Update: Texas law profs support Democrats opposing GOP effort to void 100,000 Houston curbside ballots

 

November 2, 2020 UPDATE

The Texas Supreme Court yesterday denied certification of the Republicans "emergency petition for a writ of mandamus" to establish that the Harris County (Houston) use of curbside voting stations violates Texas law which calls for use of "structures" as voting places.

Texas Democrats and the Democratic Senate and House Campaign Committees have filed a brief in Opposition to the Republicans' federal action proposed emergency order to disqualify over 100,000 ballots.

They have been supported by three University of Texas law professors - Fishkin, Vladeck, and Rave as amici curiae.  The professors' brief argues straightforwardly:

 The Elections Clause does not grant federal courts the power to override a State’s construction of its own law or to create a private constitutional right of action in favor of individuals solely because they disagree with the State’s construction of its election laws. 

Fishkin, et al. go on to disparage the argument - recently bruited by Justice Brett Kavanaugh - barring a federal judge's allowance of additional time for Wisconsin voters' mail ballots to be received if postmarked by the election day. Kavanaugh,concurring in the majority's decision,  declared that "the text of Article II means that “the clearly expressed intent of the legislature must prevail” and that a state court may not depart from the state election code enacted by the legislature. Bush v. Gore, 531 U. S. 98, 120 (2000) (Rehnquist, C. J., concurring)."  It is a stunning argument, that usurps the principle of deference to state authority in the conduct of elections.

The Republican nominee for Texas's 18th Congressional District, a member of the state House of Representatives, and a Republican voter have filed suit in federal court.  Their theory - first voiced by Neil Gorsuch on October 26 in the action overturning a voter-protective Wisconsin decision - is that the Constitution compels any state court or official to literally enforce any term of an election law adopted by a state Legislature. 

​Shocked but not surprised.  A literal textual theory first voiced by Neil Gorsuch six days ago has gained momentum. Cited by Kavanaugh, then Alito, then the Eighth Circuit, it now is relied upon in Texas.

The GOP complaint in Hotze v. Collins, Harris County Clerk would void the ballots of some 100,000 Houston voters.  The Complaint asserts:

NATURE OF THE ACTION 1. By indiscriminately encouraging and allowing any and all Harris County registered voters to cast their ballots via curbside drive-thru voting, Defendant is violating both federal and state law, and Plaintiffs will suffer irreparable injury if such ultra vires action is not stopped. By circumventing the Texas Legislature and implementing a manner of voting not recognized under the Texas Election Code, Defendant is violating Article I, section IV, clause 1 of the United States Constitution. Additionally, by adopting a manner of voting that is inconsistent with the T33exas Election Code, and upon information and belief not adopted by any other county in Texas, Defendant is violating the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. 

Halloween at Castle Village in the time of Covid 19

 

Swish - BHO

 

so this was absolutely insane pic.twitter.com/W4JL6LQZxq

— Olivia Raisner (@OliviaRaisner) October 31, 2020

China - thinking systematically - The Fifth Plenum - Sinocism

The Chinese Communist party seeks to be the party permanently in power.  It is a timeless, ahistorical vision, maintained by discipline and by force.  Intolerant of any challenge to its authority it none the less is dedicated to the country's security and prosperity.  Bill Bishop's Sinocism newsletter is the premier source on news from China.  The Plenum of the Central Committee is meeting and will soon announce the fourteenth five year plan.

The Fifth Plenum - Sinocism

Opinion | The Supreme Court Should Not Muck Around in State Election Laws - The New York Times

One Bush v. Gore is more than enough.

Opinion | The Supreme Court Should Not Muck Around in State Election Laws - The New York Times

by Akhil Amar (Yale), Vikram Amar (Illinois), and Neal Katyal (Georgetown)

As Supreme Court Weighs Election Cases, a New Life for Bush v. Gore - The New York Times

As Supreme Court Weighs Election Cases, a New Life for Bush v. Gore - The New York Times

by Adam Liptak

***The Florida recount that gave rise to Bush v. Gore has had extra resonance for both sides this election, the most litigated in recent history, with more than 400 suits filed.

