Jun.26

electoral-vote.com

Dem 47

   

GOP 53

6-3

That might be the shortest headline we've ever written. And yet, it is very much on the mark. Although Chief Justice John Roberts insists that his Court is not partisan, and that it's just calling balls and strikes, one cannot take that seriously anymore (if one could EVER take it seriously). Yesterday, SCOTUS handed down four major decisions. Three were decided 6-3, with the vote breaking down along ideological lines. And, in each 6-3 case, the majority opinion was written by Associate Justice Samuel Alito.

The most... explosive decision is the one in Mullin v. Doe, which involves a decision by Stephen Miller the Trump administration to rescind Temporary Protective Status (TPS) for individuals from Haiti and Syria. TPS was created in the 1990s to allow people from dangerous and violent countries to remain in the U.S., rather than face the perils they may encounter on returning home. There are currently 17 countries on the list, and while it was people from Haiti and Syria who brought Mullin v. Doe, the administration has also announced the revocation of TPS for people from Afghanistan, Cameroon, Ethiopia, Honduras, Myanmar, Nepal, Nicaragua, Somalia, South Sudan, Venezuela and Yemen. So, folks from those countries will be affected by the decision as well.

There were three potential bases for ruling against Miller the administration on this one. They are:

1. The law creating TPS—which was passed by Congress, mind you—sets out a procedure that must be followed before TPS can be rescinded. If that procedure is not followed—and it wasn't here—then a petitioner can go to court and get the decision reversed. This is the basis on which Mullin v. Doe was decided at the lower levels of the court system; each of those decisions blocked the White House's efforts to kill TPS.
   
   
2. Decisions on TPS cannot be based, even in part, on race. Given that Donald Trump has regularly used racist language to refer to black refugees in general, and Haitian refugees in particular ("They're eating dogs and cats"), there is abundant reason to believe that race played a factor in the administration's TPS decisions (and in case you are wondering, the four countries that are still on the TPS list are El Salvador, Lebanon, Sudan, and Ukraine).
   
   
3. Revoking TPS for these folks, particularly the Haitians, will uproot a couple million people, many of whom have lived in the United States for decades, while serving no useful policy purpose. We don't want to suggest this came up in Court, because it didn't, but it is instructive that Mike DeWine, the Republican governor of Ohio, a state that is home to many Haitian refugees, said: "I've stated many times, the policy to kick all these people who are working out of Springfield, out of Ohio, out of our country, I think is a mistake... The situation in Haiti is today worse than it's ever been, so it did not get better. No one who knows anything about Haiti can dispute those facts."

Alito's opinion addressed all three of these. To wit:

1. Courts have no role in overseeing TPS decisions (so much for Congress' power to, you know, pass laws).
   
   
2. There was no race or racism involved in the administration's decisions. Or, at least, it cannot be proven that race or racism was involved. There could have been other reasons.
   
   
3. The Court cannot concern itself with the impact of its decisions, and will rule based solely on the letter of the law.

And there you have it. Reports are that the administration plans to begin deportations as early as next week. If they follow through (and if the plaintiffs do not have a new cause of action up their sleeves, which they might), then we shall see how well it plays with the voting public to see people torn away from their families and their communities to be sent to a dangerous place they barely know. As a reminder, Ohio has a key U.S. Senate race this year, which affords voters an excellent opportunity to register their feelings.

The second big decision, meanwhile, was in Mullin v. Al Otro Lado. As this is also an immigration case, current DHS Secretary Markwayne Mullin is once again the petitioner. At issue here is whether a person has to be physically present in the United States before they can formally request asylum, and thus be extended the legal rights that entails.

The argument here is a little simpler than in the first case. Presidents of both parties have used the excuse "you never actually entered the United States" to keep the number of asylum-seekers manageable (and politically palatable). Republican presidents have generally used that excuse more liberally (no pun intended), but Barack Obama used it, too (though not Joe Biden, in case you are wondering)

The counter-arguments are that: (1) that technicality will encourage more people to break the law and sneak in illegally (which is dangerous for all involved), and (2) that way of looking at things has historically kept some obviously worthy asylum-seekers from entering the country (perhaps most famously the Jewish refugees on the MS St. Louis, who were forced to return to Europe, and many of whom became victims of the Holocaust.

