientes declaraciones luego de la decisión dividida en el caso Texas vs. Estados Unidos:

“La inhabilidad de la Corte Suprema de llegar a una decisión en el caso Texas vs. Estados Unidos hoy es inaceptable y nos confirma la importancia de esta elección. Como he dicho consistentemente, creo que el presidente Obama actuó adecuadamente dentro de su autoridad legal y constitucional al emitir las acciones ejecutivas DAPA y DACA. Estos son nuestros amigos y familiares, vecinos y compañeros de clase; DREAMers y padres de residentes permanentes legales. Ellos enriquecen nuestras comunidades y contribuyen a la economía todos los días. Debemos hacer todo lo posible bajo la Ley para proveerles alivio de la sombras de la deportación.

“La decisión de hoy de la Corte Suprema es puramente procesal y no deja ninguna duda del hecho que DAPA y DACA están totalmente bajo la autoridad legal del presidente. Pero en lugar de echar a millones de familias a través de todo el país en un estado de incertidumbre, esta decisión nos recuerda cuánto daño los senadores republicanos están haciendo al rehusar considerar nombrar la vacante del presidente Obama a la Corte Suprema. Nuestras familias y nuestro país necesitan y merecen que se nombre esa vacante y los senadores republicanos tienen que parar de seguir estos juegos políticos con nuestra democracia y darle al juez Merrick Garland una audiencia justa y un voto.

“Esta decisión representa más evidencia de cuánto daño Donald Trump le haría a nuestras familias, nuestras comunidades y nuestro país. Trump se ha comprometido en revocar las acciones ejecutivas del presidente Obama en su primer día de administración. Ha llamado a los inmigrantes mexicanos “violadores” y “asesinos”. Ha enfatizado que creará una “fuerza de deportación” para separar a 11 millones de personas de sus familias y hogares. No podemos permitir un presidente que promueve la intolerancia de esta forma.

“Creo que somos más fuertes cuando nos unimos, cuando damos la bienvenida a los inmigrantes, no cuando los degradamos; cuando construimos puentes no murallas. Es por esto que, como presidenta, implementaré fielmente DAPA y DACA y haré todo lo posible bajo la Ley para ir más allá y proteger las familias inmigrantes. Es por esto, también, que introduciré una reforma migratoria integral con un camino a la ciudadanía durante los primeros 100 días de mi administración. Porque cuando las familias están fuertes, el país está fuerte”.

 

 

 

 

New ‘Pro-Life’ Law Could Literally Kill Utah Women Who Attempt To Obtain An Abortion

— by Ian Millhiser  

CREDIT: AP PHOTO/ALEX WASHBURN
CREDIT: AP PHOTO/ALEX WASHBURN

A new Utah law will subject women to medically unnecessary risk in order to ward off a problem that almost certainly does not exist. It makes a significant new incursion on what remains of Roe v. Wade — at a time when the Supreme Court is signaling that anti-abortion state lawmakers have moved too far. And it will likely either drive up the cost of abortions or cause many clinics to stop performing certain kinds of abortion because they will need to recruit new specialist physicians in order to continue serving all women.

The law, colorfully labeled the “Protecting Unborn Children Amendments,” requires abortion providers who perform “an abortion of an unborn child who is at least 20 weeks gestational age” to administer an anesthetic or analgesic to eliminate or alleviate organic pain to the unborn child.” The law’s supporters claim that human fetuses are capable of feeling pain around the twentieth week of pregnancy, and that this bill will help eliminate that pain.

This claim about fetal pain, however, is scientifically dubious at best. According to a paper published by the Journal of the American Medical Association, scans for electrical activity in fetal brains suggest that “the capacity for functional pain perception in preterm neonates probably does not exist before 29 or 30 weeks.” As the same paper explains, fetal pain awareness “requires functional thalamocortical connections,” yet the brain fibers necessary to allow such connections do not start appearing until “23 to 30 weeks’ gestational age.”

Nevertheless, anti-abortion lawmakers frequently cite the idea that fetuses can feel pain at 20 weeks to justify restrictions on reproductive choice.

Utah law typically prohibits abortions around 22 weeks into a pregnancy, when the fetus is deemed viable. Thus, that state’s new law will primarily impact women who seek abortions during a narrow two-week period.

