Dem
53
Ties
1
GOP
46
This is another item that should have run Friday, and so has been tinkered with and updated several times, over the course of several days.
Shadow Government: In a 5-4 ruling, the Supreme Court is allowing construction to proceed on Donald Trump's vanity project, the ballroom, on the location where the East Wing once stood before he unceremoniously, and without authorization, bulldozed it.
Once again, Trump has won on purely procedural grounds, with the Court majority holding that the historic preservation group that sued to stop the project lacked standing, or sufficient injury, to bring the case. Trump lost in the lower court and the Court of Appeal but finds relief on the shadow docket in an "emergency" appeal to the Supreme Court. Chief Justice John Roberts dissented along with Associate Justices Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor. Even though he had granted an administrative stay of the lower court's injunction earlier in August, Roberts wrote, "The White House is not just any building. In failing to appreciate as much, the court misconceives the plaintiff's injury, allowing the executive's likely infringement of the legislature's power of the purse and authority to regulate federal property in the District of Columbia to continue." The majority noted that it was not deciding on the legality of the project, though this ruling effectively greenlights its completion.
Our Take: If it's the People's House, but groups who are charged with preserving and protecting it can't sue, it's unclear that any person or any organization has the legal ability to stop the project. This will only embolden Trump to demolish other monuments and build more shrines to himself in the nation's capital. There was also no reason to address this on the shadow docket—Trump can point to no urgency that justifies the Court's involvement at this stage (the supposed national security issue involves below-ground construction which was not enjoined). The Court majority is once again abusing this process by allowing Trump, and only Trump, to jump the line and shortcut the normal adjudicative process to give him the result he wants without having to fully explain themselves. Add another rock to the pile of their diminishing credibility.
Final Rule... Not So Final: As expected, the plaintiffs (23 states and the League of Women Voters) contesting the USPS rule restricting mail-in voting amended their claims and asked the district court to block the implementation of the postal service's Final Rule. Late last Thursday, U.S. District Judge Indira Talwani granted the request and issued a 14-day temporary restraining order (TRO) blocking the implementation of the rule while she considers their motion for a preliminary injunction. The hearing on that motion is September 3.
Our Take: The judge's ruling notes the various hurdles states have to navigate under this rule, including designing a ballot envelope that meets with USPS approval. The rule does not give any kind of timeline by which the postal service must render a decision on a state's ballot envelope design. Nevertheless, under the rule, no ballots will be mailed to voters or returned to clerks' offices unless the envelope meets as-yet undefined standards and states have uploaded lists of voters to a USPS portal that has yet to be created. The administration has appealed the TRO but action on that is unlikely before Talwani rules on the preliminary injunction. That will take us into mid-September and, as we have noted, North Carolina starts mailing ballots on Friday. Since Republican strategists are now saying that this rule may hurt Republicans more than Democrats, Trump's appetite for ramming this through before the midterms could be waning. And SCOTUS could bail him out by putting it on hold at least through November. It's still possible the right-wing Court majority could let it be implemented for 2028, however.
Once Convicted, Twice Shy: Trump has been challenging his felony convictions for falsifying business records about hush payments to Stormy Daniels in both state and federal court. In federal court, a district judge once again shot down his effort to have his case moved to federal court. For the third time, the judge slammed Trump's argument that everything he did was protected by presidential immunity. Last year the Second Circuit Court of Appeals sent the case back to the judge to reconsider his ruling in light of the "important issues relevant" to the president's request, such as whether any of the evidence could be considered "official acts." Judge Alvin K. Hellerstein concluded, "There is no way that discussions regarding hush money payments to cover up the President's relations with Stormy Daniels could be an official act. An affair, or a cover-up of an affair, is not within the 'outer perimeter' of the President's official responsibilities."
Our Take: It's possible that the Second Circuit sent this back for reconsideration in anticipation of SCOTUS getting involved and to make sure the judge covered all his bases with respect to any claim of immunity. And the fact that Trump waited for two months after the immunity decision to seek to move the case to federal court is also a strike against him. We're a long way from done with this particular saga, but this is yet another setback for Trump and he remains a convicted felon.
Age Is Just a Number... Or It Isn't: The U.S. Court of Appeals for the Fourth Circuit unanimously struck down a South Carolina law that restricted absentee voting by age. Under the law, those over 65 could vote absentee for any reason, while anyone under 65 had to provide a valid excuse. The Court held that the restrictions discriminated on the basis of age in violation of the Twenty-Sixth Amendment and other voting rights amendments. The Court said that South Carolina could either extend no-excuse absentee voting to everyone or remove the benefit for those 65 and over.