Actually, there's another argument against the White House's position, though it's a little weedy. The law governing asylum-seekers specifies that it applies to anyone who "arrives in the United States." However, a different subsection addresses people who are "physically present in the United States." This implies that "arrives in the United States" and "physically present in the United States" are not the exact same thing, which in turn implies that entering American waters, or arriving at an American border checkpoint, are enough to qualify for asylum, even if a person has not set foot on U.S. soil.

Alito's majority ruling waves all of this away, and finds that if you are not on U.S. soil, you are not "in" the United States, and so the law does not apply to you. When Associate Justice Sonia Sotomayor read her dissent, she did not hold back in sharing her view that the majority ruling is morally and legally bankrupt. Cameras are not allowed in the Supreme Court, but witnesses said that Alito was absoutely livid while Sotomayor was speaking.

In contrast to Mullin v. Doe, it's hard to see how this decision could backfire on the White House. Asylum-seekers, unless they happen to have relatives in the United States, do not have the attention or sympathy of American voters the way that people who are already in the country, and already functioning as productive members of their communities, do. So, expect the White House to go all-in on keeping asylum-seekers from setting foot in the U.S. (the technical term for this policy is "metering"), unless those asylum-seekers happen to be white South Africans.

The third 6-3 decision did not involve Mullin, because it's not an immigration case, it's a gun case. Specifically, Wolford v. Lopez, which was triggered (pun intended this time) by a Hawaii law that prohibited people from carrying guns, without explicit consent, onto private property that is open to the general public (e.g., restaurants, banks, grocery stores). The three liberals, who must be used to losing by now, argued that the right to carry guns does not mean the right to carry guns anywhere you want, anytime you want, for any reason you want. By contrast, Alito's opinion found that the Hawaii law interferes with "the right of Americans to carry arms for self-defense as they go about their daily lives," and so is a violation of the Second Amendment.

There fourth big decision yesterday broke the pattern because it was 7-2 and the majority opinion was written by Associate Justice Brett Kavanaugh. This is Monsanto v. Durnell, and it was being watched closely by the MAHA types. It is also really, really weedy, but we'll try our best.

The cause of action, in this particular suit, was a claim filed by Missourian John Durnell, who said he developed non-Hodgkin lymphoma due to the glyphosate in the weed killer Roundup, to which he was regularly exposed for 20 years. Durnell argued that the evidence that glyphosate is carcinogenic is strong enough that there should have been a warning label on Roundup packaging, and the absence of such a warning was a violation of Missouri state law. His lawyers put up a strong enough case that Durnell was awarded $1.25 million by a jury, while a different group of (class-action) lawyers were able to get Monsanto to agree to a $7.25 billion settlement for other Missourians who say they were harmed by Roundup.

Monsanto, which is now owned by Bayer, based its argument before the Supremes on the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which was first adopted in 1947, and has been updated several times since. The corporation said that FIFRA (since its 1972 update) gives the EPA sole authority to make rules for pesticide labeling, and that any state laws to the contrary are not valid. And since the EPA has never ordered Roundup (or any other pesticide) to be labeled as carcinogenic, then Monsanto/Bayer are in the clear. Seven justices accepted this argument, and so set aside the $1.25 million verdict and the Missouri decision. This will likely kill most or all of the pending lawsuits based on glyphosate exposure, which is why MAHA is furious. Oh, and in case you are wondering, the two justices in the minority this time were Associate Justices Neil Gorsuch and Ketanji Brown Jackson.

The Monsanto decision notwithstanding, 6-3 remains the dominant theme of this term of the Supreme Court. In addition to the three 6-3 rulings yesterday, there were four 6-3 rulings released on Tuesday. The decision gutting the Voting Rights Act was also 6-3. In fact, this term has already featured more 6-3 decisions than the entire last term, and we still have some very big decisions left on deck. Heaven help us if the birthright citizenship case is decided 6-3; there could be riots in the streets. (Z)