Yet the new law will subject those women to considerable risk. According to the Associated Press, the law will require doctors to either administer general anesthesia or “a heavy does of narcotics”to women impacted by the law. In rare cases, that could lead to a woman’s death. Though anesthesia-related deaths are in decline, approximately 34 patients per million died from anesthetics in the 1990s and 2000s.

And, while deaths are rare, serious complications ranging from nerve damage to “malignant hyperthermia” can result from anesthesia. Anesthesia can also cause long-lasting mental defects. According to Scientific American, studies “suggest that a high enough dose of anesthesia can in fact raise the risk of delirium after surgery,” and that “even if the confusion dissipates, attention and memory can languish for months and, in some cases, years.” (Though it should be noted that these mental side effects are especially likely to occur in elderly patients that are past childbearing age.)

As one doctor told the AP, “you never give those medicines if you don’t have to.” Now, however, thanks to this Utah law, doctors will have to.

That is, of course, unless the courts strike down the Utah law. Under Roe, states gain greater authority to regulate — or even ban — abortions as a pregnancy progresses. Yet, even in the latest stages of pregnancy, the health of a woman seeking an abortion has primacy. Abortion is always permitted “where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

Since Roe, however, the Supreme Court has carved away much of the right protected by that decision. Most notably, in Gonzales v. Carhardt, the Court upheld a ban on a method of abortion that was viewed by many doctors and medical associations as the safest method “for women with certain pregnancy-related conditions, such as placenta previa and accreta, and for women carrying fetuses with certain abnormalities, such as severe hydrocephalus.” Thus, in effect, the Court held that lawmakers could potentially make abortion less safe for many women who seek it.

Even after Gonzales, however, the Utah law is a significant escalation in the war against Roe. AfterGonzales, a woman who sought an abortion was still likely to receive a procedure that, in their doctor’s medical opinion, was the safest legal option — even if the single safest procedure was no longer legal. The majority opinion in Gonzales also claimed that “there is medical and scientific uncertainty” regarding whether to procedure at issue in that case was ever the safest medical option.

The Utah law, by contrast, imposes additional risk on women seeking abortions, despite the fact that there does not appear to be any medical benefits to subjecting a woman to unnecessary
anesthesia or narcotics. It is as if Utah required women to consume a small dose of strychnine before they can receive an abortion. If the dose is small enough, it probably won’t kill the woman, but the state would still be exposing women to a very dangerous chemical without any health-related reason to do so.


This material [the article above] was created by the Center for American Progress Action Fund. It was created for the Progress Report, the daily e-mail publication of the Center for American Progress Action Fund. Click here to subscribe. ‘Like’ CAP Action on Facebook and ‘follow’ us on Twitter

BREAKING: The Biggest Legal Attack On Unions In Decades Is Dead

— by Ian Millhiser
SupremeCourtWhen the Supreme Court met last January to hear an aggressive attempt to defund public sector unions, the news looked grim for organized workers. All five of the Court’s conservatives seemed ready to accept the plaintiffs’ legal arguments, a result that would have potentially had catastrophic financial consequences for many unions.

Then Justice Antonin Scalia died, and the anti-union litigants lost the fifth vote they needed to prevail.

On Tuesday, the Supreme Court announced the widely expected consequence of Scalia’s encounter with his own mortality. In a single-sentence order, the Supreme Court announced that the judgment of a lower court rejecting this effort to defund public sector unions “is affirmed by an equally divided court.” Friedrichs v. California Teachers Association is dead. A four-decade-old opinion protecting public sector unions shall live to see another day.

Friedrichs was an attack on what are alternatively called “agency fees” or “fair share fees.” As ThinkProgress previously explained,

Unions are required by law to bargain on behalf of every worker in a unionized shop, even if those workers opt not to join the union. As such, non-members receive the same higher wages (one study found that workers in unionized shops enjoy a wage premium of nearly 12 percent) and benefits enjoyed by their coworkers who belong to the union.

Absent something else, this arrangement would create a free-rider problem, because individual workers have little incentive to join the union if they know they will get all the benefits of unionizing regardless of whether they reimburse the union for its costs. Eventually, unions risk becoming starved for funds and collapsing, causing the workers once represented by a union to lose the benefits of collective bargaining.

To prevent this free-rider problem, union contracts often include a provision requiring non-members to pay agency fees.