Even 20 years later, Democrats still harbor bitter memories from the court’s 2000 decision, given that it ended a hand recount that aides in the Gore campaign believed might have delivered a different result.

In an odd coincidence, Justice Kavanaugh worked on the recount litigations in Florida, on the Republican side, as a young lawyer. So did Justice Barrett and Chief Justice Roberts.

Europe: Exponential growth in covid19 //IHME

Europe: Exponential growth in covid19 -Institute for Health Metrics and Evaluation - UW [IHME  ]

Exponential growth in COVID-19 cases and deaths continues in the WHO European Region unabated, with daily cases increasing by a third and daily deaths increasing by 38% compared to the week prior. Although a number of local jurisdictions are imposing social distancing mandates, we expect that the increase in cases and deaths will steadily continue through the next two to three months. These trends will put profound pressure on health systems, and we are already seeing some countries putting in place alternative means to increase hospital bed capacities. France, Spain, the United Kingdom, the Netherlands, and the Russian Federation currently account for the majority of cases in the region. One of the best strategies to delay imposition of social distancing mandates and reduce the death toll remains expanding mask use. If mask-wearing in public were to increase to 95%, 278,000 lives could be saved before the end of January 2021. Current situation • Exponential growth continues, with daily cases in the last week exceeding 100,000, up from 75,000 the week before (Figure 1).****

Election anxiety takes hold | National Catholic Reporter

Election anxiety takes hold | National Catholic Reporter

by Michael Sean Winters

In the final stretch, Joe Biden's character and Catholicism are greasing the wheels to victory.

The conversation many of us have been having with ourselves in the shower or when walking the dog is now spilling into private conversations with friends and even onto Twitter: What are you hearing from Florida? From Pennsylvania? Do you trust the polls? Do you think Biden has this thing nailed down? Will we know that night? What is different from 2016? No one wants to jinx it, but the anxiety is too great to bear it alone.

The pandemic has demonstrated Trump's incompetence in a way nothing else has. And while his repugnant personal character has been there for all to see, some voters said they did not care about it so long as he delivered conservative judges and a booming economy. Now, his character is in the way of effectively confronting the pandemic, and that makes it harder to look away.

Biden was not my choice to be the standard bearer of the Democratic Party, but more than any other Democratic candidate, he has largely sworn off the culture-war issues that have dogged Democrats in the heartland. It was a remarkable achievement that this year's truncated, virtual Democratic National Convention did not emulate the "abortion-palooza" nonsense of 2012 nor feature pro-choice leaders "shouting out" their abortions. People know where he stands on the issue, and his positions are nearly identical to those of Secretary Clinton. He doesn't need to spend an inordinate amount of time focused on it. Same with gay rights.

The Holy Father, in his recent encyclical, Fratelli Tutti, explained that he had intended to focus on interreligious dialogue, but the pandemic required him to adjust his focus. A threat such as this demonstrated the need to strengthen the bonds of solidarity in society, to even go beyond solidarity to a sense of social fraternity. The American people have understood the need to recalibrate virtually everything in their lives, from the ways their children attend school to the frequency with which we all shop and entertain and even worship. Only the president and his acolytes behave as if nothing need change. He and Vice President Mike Pence continue to talk about freedom when discussing the coronavirus, yet it is the libertarian tic in the American psyche that is a large part of the reason our situation so much worse than other countries.

One acolyte warrants special mention. If Justice Amy Coney Barrett really believes what she has said about how different the judiciary is from the political branches, why did she consent to participate in what amounted to a campaign rally at the White House Monday night after the Senate voted to confirm her? In her remarks, she said, "My fellow Americans, even though we judges don't face elections, we still work for you." Yet, she was standing next to someone who routinely denigrates "Democrat-run cities" and "Democrat-run states." Her defenders speak of her sterling character. Sterling character is made of sterner stuff.

