Tuesday, March 31, 2020

Texas Federal Court Blocks Restrictions on “Non-Essential” Abortion Procedures, Texas Asks Fifth Circuit to Reverse – Reason.com

Texas has asked the United States Court of Appeals for the Fifth Circuit to stay the order.
I don't know the makeup of the Fifth Circuit.  But the prospects at the Supreme Court would appear to be grim. - gwc
Texas Federal Court Blocks Restrictions on “Non-Essential” Abortion Procedures, Texas Asks Fifth Circuit to Reverse – Reason.com
post by Eugene Volokh
Josh Blackman links to the briefs; here is the heart of Judge Lee Yeakel's decision blocking the restrictions:
[T]he court finds that Plaintiffs have established a substantial likelihood of success on the merits of their claim that the Executive Order, as interpreted by the attorney general, violates Plaintiffs' patients' Fourteenth Amendment rights, which derive from the Bill of Rights, by effectively banning all abortions before viability. See Planned Parenthood v. Casey505 U.S. 833, 848-49 (1992). The Due Process Clause of the Fourteenth Amendment to the United States Constitution protects a woman's right to choose abortion, Roe vWade, 410 U.S. 113, 153-54 (1973), and before fetal viability outside the womb, a state has no interest sufficient to justify an outright ban on abortions. Roe, 410 U.S. at 163-65; see also Casey, 505 U.S. at 846, 871 (1992) (reaffirming Roe's "central principle" that "[b]efore viability, the State's interests are not strong enough to support a prohibition of abortion").
Under the attorney general's interpretation, the Executive Order either bans all non­-emergency abortions in Texas or bans all non-emergency abortions in Texas starting at 10 weeks of pregnancy, and even earlier among patients for whom medication abortion is not appropriate. Either interpretation amounts to a previability ban which contravenes Supreme Court precedent, including RoePreviability abortion bans are "unconstitutional under Supreme Court precedent without resort to the undue burden balancing test." States "may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman's right, but they may not ban abortions."
The State Defendants well describe the emergency facing this country at the present time. They do not overstate when they say, "Texas faces it worst public health emergency in over a century." The Executive Order, as written, does not exceed the governor's power to deal with the emergency. But the attorney general's interpretation of that order constitutes the threat of criminal penalties against those whose interpretation differs. Yes, the attorney general is not the enforcer of those penalties, but many of those who are charged with enforcement are named as defendants in this action. The court takes notice that the opinion or notion of the attorney general as to the breadth of a law, even if expressed informally, carries great weight with those who must enforce it.
Regarding a woman's right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly. There can be no outright ban on such a procedure. This court will not speculate on whether the Supreme Court included a silent "except-in-a-national-emergency clause" in its previous writings on the issue. Only the Supreme Court may restrict the breadth of its rulings. The court will not predict what the Supreme Court will do if this case reaches that Court. For now, the State Defendants, and perhaps the others, agree that the Executive Order bans all pre-fetal-viability abortions. This is inconsistent with Supreme Court precedent. Plaintiffs have demonstrated a strong likelihood of success on the merits of their action.
For my post from Wednesday (feels like months ago) on this subject, see here.

The Coronavirus Is the Worst Intelligence Failure in U.S. History, and It's All Trump's Fault

The Coronavirus Is the Worst Intelligence Failure in U.S. History, and It's All Trump's Fault
by Micah Zenko [Chatham House - The Royal Institute of International Affaris]
Last September, I met the vice president for risk for a Fortune 100 company in Washington, D.C. I asked the executive—who previously had a long career as an intelligence analyst—the question you would ask any risk officer: “What are you most worried about?” Without pausing, this person replied, “A highly contagious virus that begins somewhere in China and spreads rapidly.” This vice president, whose company has offices throughout East Asia, explained the preventative mitigating steps the company had subsequently adopted to counter this potential threat.
Since the novel coronavirus has swept the world, I have often thought about this person’s prescient risk calculus. Most leaders lack the discipline to do routine risk-based horizon scanning, and fewer still develop the requisite contingency plans. Even rarer is the leader who has the foresight to correctly identify the top threat far enough in advance to develop and implement those plans.
Suffice it to say, the Trump administration has cumulatively failed, both in taking seriously the specific, repeated intelligence community warnings about a coronavirus outbreak and in vigorously pursuing the nationwide response initiatives commensurate with the predicted threat. The federal government alone has the resources and authorities to lead the relevant public and private stakeholders to confront the foreseeable harms posed by the virus. Unfortunately, Trump officials made a series of judgments (minimizing the hazards of COVID-19) and decisions (refusing to act with the urgency required) that have needlessly made Americans far less safe.