The purpose of these fees is to ensure that non-members do not get something for nothing; they require those non-members to pay their share of the costs of obtaining the benefits of being in a union.

Prior to Friedrichs, the Court took two incremental steps in the direction of an eventual decision abolishing agency fees. Friedrichs was widely expected to be that decision. Instead, with the Court split 4-4, Friedrichs will have no effect and the Court’s previous precedents permitting agency fees will remain good law, binding on all lower court judges.

Ultimately, however, Tuesdays’ non-decision in Friedrichs only heightens the stakes in the battle to replace Scalia. If Scalia is replaced by a relatively liberal justice, whether that new justice is Supreme Court nominee Merrick Garland or someone else, then it is exceedingly likely that agency fees will continue to be legal. Should Scalia be replaced by another conservative, however, then Tuesday’s order will likely provide to be only a brief stay of execution for public sector unions.


This material [the article above] was created by the Center for American Progress Action Fund. It was created for the Progress Report, the daily e-mail publication of the Center for American Progress Action Fund. Click here to subscribe. ‘Like’ CAP Action on Facebook and ‘follow’ us on Twitter

4 Reasons Why States Suing to Stop Immigration Actions Stand to Lose Big

Immigration activists demonstrate at the Supreme Court in Washington in support of President Barack Obama’s executive order to grant relief from deportation in order to keep immigrant families together, March 18, 2016. The U.S. Capitol is in the background.

Immigration activists demonstrate at the Supreme Court.
SOURCE: AP/J. Scott Applewhite

 — by Tom Jawetz 

On April 18, the U.S. Supreme Court is set to hear oral arguments in a lawsuit, United States v. Texas, brought by more than two dozen states challenging an immigration enforcement policy by the secretary of homeland security. If successful, the lawsuit could tear apart millions of American families, while at the same time greatly undercutting the U.S. economy.

Twenty-six states filed a lawsuit challenging the Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, initiative along with the expansion of the existing Deferred Action for Childhood Arrivals, or DACA, initiative. Under DAPA, DACA, and expanded DACA, certain unauthorized immigrants who have lived in the United States for many years and who either came to the country as children or are the parents of U.S. citizens or lawful permanent residents can come forward, register with the government, pass background checks, and request deferred action—a temporary protection from the threat of deportation. With deferred action, such people are also eligible to request permission to work in the country legally. The implementation of both DAPA and expanded DACA has been temporarily placed on hold while the case works its way through the courts.

In suing to freeze DAPA and expanded DACA, these 26 states have chosen to forgo tens of billions of dollars in increased state gross domestic product, or GDP, not to mention the additional earnings of their own residents, as well as hundreds of millions of dollars each year in increased state and local tax revenue. This is significant in part because the 5th Circuit Court of Appeals decided that the plaintiff states had standing to bring this lawsuit based upon the district court’s finding that the state of Texas may end up spending “several million dollars” to issue driver’s licenses to some of the people who receive deferred action. In addition to these monetary losses, the plaintiff states are also threatening to tear fathers, mothers, brothers, and sisters away from the more than 2.6 million U.S. citizen family members with whom they live in these states. (see Table 2)

Here are four key facts you should know about the states that are suing to freeze DAPA and expanded DACA.

1. The plaintiff states stand to lose at least $91.9 billion in increased state GDP

Nationally, the three deferred action initiatives—DAPA, DACA, and expanded DACA—are estimated to grow the U.S. economy cumulatively by $230 billion over 10 years. The reasons for this are fairly simple. As professional economists and scholars in related fields recently explained in an amicus brief to the U.S. Supreme Court, when unauthorized immigrants gain work authorization and protection from deportation—even temporarily—they are able to find jobs that make full use of their skills and abilities, earn higher wages, and become even more economically productive.

What’s more, individual states can expect to see their economies grow as a result of these initiatives. Together, 18 of the 26 states suing to freeze DAPA and expanded DACA stand to lose an estimated $91.9 billion in increased state GDP over 10 years if the three deferred action initiatives are not fully implemented. And while the original DACA initiative is not under review in United States v. Texas, the 5th Circuit Court of Appeals’ decision places a cloud over it as well.

ShootingFoot-table1

2. Residents of the plaintiff states stand to lose an estimated $48.4 billion in increased earnings

Because of the enormous economic activity that would be generated by these initiatives, the cumulative earnings of American workers would increase by an estimated $124 billion nationally. In the 18 plaintiff states for which CAP has data, we estimate that implementing DAPA, DACA, and expanded DACA would raise the earnings of these states’ residents by more than $48.4 billion over 10 years.