Twenty GOP former U.S. Attorneys back Biden

Twenty GOP former U.S. Attorneys back Biden in open letter

We firmly believe that Vice President Joe Biden is the candidate who can – and will – provide the leadership we need to refocus the Justice Department on the cause of impartial justice and to address the deep-seated societal issues that are roiling our country today. We give him our strongest endorsement, and we hereby announce that we will each be voting for Joe Biden and Kamala Harris to serve as the next President and Vice President of the United States. 

Amy Coney Barrett’s Judicial Philosophy Doesn't Hold Up to Scrutiny - Angus King and Heather Richardson The Atlantic

Originalism is club swung crudely.  Like textualism it turns factors into commands.  Due process is a concept that deepened from its origins in the Magna Carta to today.  It cannot be commanded to stop evolving at any particular time...one cannot say this far but no farther for due process nor for equal protection of the laws.  - GWC

Amy Coney Barrett’s Judicial Philosophy Doesn't Hold Up to Scrutiny - The Atlantic

By Angus King (D-ME) and Heather Cox Richardson (Boston College)

To put it bluntly, the whole premise of originalism is nonsense in that it pretends to make the work of the Supreme Court look straightforward and mechanical, like “calling balls and strikes,” in Justice John Roberts’s famous phase. But defining equal protection, due process, or unreasonable is not. We need a Supreme Court to interpret the intent and appropriate application of the terms of the Constitution to particular cases (many not dreamed of by the Framers).

Originalism is an intellectual cloak drummed up (somewhat recently) to dignify a profoundly retrogressive view of the Constitution as a straitjacket on the ability of the federal government to act on behalf of the public. Its real purpose is to justify a return to the legal environment of the early 1930s, when the Court routinely struck down essential elements of the New Deal. Business regulation, Social Security, and Medicare? Not so fast. The Affordable Care Act, environmental protections, a woman’s right to choose? Forget it. And this despite the Constitution’s preamble, which states that one of its basic purposes is to “promote the general welfare.”

This does not mean that the Court should be totally unmoored from the text of the Constitution or the intent of the Framers and act as an unchecked super-legislature (with lifetime tenure to boot). Clearly, this would be inconsistent with the underlying democratic idea that the American people should be the ultimate decision makers through regular elections and the actions of their elected representatives. The Court must interpret and apply the terms of the Constitution according to their plain meaning (where there is a plain meaning) and the understanding and intent of the Framers (where there was such a thing). But it also must recognize that our understanding of our principles and values has expanded over time, and it must interpret the law in the context of that growth.

Eric Topol, MD: there is light ahead on covid19

Eric Topol, M.D. is a superstar at Scripps Institute.  He points a path forward.  Yes - masks, etc. - but there is also great improvement in treatment and prospects for medical advances in treatment and prevention are encouraging.  Follow the thread. - GWC

 

@threadreaderapp unroll https://t.co/xZDfeZ2HKG

— George Conk (@GeorgeConk) October 26, 2020

Partial guide to Supreme People’s Court documents | Supreme People's Court Monitor

A terrific resource for finding your way through a key resource. - GWC

Partial guide to Supreme People’s Court documents | Supreme People's Court Monitor

by Susan Finder

McConnell - spiking the ball?

 Senate Majority Leader McConnell has declared his purpose in such a plain way that it will become an anchoring point in moves to expand the size of the Supreme Court, other federal courts, and otherwise restructure the system, such as to impose fifteen year terms. - gwc

This is McConnell spiking the football. He doesn't do it often. But he is rubbing Democrats' nose in it.

I think he will live to regret it. https://t.co/wLqTjpbwIs

— Adam Jentleson 🎈 (@AJentleson) October 26, 2020

The get rid of Fauci and independent Administrative Judges Executive Order| The White House

 Trump has signed an order exempting from Civil Service protections high ranking career servants like Anthony S. Fauci, M.D., Director of  the National Institute of Allergies and Infectious Diseases (NIAID) And Administrative Law judges who fail to toe the line. - GWC

Executive Order on Creating Schedule F In The Excepted Service | The White House

Symposium: Shining a light on the shadow docket - SCOTUSblog

 The Supreme Court is creating law by blocking injunctions of courts below - usually without opinion, and without the usual slow deliberative process f cases accepted for review.