In short, the Trump administration forced a catastrophic strategic surprise onto the American people. But unlike past strategic surprises—Pearl Harbor, the Iranian revolution of 1979, or especially 9/11—the current one was brought about by unprecedented indifference, even willful negligence. 

Whereas, for example, the 9/11 Commission Report assigned blame for the al Qaeda attacks on the administrations of presidents Ronald Reagan through George W. Bush, the unfolding coronavirus crisis is overwhelmingly the sole responsibility of the current White House.

Sunday, March 29, 2020

Rev. Joseph Lowery, MLK aide, at 98 - The Boston Globe

We have lost another of the great leaders of the Southern Christian Leadership Conference - the soul and brain trust of the civil rights movement of the '50s and '60s.  Rev. Joseph K. Lowery, pictured here with Rev. Ralph Abernathy, and Rev. Andrew Young died at his home in Atlanta.  Writing in the Washington Post Krissa Thompson observes
‘They have made Martin a glorified social worker, and they have almost made our young folks believe that all Martin did was go around dreaming,’’ Rev. Lowery told members of an Atlanta church before a King holiday celebration in 2008. ‘‘He was a nonviolent militant. He was a Christian radical.’’
Late in his life, Rev. Lowery returned to the news pages when he became a vigorous supporter of Barack Obama, who chose Rev. Lowery to deliver the benediction at his presidential inauguration. Rev. Lowery said he saw in Obama a young man whose words tapped into the heartbeat of the people — just like the well-known speeches of the civil rights movement. Obama presented Rev. Lowery with the Presidential Medal of Freedom in 2009."

Rev. Joseph Lowery, MLK aide, at 98 - The Boston Globe
by Krissa Thompson // WaPo
Rev. Lowery’s civil rights work began in the late 1950s when he helped start the SCLC, a nonviolent, civil disobedience organization. He was a member of the SCLC board and traveled often to meet with King and other leaders to help steer the organization, providing advice and participating in protests at the height of racial unrest in the South.
One night in 1963, a last-minute decision to take a late-night train home to Nashville to see his wife saved Rev. Lowery’s life. The Birmingham, Ala., hotel room that King had offered him that night was bombed. No one was killed but Rev. Lowery often recalled how close he came to death. He later used that and other near-death experiences to describe himself and other participants in the civil rghts movement as ‘‘a little crazy, good crazy,’’ willing to risk their lives to shake up the segregated South and usher in equal rights for Blacks.
Rev. Lowery often worked in the background, behind King. In March 1965, he came to the fore as chairman of the committee appointed to take protesters’ demands to segregationist Governor George Wallace of Alabama at the end of the five-day, 54-mile ‘‘Bloody Sunday’’ march for voting rights from Selma to Montgomery.
Rev. Lowery described walking to the State Capitol steps and seeing a sea of blue-uniformed state troopers standing in front of the governor’s office. The National Guard was there too, authorized to protect Rev. Lowery. The guardsmen tramped in front of the state troopers and Rev. Lowery passed through.
‘‘Moses had the Red Sea, I had the blue sea,’’ he said in a 2008 interview with The Washington Post.
Rev. Lowery was also one of the four Black ministers sued in the seminal case of New York Times Co. v. Sullivan (1964) , in which an Alabama official accused the newspaper and the civil rights leaders of libeling him in an advertisement. The ad was intended to raise funds for King’s defense against felony charges related to his 1956 and 1958 Alabama tax returns, but the lawsuit caught Rev. Lowery by surprise. He and the other defendants had not been informed that their names would be used in the ad.
An all-white jury initially ordered the ministers to pay $500,000 each. Rev. Lowery’s 1958 Chrysler Imperial sedan and other property were seized in Mobile, Ala., and sold at a state-ordered auction. The US Supreme Court eventually vindicated the ministers in a landmark ruling and set a higher standard in defamation lawsuits by establishing the precedent that public officials must prove that a defendant knowingly and maliciously made false statements about them.
Rev. Lowery’s stature and reputation grew as he outlived many other civil rights leaders. Following King’s assassination in 1968, the SCLC became rudderless and beset with infighting. By the time Rev. Lowery was elected SCLC president in 1977, the organization was $10,000 in debt and membership had fallen drastically.
Rev. Lowery raised money and returned the organization to solvency, while focusing it on a new set of civil rights issues.
He described his busy years at the helm of SCLC to Ebony magazine: ‘‘First we went to Mississippi and jumped on the Southern Company for buying coal from South Africa. Then we went to North Carolina and marched for Ben Chavis. Next we went to Decatur, Ala., for Tommie Lee Hines.’’