3. The plaintiff states stand to lose nearly $272 million annually in increased state and local tax revenue

Unauthorized immigrants contribute enormous sums to state and local coffers through taxes:$11.64 billion annually, according to a new report by the Institute on Taxation and Economic Policy. Full implementation of the three deferred action initiatives would increase state and local tax contributions by unauthorized immigrants by an estimated $805 million each year.

The 26 states that are suing to block DAPA and expanded DACA would stand to gain an estimated $271.7 million annually in state and local tax revenue. Texas leads the way with the nearly $59 million it is estimated to gain each year in such revenue through the implementation of DAPA, DACA, and expanded DACA. (see Table 1)

And it’s not just states and localities that would stand to lose additional tax revenues: The nonpartisan Congressional Budget Office and Joint Committee on Taxation studied the budgetary effects of legislation to block DAPA, DACA, and expanded DACA and found that the bill would reduce federal tax revenues by $22.3 billion over a 10-year period, leading to a $7.5 billion increase in the deficit over that same period.

4. More than 2.6 million U.S. citizens live with a DAPA-eligible family member in the plaintiff states

By definition, the parents of American citizens or lawful permanent residents who would be eligible to apply for DAPA have deep roots in the United States. Nearly 70 percent of anticipated DAPA beneficiaries have lived in the United States for at least 10 years, and a full one-quarter have lived here for at least 20 years.

According to an estimate prepared for CAP by the University of Southern California’s Center for the Study of Immigrant Integration, there are more than 6.1 million U.S. citizens around the country who live in the same household as a DAPA-eligible family member. California leads the pack with an estimated 1.8 million individuals, but Texas comes in a close second at nearly 1.1 million. And in the 21 plaintiff states for which CAP has data, there are more than 2.6 million U.S. citizens living with a DAPA-eligible family member.

ShootingFoot-table2

Conclusion

Given the facts presented above, it is little wonder that the largest cities and counties in many of the plaintiff states filed an amicus brief with the Supreme Court arguing in support of DAPA and expanded DACA. If the Supreme Court overturns the lower court’s decision and permits these policies to take effect—as it should—not only will the nation as a whole benefit from the implementation of these sensible policies, but the plaintiff states will benefit as well.


Tom Jawetz is the Vice President of Immigration Policy at the Center for American Progress.

This material [the article above] was created by the Center for American Progress Action Fund. It was created for the Progress Report, the daily e-mail publication of the Center for American Progress Action Fund. Click here to subscribe. ‘Like’ CAP Action on Facebook and ‘follow’ us on Twitter

The Supreme Court Shamed The Most Anti-Abortion Court In The Country With Just 14 Words

— by Ian Millhiser

Credit: AP photo/Michael Dwyer

Friday afternoon, the Supreme Court handed down a very brief order allowing several Louisiana abortion clinics to reopen after a conservative federal appeals court forced them to shut down. Yet, while the Supreme Court’s order was very short — only slightly more than a paragraph long — it contained 14 more words than such an order normally would. And those 14 words appear to be a direct swipe at the appeals court that shut down Louisiana’s clinics in the first place.

To explain, the conservative United States Court of Appeals for the Fifth Circuit has handed down a series of decisions that appear calculated to dismantle nearly all of Roe v. Wade within the three states (Louisiana, Mississippi and Texas) overseen by that court. In 2015, for example, the Fifth Circuit’s decision in Whole Woman’s Health v. Cole gave states sweeping power to restrict abortion, so long as the restriction is dressed up as a health regulation. Among other things, this opinion blessed a provision of Texas law requiring abortion clinics to undergo expensive renovations in order to comply with regulations governing “ambulatory surgical centers,” even if the clinic does not actually perform any surgeries. Many Texas abortion clinics only offer medication abortions, which are induced by pills the woman takes orally.

An appeal of this Whole Woman’s Health decision is currently pending before the justices, and a majority of the Court appeared skeptical of the Fifth Circuit’s decision at oral arguments last Wednesday.