Torts Today: Symposium: Shining a light on the shadow docket - SCOTUSblog

Justices allow Alabama to restore ban on curbside voting - SCOTUSblog

In Merrill, Alabama Secretary of State v. People First of Alabama  the United States Supreme Court the conservative majority has blocked an injunction that sought to protect voting rights.  Two Alabama Counties - in order to ease obstacles to voting - approved curbside voting.  The state's Secretary of State blocked the decision.  But Abdul K. Kallon, a United States District Judge, on a full record, on September 30 ordered the State to permit the counties to proceed.  The Supreme Court has stayed that order, thus making voting more difficult.  Justice Sonia Sotomayor, who has in a string of cases objected to the Court's early interventions, dissented.  Justices Kagan and Breyer joined her. 

Kallon began his ruling this way:

Voting is an inviolable right, occupying a sacred place in the lives of those who fought to secure the right and in our democracy, because it is “preservative of all rights.”¹ The parties do not dispute those fundamental truths. The parties’ dispute centers instead on whether three provisions of Alabama’s election laws—the requirement that a notary or two witnesses sign absentee ballot affidavits, the requirement that absentee voters submit a copy of their photo ID with an absentee ballot application, and the de facto ban on curbside voting²—violate the right to vote in light of the COVID-19 pandemic.

 The plaintiffs assert that the defendants’ enforcement of the Challenged Provisions during the pandemic compels voters to risk exposure to COVID-19 in order to exercise their right to vote, leading to potentially deadly consequences for vulnerable voters whose age, race, disabilities, or health conditions place them at heightened risk from the virus. The plaintiffs contend that forcing voters to bear that risk runs afoul of their fundamental right to vote and violates federal law, and they seek an order barring the defendants from enforcing the Challenged Provisions for the general election in November. Without this relief, the plaintiffs believe voters will face an impossible choice between jeopardizing their health by engaging in person-to-person contact they would not otherwise have or sacrificing their right to vote during the COVID-19 pandemic.

Sotomayor wrote:

This stay application arises from the Alabama secretary of state’s decision to ban curbside voting despite the ongoing COVID–19 crisis and the willingness of certain Alabama counties to assist voters with disabilities. Following a lengthy trial and resting on an extensive record, the District Court found, among other things, that the secretary’s ban violates the Americans with Disabilities Act (ADA) by forcing voters with disabilities, for whom COVID–19 is disproportionately likely to be fatal, to risk unnecessary exposure to the virus if they wish to vote in person. The District Court enjoined the secretary’s ban, thus allowing counties that are ready to adopt curbside voting to do so.  

She concluded:

The injunction lifts burdensome requirements rather than imposing them, and permits county officials to help educate voters about whether curbside voting is available in their county.  Moreover, the injunction neither invalidates state law nor prohibits the secretary from issuing guidance consistent with the District Court’s ruling.  Plaintiff Howard Porter, Jr., a Black man in his seventies with asthma and Parkinson’s Disease, told the District Court: “‘[S]o many of my [ancestors] even died to vote. And while I don’t mind dying to vote, I think we’re past that – we’re past that time.’”   

Election officials in at least Montgomery and Jefferson Counties agree. They are ready and willing to help vulnerable voters like Mr. Porter cast their ballots without unnecessarily risking infection from a deadly virus. This Court should not stand in their way. I respectfully dissent.

****

Article I, Section 4  of the Constitution lays responsibility for organizing elections on the states.  It provides:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

As is typical when it issues stay orders the Supreme Court majority does so without opinion.  We learn therefore from the occasional dissenting opinion how the majority may have reached its conclusion.  It may be inferred that  the heart of the rationale is that a federal court should not intervene in state's management of its election procedures at a time close to the election.  This is commonly called the Purcell principle.