Chavis was part of the so-called Wilmington Ten, whose members were arrested in 1972 in North Carolina and convicted of conspiracy to murder charges. He and the others spent nearly a decade in jail.

Saturday, March 28, 2020

Essential Services: Public Defenders fight for public health

New Jersey Office of the Public Defender, Warren County regional ...Housing Ambassadors
Public Defenders are playing an important role in the Corona virus crisis.  
In New York Brooklyn Defender Services is pressing hard to reduce the population of the City's notorious Rikers Island jail.  They are also fighting on behalf of detained immigrant clients.  BDS has announced that federal judge Analisa Torres (SDNY)  has found that ICE is holding immigrant detainees in unsafe conditions in New Jersey and has ordered the immediate release of ten inmates.

In response to an emergency petition New Jersey Public Defender Joseph Krakora the state's Supreme Court has announced its issuance of a consent order late Sunday night that will suspend or commute county jail sentences for at least 700 low-risk inmates in light of the public health emergency caused by coronavirus COVID-19. 
The order commutes or suspends county jail sentences currently being served by county jail inmates either as a condition of probation for an indictable offense or because of a municipal court conviction. It directs their release no later than 6 a.m. Tuesday. 
The state's Supreme Court on Friday relaxed the rules of the court to accept a petition from the Office of the Public Defender in response to concerns about the spread of COVID-19 in county jails. The court then ordered mediation, overseen by retired Presiding Appellate Judge Philip S. Carchman, between the Office of the Attorney General, the Office of the Public Defender, the County Prosecutors Association of New Jersey and the ACLU-NJ. 

Under the order, other inmates serving a county jail sentence will be released by no later than noon Thursday, March 26. The Attorney General and county prosecutors may file an objection to any release they deem inappropriate. In those cases, judges or special masters will hold a hearing to determine if the release would pose a significant risk to the safety of the inmate or the public. The order would impact only those in jail for third- or fourth-degree crimes or disorderly persons offenses. It does not affect state prison sentences. At the conclusion of the public health emergency, those released from jail will appear before the court to determine whether their custodial sentences should be reinstated or commuted. 
No contact orders, drivers’ license suspensions and other conditions will remain in force.