Just one week before the Supreme Court heard these arguments, however, the Fifth Circuit handed down another anti-abortion decision. In June Medical Services v. Gee, the Fifth Circuit granted an “emergency” motion reinstating a Louisiana law that was expected to shut down all but one of that state’s abortion clinics. The Louisiana law at issue in June Medical Services closely resembles a provision of the Texas law at issue in Whole Woman’s Health.

The Fifth Circuit’s order in June Medical Services was surprising, largely because the Supreme Court had already dropped some pretty big clues that a majority of the justices disapprove of the Fifth Circuit’s decisions forcing abortion clinics to close. Among other things, the justices stayed the Fifth Circuit’s Whole Woman’s Health decision pending the Supreme Court’s own resolution of the case — effectively enabling many Texas abortion clinics to remain open that would be closed if the Fifth Circuit’s order were still in effect.

Nevertheless, the Fifth Circuit decided not to take the hint that Texas-style attempts to shut down clinics should be placed on hold. Instead, the Fifth Circuit claimed in June Medical Services that it was free ignore this hint because, when the Supreme Court stayed Whole Woman’s Health, it did so in a brief order without explaining its reasoning. “No guidance can be gleaned from the Supreme Court’s vacating portions of the stay without explanation,” according to the lower court, “as we cannot discern the underlying reasoning from the one-paragraph order.”

Which brings us back to the 14 significant words in the Supreme Court’s most recent order. “Consistent with the Court’s action granting a stay in Whole Woman’s Health v. Cole,” that order begins, the Fifth Circuit’s order reinstating the Louisiana law is vacated.

These 14 words are a subtle spanking, but they are a spanking nonetheless. They directly contradict the Fifth Circuit’s claim that it can ignore the Supreme Court’s previous stay orders if the lower court “cannot discern the underlying reasoning” behind those orders. And they rebut the Fifth Circuit’s logic on its own terms. Why shouldn’t lower courts allow Texas-style abortion restrictions to go into effect in the future? Because halting these laws is “consistent with the Court’s action granting a stay in Whole Woman’s Health v. Cole.”

To be clear, it is normally a dangerous practice to read too much into a one-paragraph order like the one the Supreme Court handed down Friday. This order provides only a limited window into the Court’s thinking, and it deals only with a preliminary issue facing the Fifth Circuit in June Medical Services. The conservative appeals court will have another opportunity to hear this case, and that will give it another opportunity to make mischief for abortion providers.

But the Supreme Court is now signalling very loudly that a majority of the Court is not pleased with the Fifth Circuit’s efforts to pare Roe v. Wade down to near nothingness. If the lower court’s judges do decide to make more mischief, they will probably wind up on the receiving end of yet another judicial spanking.


This material [the article above] was created by the Center for American Progress Action Fund. It was created for the Progress Report, the daily e-mail publication of the Center for American Progress Action Fund. Click here to subscribe. ‘Like’ CAP Action on Facebook and ‘follow’ us on Twitter

What is the President Looking for in his SCOTUS Nominee?

A Responsibility I Take Seriously
— by President Barack Obama

SCOTUS-ScaliaThe Constitution vests in the President the power to appoint judges to the Supreme Court.  It’s a duty that I take seriously, and one that I will fulfill in the weeks ahead.

It’s also one of the most important decisions that a President will make.  Rulings handed down by the Supreme Court directly affect our economy, our security, our rights, and our daily lives.

Needless to say, this isn’t something I take lightly.  It’s a decision to which I devote considerable time, deep reflection, careful deliberation, and serious consultation with legal experts, members of both political parties, and people across the political spectrum.  And with thanks to SCOTUSblog for allowing me to guest post today, I thought I’d share some spoiler-free insights into what I think about before appointing the person who will be our next Supreme Court Justice.

First and foremost, the person I appoint will be eminently qualified.  He or she will have an independent mind, rigorous intellect, impeccable credentials, and a record of excellence and integrity.  I’m looking for a mastery of the law, with an ability to hone in on the key issues before the Court, and provide clear answers to complex legal questions.

Second, the person I appoint will be someone who recognizes the limits of the judiciary’s role; who understands that a judge’s job is to interpret the law, not make the law.  I seek judges who approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand.

But I’m also mindful that there will be cases that reach the Supreme Court in which the law is not clear.  There will be cases in which a judge’s analysis necessarily will be shaped by his or her own perspective, ethics, and judgment.  That’s why the third quality I seek in a judge is a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook.  It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times.  That, I believe, is an essential element for arriving at just decisions and fair outcomes.