Our Take: The 3-judge panel was composed of an Obama appointee, a Trump appointee and a George W. Bush appointee, but they split from decisions in the Fifth and Seventh Circuits, who upheld similar laws in Texas and Indiana. The Fourth Circuit looked at the law as an age-based restriction generally and not just a limit on absentee voting, as the other circuits did. We believe the Fourth Circuit has the right of it, because the Twenty-Sixth Amendment is pretty clear: The right of U.S. citizens to vote "shall not be denied or abridged by the United States or any State on account of age." Because of the split, the Supreme Court will likely weigh in at some point and, no doubt, find some novel interpretation of the word "be" from a long-lost 18th-century parchment.
Drag City: In September 2023, Texas enacted a law, SB 12, to prohibit and criminalize "sexually oriented performances" in any commercial establishment where someone under 18 may be present. They defined "sexually oriented performance" to include a "visual performance" that "appeals to the prurient interest in sex." What "appeals to the prurient interest in sex" means is left undefined and is, apparently, whatever a law enforcement official decides it is. For the second time, U.S. District Judge David Hittner struck down the law as a violation of the First Amendment right to free speech. He originally struck it down in 2023, but was reversed by the Fifth Circuit with instructions on how to reassess it. Hittner did so and came to the same conclusion. He held that the law was so overly broad and vague that activities like "cheerleading, dancing, live theater, and other common public occurrences" could be treated as criminal violations.
Our Take: While this law doesn't explicitly mention drag shows, it was clearly designed as a drag show ban and touted as such by Texas officials, including Texas AG Ken Paxton (who knows a few things about the prurient interest—wasn't he overseas with his mistress when this passed?). The plaintiffs included a drag queen who performs as Brigitte Bandit. Hittner is a Reagan appointee and has been on the bench since 1986. He's seen this pearl-clutching a few times before and had some pointed words for those who find such activities offensive: "The solution is relatively simple... just don't go." He also astutely and reverently invoked Dolly Parton, a well-known supporter of drag shows, and pointed out that her look has been criticized as overtly sexual and offensive and arguably could run afoul of the law. Bandit, who often impersonates Parton in her show, said she would perform as the country music star on Saturday in her honor, and presumably did so. Parton had given Bandit a rhinestone guitar as a gift in 2023, the same year the ban was passed. We think Parton would be honored to be associated with a decision that upholds free speech and civil rights and, more importantly, strikes a blow to cruelty and pettiness.
There's a Killer on the Road: Gov. Greg Abbott (R-TX) has refused to act on an extradition request from Gov. Tim Walz (DFL-MN) to turn over a federal immigration agent who faces assault charges for shooting a Minnesota resident in his front yard and then lying about it to authorities. Christian Castro had been in a Texas jail and the governor had 90 days (until Thursday, August 27) to act on the request or else Castro would have to be released. Abbott did nothing and Castro was released late Thursday. Minnesota sued in federal court, but the judge denied the request to compel Abbott to act on the extradition request. The Court found that the law does not require the governor to act within those 90 days and there was no evidence that his inaction was in bad faith. As a result, Castro is now at large and may not face charges in Minnesota.
Our Take: Abbott needs to learn to pick his battles, especially during election season. Playing politics with routine extradition requests from other states of criminal defendants could cause some serious problems for him. Governors rely on cooperation between states for all myriad of things. If Abbott is declaring war on states with Democratic governors, that could open up many cans of worms. The judge in this case is a Trump appointee, but he is likely correct that the law does not anticipate this kind of deliberate recalcitrance by the governor, so his hands were tied. Castro is a federal agent and there is some question whether he can face state criminal charges, but that is for the federal government, not Abbott, to challenge. His gubernatorial opponent, Gina Hinojosa, just might create an ad on the subject: "Abbott claims he's for law and order, but he releases armed and dangerous criminals onto our streets to terrorize our communities."
What'd I Ever Do to Deserve Such Treatment?: Immigration agents took the father of a sailor aboard the USS Lincoln into custody on Saturday, shortly after the sailor posted on Facebook about the dangerous and inhumane conditions on board. Joshua Aviles posted that he has been working nonstop 12-hour days since they left port in San Diego. The ship had not had a single day in port for over 9 months and the supply shortages of basic necessities like food and clean water are well-documented. On the day he posted on Facebook, ICE agents arrested his father, Luis Manuel Aviles, a 19-year legal resident with a valid work permit. An immigration judge dismissed the case on Monday and Aviles was released shortly after.
Our Take: The fact that the elder Aviles was taken into custody the same day his son blew the whistle on some horrific conditions on board the ship, and then his case was immediately dismissed, sure smacks of retaliation and intimidation to us. So much for supporting our troops. As we note above, this administration just seems to be openly operating like the mob now. "Nice family. A man should take care, see that nothing happens to 'em."
More soon. There's always more. (L)