Contagion and the Right to TravelHarvard Law Review |

Contagion and the Right to Travel //Harvard Law Review  Blog|  
by Anthony Michael Kreis

Not since 1918 has the United States faced the kind of wide-scale public health crisis that Americans face today. The novel coronavirus pandemic of 2020 jeopardizes multiple millions of Americans’ lives, especially the elderly and immunocompromised. It also stands to cripple the American economy with the real prospect of the nation plunging into a depression. The virus itself is more easily transmitted than other seasonal diseases like the flu. Each non-isolated case of novel coronavirus will infect 2 to 2.5 additional people compared to the flu, where each additional case will infect 1.3 other people on average. Moreover, it is more deadly than the flu. As I write, nearly 85,000 Americans have been infected, and over 1,000 lives have been lost to the pandemic. These numbers will surely grow as the challenges to respond to the crisis mounts. Public health resources are strained, and the testing capacity of the United States lags behind other nations.

Public health experts and government officials face a stark choice: swift crackdowns on private movement or the possibility of mass mortality. To “flatten the curve,” i.e., slow the exponential growth of new infections and avoid overwhelming the healthcare system, governors and mayors have mandated social distancing and instituted stay-at-home orders. And while the pandemic has touched every state in the nation, certain states like New York, New Jersey, and Washington have acute outbreaks. In response, some governors have instituted de facto travel bans for short-term visitors. The governors in Alaska and Hawaii issued mandatory self-quarantine periods for all persons entering either state for 14 days. Travelers whose final destinations are Florida or Texas coming from New York, New Jersey, and Connecticut must quarantine for 14 days, as must persons traveling from New Orleans to Texas. Rhode Island has instituted a similar policy directed at New Yorkers, including police stops of non-commercial vehicles entering the state with New York license plates, that has come under fire from the state American Civil Liberties Union chapter.

These gubernatorial actions raise essential questions about states’ power to restrict the constitutional right to interstate travel that is grounded in dormant commerce clause doctrine.

Was Dorothy Day a Saint or a Subversive? - The New York Times

For John Loughery and Blythe Randolph, Dorothy Day’s wholehearted approach to life explains her religious conservatism — her desire to experience the entire Catholic package, warts and all.
I remember Tom Cornell standing at a table with leaflets by the Catholic Peace Fellowship - a desk he shared with Jim Forrest in the office of the War Resisters League on Lafayette Street near what is now the Public Theater.
Cornell was preaching pacifism to us in the mail room - a gathering place in those days before Area Codes and cell phones - at Holy Cross College.  On the table was a stack of newspapers - The Catholic Worker - price 1 Cent.  On the left side was a column titled On Pilgrimage by Dorothy Day.  She was the godmother of what we came to call the Catholic Left.  She is on her way, I hope to canonization.  A far better candidate than some recent pontifical figures who I won't name out of charity.
Karen Armstrong reviews John Loughery and Blythe Randolph's new biography:
Dorothy Day
Dissenting Voice of the American Century
Was Dorothy Day a Saint or a Subversive? - The New York Times
In March 2000, 20 years after her death, the Vatican began a stringent examination of Dorothy Day’s life to prove that she had demonstrated the “heroic virtue” that qualifies a Catholic for sainthood; this process is ongoing. More recently, in September 2015, Pope Francis cited Day — alongside Abraham Lincoln, Martin Luther King Jr. and Thomas Merton — as an American who exemplified principles that were desperately needed in our inequitable world. Day was a tireless advocate for the poor and homeless, but what exactly is a saint and was she one?

Friday, March 27, 2020

Internal Emails Show How Chaos at the CDC Slowed the Early Response to Coronavirus — ProPublica

Internal Emails Show How Chaos at the CDC Slowed the Early Response to Coronavirus — ProPublica