A sterling record.  A deep respect for the judiciary’s role.  An understanding of the way the world really works.  That’s what I’m considering as I fulfill my constitutional duty to appoint a judge to our highest court.  And as Senators prepare to fulfill their constitutional responsibility to consider the person I appoint, I hope they’ll move quickly to debate and then confirm this nominee so that the Court can continue to serve the American people at full strength.

An Historic Attempt To Kill Roe v. Wade May Backfire Spectacularly On The Anti-Choice Right

CREDIT: DOUG MILLS/THE NEW YORK TIMES VIA AP, POOL

It was supposed to be an epic battle over the fate of Roe v. Wade.

Next week, the Supreme Court hears oral arguments in Whole Woman’s Health v. Hellerstedt, a challenge to Texas’s ambitious anti-abortion law HB2. If this law is upheld — a very real possibility in a conservative Supreme Court — Roe v. Wade would have most likely remained alive in name only. States would gain sweeping new power to shut down abortion clinics, so long as they dressed up the laws they enacted to end access to abortion as health regulations.

Except that opponents of abortion no longer have the fifth vote they need to gut Roe. Justice Antonin Scalia’s death means that Roe shall live at least another year. Whether it survives past next year, however, could very well be decided by whoever gets to fill Scalia’s seat.

The Masterminds

HB2 is the brainchild of the sophisticated anti-abortion group Americans United for Life (AUL). The law imposes expensive architectural and other requirements on abortion clinics, as well as often-difficult-to-obtain credentialing requirements on abortion providers. If the Supreme Court allows the law to take full effect, at least 32 of the 40 abortion clinics that existed in Texas before it was enacted are expected to shut down.

AUL, moreover, does not hide its goal in pushing such legislation — as ThinkProgress’ Erica Hellerstein reported, AUL functions as a “legislation mill” producing anti-abortion bills that can be copied and enacted in many states. The anti-abortion group brags on their website that they work “through the law and legislative process to one end: Achieving comprehensive legal protection for human life from conception to natural death.” Overruling Roe v. Wade, according to AUL, “can be accomplished through deliberate, legal strategies that accumulate victories, build momentum, and restore a culture of life.”

Just over one week ago, Whole Woman’s Health appeared poised to become AUL’s crowning achievement. Under the Supreme Court’s 1992 decision in Planned Parenthood v. Casey, states may not enact laws that place an “undue burden” a woman’s right to choose abortion — a vague standard that’s proved quite malleable in the hands of abortion opponents. At the same time, states may legitimately regulate all medical clinics, including those that provide abortions, to protect the health of individuals who seek treatment from those clinics. Whole Woman’s Health asks what happens when a state enacts abortion restrictions disguised as health regulations.

The clinic regulations and credentialing requirements at issue in this case will do little, if anything, to advance women’s health. But they make it a whole lot harder to obtain an abortion. Thus, a decision upholding HB2 could potentially return women to a world much like the one that existed prior to Roe. States may not actually be allowed to openly ban abortion after such a decision, but they’d have broad authority to restrict abortion just so long as they are clever enough to devise anti-abortion laws that look like health laws. And if state lawmakers proved inept at this task, groups like AUL would be more than happy to give them a hand.

Now, however, with Scalia’s seat vacant and the Court evenly divided between Democratic and Republican appointees, the likelihood HB2 will be upheld outright is vanishingly small.

No Longer The Man in the Middle

Before Scalia’s unexpected death, all eyes were on Justice Anthony Kennedy, the closest thing the Roberts Court has to a swing vote on abortion. As a general rule, if your plan of attack against an abortion restriction depends on winning Kennedy’s approval, you need a better plan. Prior to HB2, Justice Kennedy considered 21 abortion restrictions as a member of the Supreme Court andallowed 20 of them to take effect. In one case, Kennedy justified an abortion restriction in part because he thought that “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”

(It also seems unexceptionable to conclude that some people come to regret their choice to bring a dangerous firearm into their home, yet this insight has not animated Kennedy’s votes in Second Amendment cases.)

Yet, while Kennedy’s opinions reveal an almost visceral revulsion towards abortion, he’s also proved unwilling to overrule Roe outright. Kennedy co-authored the Casey opinion, which limited abortion rights, but which also purported to hold that “the essential holding of Roe v. Wade should be retained and once again reaffirmed.”