On Feb. 13, the U.S. Centers for Disease Control and Prevention sent out an email with what the author described as an “URGENT” call for help.
The agency was struggling with one of its most important duties: keeping track of Americans suspected of having the novel coronavirus. It had “an ongoing issue” with organizing — and sometimes flat-out losing — forms sent by local agencies about people thought to be infected. The email listed job postings for people who could track or retrieve this paperwork.
“Help needed urgently,” the CDC wrote.
Obtained by ProPublica, highlighting added.
This email is among hundreds of pages of correspondence between federal and state public health officials obtained by ProPublica through a records request in Nevada.
During the period in which the correspondence was written, from January to early March, health officials were trying to stay ahead of the coronavirus outbreak underway in China. By mid-February, when the CDC job postings email went out, the virus had a toehold in the United States, where there were already 15 confirmed cases. In another two weeks, the first case of community transmission would be reported in California, followed shortly by cases in Washington.
The documents — mostly emails — provide a behind-the-scenes peek into the messy early stages of the U.S. response to the coronavirus, revealing an antiquated public health system trying to adapt on the fly. What comes through clearly is confusion, as the CDC underestimated the threat from the virus and stumbled in communicating to local public health officials what should be done.
The same week the CDC sent out the email about the job openings, the agency sent Nevada officials alerts about 80 potential coronavirus patients to monitor, documents show. Four were not Nevada residents.
A state epidemiologist, in each instance, corrected the agency, informing the CDC that the person was from New York, not Nevada. (The CDC then redirected each report to New York, the documents show.)

Wednesday, March 25, 2020

Richard Reeves, Columnist and Author on Presidents, Dies at 83 - The New York Times

Richard Reeves, author of numerous books about presidents and the internment of Japanese-Americans during World II.
Richard Reeves, Columnist and Author on Presidents, Dies at 83 - The New York Times
by Richard Stout
Richard Reeves, a journalist and author who explored the presidency, the internment of Japanese-Americans during World II, the role of the media and other aspects of American history in muscular, passionate and occasionally acerbic prose, died on Wednesday at his home in Los Angeles. He was 83.
His son, Jeffrey, said the cause was cardiac arrest. Mr. Reeves had been treated for cancer.
Mr. Reeves, who was a lecturer at the Annenberg School for Communication and Journalism at the University of Southern California, wrote more than a dozen books and, from 1979 to 2014, a syndicated column that appeared in more than 100 newspapers. He was also a familiar face on public affairs programs on PBS.
As an author, Mr. Reeves was in particular an insightful and unsparing student of the American presidency, producing well-received portraits of John F. Kennedy, Richard M. Nixon, Gerald R. Ford, Ronald Reagan and Bill Clinton.
His most recent book, “Infamy: The Shocking Story of the Japanese American Internment in World War II,” was published in 2015. In the book, Mr. Reeves accused two Army officers stationed on the West Coast, Lt. Gen. John DeWitt and Col. Karl Bendetsen — “both bigots, the former a fool, the latter a brilliant pathological liar” — of wildly exaggerating dangers posed by Japanese-Americans there.
Another villain, in his view, was Earl Warren, California’s attorney general (and later the chief justice of the United States), who was elected governor of the state in 1942 on a wave of anti-Japanese prejudice. Mr. Reeves also had harsh words for the press, accusing it of being complacent about President Franklin D. Roosevelt’s order that authorized the internment if not complicit in it.
Among recent presidents, Mr. Reeves rated Barack Obama fairly high. “No president since 1945 has been dealt such a difficult hand,” he asserted in a 2014 column, citing “the worst financial crisis since the 1930s” and “the legacy of George W. Bush’s disastrous, unnecessary war in Iraq.”
In columns written while Mr. Bush was in the White House, Mr. Reeves ranked him among the worst presidents, in a class with James Buchanan, Warren G. Harding and Richard M. Nixon. (Mr. Reeves was not much kinder to Senator John F. Kerry, Mr. Bush’s Democratic challenger in 2004, likening him to a student who got straight A’s not as a result of intellectual rigor but by parroting his teachers.)

No lies, no excuses - Biden ad re Corona Virus crisis

Empty threat: Trump Pence demands Dems cease and desist airing anti-Trump TV ad

Thomas, dissenting, objects to alien's right to be heard

 In a 7-2 decision the United States Supreme Court ruled that the federal courts have the authority to review the petition of an alien deported for commission of a crime who seeks to return to the United States.  The narrow statutory question is whether the Immigration and Nationality Act's [INA] limitation of review to "questions of constitutionality and law" extends to equitable considerations regarding whether an appeal is timely.  Justice Stephen Breyer, writing for the majority, takes an expansive view, as appears below.  But the headline is that Justice Clarence Thomas took the opportunity to urge the courts to further close the opportunities to people to seek justice. In this case it relates to the ability of individuals to seek review of federal agency actions.  Marcia Coyle comments below.  But first some language from Breyer to introduce the context. - gwc

Another subdivision [of the INA] , 8 USC §1252(a)(2)(D), which we shall call the Limited Review Provision, says that in such instances courts may consider only “constitutional claims or questions of law.” The question that these two consolidated cases present is whether the phrase “questions of law” in the Provision includes the application of a legal standard to undisputed or established facts.
Another subdivision, §1252(a)(2)(D), which we shall call the Limited Review Provision, says that in such instances courts may consider only “constitutional claims or questions of law.” The question that these two consolidated cases present is whether the phrase “questions of law” in the Provision includes the application of a legal standard to undisputed or established facts. 
A Doubting Thomas Raises More Questions
by Marcia Coyle, National Law Journal
In the court's immigration decision Monday in Guerrero-Lasprilla v. Barr, Thomas, in part of his dissenting opinion, said he has come "to have doubts about our modern cases applying the presumption of reviewability." Justice Samuel Alito Jr. did not join this part of the dissent.

Courts understand the presumption to mean they generally have jurisdiction to grant relief when individuals are harmed by unlawful agency actions—even where a statute is silent about judicial review. Thomas wrote that the modern presumption of reviewability, which the majority relied on in its decision, "goes far beyond this traditional approach."

Thomas cited three problems: "First, it elevates the supposed purpose or 'spirit' of the Administrative Procedure Act over the statute’s text. Second, the court’s test for rebutting the presumption relies heavily on legislative intent, inviting courts to discern the mental processes of legislators through legislative history." Third, to overcome the presumption, the clear-and-convincing-evidence requirement of congressional intent to preclude judicial review "appears to conflict with the text of the Constitution." —Marcia Coyle

Rev. Darius Swann, lead plaintiff in Supreme Court busing case, dies at 95 - The Washington Post

Torts Today: Darius Swann, lead plaintiff in Supreme Court busing case, dies at 95 - The Washington Post

Sunday, March 22, 2020

COVID-19: Certain Labor Law Considerations in China | Stay Informed | K&L Gates

COVID-19: Certain Labor Law Considerations in China | Stay Informed | K&L Gates


China's response: what patriotism - and socialism - look like.
In contrast to the halting steps taken here, China shut down Wuhan — the epicenter of the nation’s outbreak — and restricted movement in much of the country on Jan. 23, when the country had a mere 500 cases and 17 deaths.Its rapid action had an important effect: With the virus mostly isolated in one province, the rest of China was able to save Wuhan.Even as many cities fought their own smaller outbreaks, they sent 40,000 medical workers into Wuhan, roughly doubling its medical force.

Angela Merkel addresses the nation

Federal Defenders: 2d Circuit directs mediation re Bureau of Prisons obstructiveness of access to detainees

Image result for metropolitan detention center
The federal Metropolitan Detention Center
in Brooklyn, where the first detainee has tested
positive for corona virus 19
Federal Defenders v. Federal Bureau of Prisons - Second Circuit, March 20, 2020

2d Circuit judges John Walker, Barrington Parker, and Susan Carney write:
"the Federal Defenders have raised claim of the utmost gravity about the lawfulness of the BOP's unilateral curtailment of pretrial detainees and others confined...a dramatic challenge is presented by COVID-19...The impact of this recent emergency on jail and prison inmates, their counsel (in the lead the Federal Defenders), the United States Attorneys, and the BOP,including the wardens and personnel...is just beginning to be felt."

The Circuit panel directed the District Judge to appoint as a mediator "an individual with the stature, experience, and knowledge necessary to meditate this weighty dispute and ultimately facilitate the adoption of procedures for dealing with ongoing and future emergencies, including the COVID-19 outbreak." - GWC See opinion above