Thus, before conservatives lost their majority on the Supreme Court, the most important question in Whole Woman’s Health was likely to be which Justice Kennedy shows up to work next week — the one that consistently upholds abortion restrictions or the one that is unwilling to invalidate Roe in its entirety. Kennedy, moreover, gave hope to Team Choice when he cast the fifth vote to stay a lower court order upholding nearly all of HB2.

Uncertain Process

Now that the Court is evenly divided between liberals and conservatives, Kennedy no longer has the power to drive a nail in Roe‘s coffin, but he could still have the power to do considerable damage to the right to choose. The ordinary rule when the Court splits 4-4 is that the lower court’s decision is affirmed and the justices’ decision does not have any precedential value. Because the court of appeals largely upheld HB2, a 4-4 decision in Whole Woman’s Health would allow the Texas law to almost entirely remain in effect — at least until a fifth justice is confirmed to the Court and another abortion case reaches the justices.

Thus, as Cosmopolitan’s Jill Filipovic notes, Scalia’s death may actually make it more likely that Justice Kennedy votes to uphold HB2. “If Scalia were still alive, Kennedy might be choosing between overturning Roe and invalidating the Texas law,” Filipovic writes. Now, however, he doesn’t have to choose between two options that he’s likely to view as undesirable. Rather, if he sides with the conservatives he will leave lower court’s opinion in place without creating a precedent he may later come to regret. “For this particular justice, who seems to find abortion troubling but may not want to see it outlawed wholesale,” Filipovic notes, “that may be a desirable outcome.”

There is, however, some uncertainty about whether Kennedy will have this option. As SCOTUSBlog’s Tom Goldstein notes, the Court’s past practice when a vacancy opened in the middle of a term was to hold cases where the justices split over until the next term, when the open seat presumably would be filled. Given the extraordinary obstructionism Senate Majority Leader Mitch McConnell (R-KY) has already planned against anyone President Obama sends up to fill this seat, it remains to be seen whether the justices will decide to hold over split decisions until next term or simply affirm the case by an evenly divided vote and be done with it.

Which process they choose could matter a great deal in Whole Woman’s Health. Recall that Kennedy provided the fifth vote to stay the lower court’s decision upholding HB2. That order provides that the stay shall last until “the issuance of the judgment of this Court.” Thus, if the Court holds the case over for reargument next term, the stay remains in effect until the Court decides the case, and HB2 does not go into effect. If the Court affirms the lower court by an evenly divided vote, by contrast, that counts as a “judgment” of the Supreme Court, so the clinics most impacted by HB2 will close.

The choice whether to hold the case over could also matter for an entirely different reason. If President Obama (or a similarly minded president) manages to fill Justice Scalia’s seat, one of the first matters taken up by the Court’s new liberal majority would be a major abortion case. That would not only give them the opportunity to strike down HB2, it would also give them the chance to expand a right to choose that has been gradually chipped away after decades of conservative decisions. The vague “undue burden” standard that now controls abortion cases was pushed by abortion opponents including the Reagan Justice Department and AUL itself before it was ultimately adopted by the Supreme Court. A more liberal Court could scrap this standard altogether or, at the very least, clarify it in a way that does not permit anti-abortion judges to take advantage of its vagueness.

Rather than becoming AUL’s crowning achievement, in other words, Whole Woman’s Health could be their most demoralizing defeat.

Yet that outcome depends entirely on who gets to fill Justice Scalia’s seat. If the next justice is more like Scalia, Whole Woman’s Health could still become AUL’s greatest triumph.


This material [the article above] was created by the Center for American Progress Action Fund. It was created for the Progress Report, the daily e-mail publication of the Center for American Progress Action Fund. Click here to subscribe. ‘Like’ CAP Action on Facebook and ‘follow’ us on Twitter

Demanding Strict Constitutional Abidance Until It’s Inconvenient

Justice01Within minutes of the news breaking that Supreme Court Justice Antonin Scalia had died, Republicans said (more specifically Senate Majority Leader Mitch McConnell said) they would refuse to consider ANY Obama nominee to replace him, no matter what. Such a lengthy vacancy on the court would likely preserve the status quo in a number of high-profile cases this term, including those affecting the issues of affirmative action, immigration, abortion access and possibly even the president’s climate regulations. It would also leave in legal limbo countless other cases Scalia and his clerks have worked on this term.

Several critical cases are already pending before the Supreme Court, including:

  • The latest attack on abortion rights in Texas
  • President Obama’s Clean Power Plan to fight climate change
  • The president’s action to allow the “Dreamer” undocumented immigrants to stay in our country
  • The right-wing attack on the right of teachers and other workers to form strong unions
  • An extremist proposal to roll back voting rights by ending the “one person, one vote” rule
  • A Texas case that would limit affirmative action in higher education

It’s time to say resoundingly, “ENOUGH!” Republican obstruction has its limits. We, as Democrats, need to commit to doing everything it takes to retake the U.S. Senate this fall. If the Senate leaves town on recess (which they shouldn’t, the President should hold them in session), President Obama could make an appointment during that recess. And, if the GOP-controlled Senate does successfully manage to block all consideration of President Obama’s nominee, we need to make sure that we elect those who, once seated and sworn in the first week of January, will confirm President Obama’s nominee before our next President is inaugurated.

Along with other matters, such as overturning Citizens United, these cases remind us just how important it is that the next Supreme Court justice share America’s progressive values and rules the right way on these issues. We have an historic opportunity to have a progressive majority on the Supreme Court for the first time in more than 25 years.

Catherine Cortez Masto is running for the Senate seat being vacated by Senator Harry Reid. To assure that our concerns and issues are effectively considered and dealt with by the U.S. Senate, you need to make sure you get out this fall, either during early voting, or on election day, and cast your vote for Catherine. The last person we need claiming to represent Nevada’s interests is a Senator Joe Heck. It’s time to send him packing. We’ve seen what he did in the House and we don’t need even more of that in the Senate.

‘Great Day for Clean Energy’ as Supreme Court Gives Renewables a Boost

SCOTUS upholds rule meant to incentivize electricity conservation and idle dirty fossil fuel power plants normally used during periods of high demand

— by Deirdre Fulton, staff writer

“Demand response provides tremendous benefits to our environment, helps consumers save money and makes our electricity grid more reliable,” says Earthjustice. (Photo: Image Catalog/flickr/cc)

In a decision heralded as “great news for consumers and the environment,” the U.S. Supreme Court on Monday upheld a rule meant to incentivize electricity conservation and idle dirty fossil fuel power plants normally used during periods of high demand.

As Timothy Cama explains for The Hill, the court ruled (pdf) that the Federal Energy Regulatory Commission (FERC) “did not exceed the authority Congress gave it when it wrote its ‘demand response’ rule, mandating that electric utilities pay customers to reduce use during peak demand periods.”

At the Natural Resources Defense Council blog, senior attorney Allison Clements offered further background:

In 2011, FERC (the agency that regulates our country’s high voltage electric transmission grid) issued a landmark rule called Order 745, which set compensation for demand response in wholesale energy markets. Under the rule, grid operators are required to pay demand response participants the same rates for reducing energy use as those paid to power suppliers for producing energy from resources like coal, natural gas, and wind and solar power. FERC said the rule reflected the common sense view that “markets function most effectively when both supply and demand resources have appropriate opportunities to participate.”

With its ruling on Monday, the Supreme Court essentially affirmed FERC’s position—and in turn, gave clean energy “a huge boost,” Clements said in a press statement. That’s because, she explained, “[i]f grid operators can count on fast-acting customer responses rather than plants that need more advanced notice to come online, they will have greater flexibility to meet electricity demand in situations when the sun isn’t shining or the wind isn’t blowing.”

What’s more, said Sierra Club staff attorney Casey Roberts, “demand response programs make energy cheaper, ensure the reliability of the grid, and protect our air and water from fossil fuel pollution.”

As Politico points out:

The agency’s win is seen as a big loss for large “baseload” power sources like coal, natural gas and nuclear in the Northeast and parts of the Midwest, which have seen their profits decline over the last several years as electricity consumption has eased and renewables grew. Now they have to compete with industrial customers and others who will at times be paid at market rates to reduce their electricity use without having the costs of operating and maintaining a power plant themselves.

“This is a great day for clean energy and the health of a more affordable, stronger power grid,” added Earthjustice managing attorney of clean energy Jill Tauber on Monday. “Demand response provides tremendous benefits to our environment, helps consumers save money and makes our electricity grid more reliable.”


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