One must ask - what are the interests that drive such a ruling?  Is it the business of the United States courts to maximize or ease the path to voting?  Or is the court properly limited by the Constitution to stand off?  Is the convenience of persons with disabilities affecting ability to stand or walk a relevant consideration?  If a state decides that assuring the security and reliability of the election is more important than easing the burdens of voting is there any ground for the federal government to intervene in such a judgment?  Is there any relevance of the Fifteenth Amendment to analysis of the burdens of notarized ballots, and limiting the places and methods by which votes may be cast?  The 15th Amendment provides "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."  In the absence of proof of discriminatory intent does the Amendment count for anything?  Should disparate impact be enough ground to act? Is the tortured history of Alabama's constitutional efforts to suppress the African American vote relevant?

Are the considerations different in immigration cases?  In Wolf v. Cook County, Illinois the Supreme Court stayed an order - upheld by the 7th Circuit [over an Amy Coney Barrett dissent] which blocked enforcement of the public charge rule which bars from immigration anyone whom the government thinks may at some point claim public benefits such as for medicaid.  Is  deference to Executive branch policy choices an appropriate stance for a court to embrace? 

In Wolf the court begins it's opinion by saying 

Like most people, immigrants to the United States would like greater prosperity for themselves and their families. Nonetheless, it can take time to achieve the American Dream, and the path is not always smooth. Recognizing this, Congress has chosen to make immigrants eligible for various public benefits; state and local governments have done the same.

 Is it improper for a court - perhaps out of personal sympathies - reject such a rule as inconsistent with the Asylum law, and a tradition of welcoming as refugees people suffering from climate disasters [Haiti], anti-semitism [Russian Jews], or dictatorship [Cuba]?

- GWC

Justices allow Alabama to restore ban on curbside voting - SCOTUSblog

by Amy Howe

Francis becomes 1st pope to endorse same-sex civil unions

Francis becomes 1st pope to endorse same-sex civil unions

 

Dorf on Law: Confronting Originalism: Truths and Myths

An accessible and lucid survey by Professor Segall with helpful links on how originalism (viz. Amy Coney Barrett) has become a signal, not a method of analysis. - gwc

Dorf on Law: Confronting Originalism: Truths and Myths

by Eric Segall

"in 2020, the most important truth about Originalism is that it is no longer a distinctive theory of constitutional interpretation but a signifier of and justification for conservative or libertarian politics. And this shouldn't be surprising because, after all, law is politics 90% of the way down."

Justices take up border-wall, “remain in Mexico” cases - SCOTUSblog

Torts Today: Justices take up border-wall, “remain in Mexico” cases - SCOTUSblog

Supreme Court hands Democrats a small victory. It’s likely to be a big defeat in the long run. - Vox

Supreme Court hands Democrats a small victory. It’s likely to be a big defeat in the long run. - Vox

In Republican party of Pennsylvania v. Boockvar a divided Pennsylvania Supreme Court allowed to stand an order that allowed three days beyond the November 3 election day.  The decision was allowed to stand by an evenly divided Supreme Court of the United States.

Opinion | I Was Reagan’s Solicitor General. Here’s What Biden Should Do With the Court. - The New York Times

Opinion | I Was Reagan’s Solicitor General. Here’s What Biden Should Do With the Court. - The New York Times

by Charles Fried

Almost the whole country is in the "Uncontrolled Spread" category - Eric Topol, MD - Scripps Institute

 Yesterday: US. 69 K new covid cases reported Germany 5K Italy 11K UK 16K China 13 NZ 0

Almost the whole country is in the "Uncontrolled Spread" category https://t.co/BuuW28dyJl 1/ pic.twitter.com/sVPx8Tncp5

— Eric Topol (@EricTopol) October 18, 2020

Michigan: Trump, crowd chant "Lock 'em up"

 

Gunmen in the legislative chamber - Michigan May 2020

When gunmen massed in the Michigan State Capitol we asked Is it sedition?

Last week plotters to kidnap Governor Whitmer were indicted.  Trump's response? 

Incite his crowd to lock up the Governor, not the plotters. - gwc

The President mentions the Governor of Michigan, the crowd chants lock her up, and the President says lock them all up pic.twitter.com/9wuB7blnoP

— Acyn Torabi (@Acyn) October 17, 2020

Dr. Tom Frieden herd stupidity - a bad week

 

Saluti, you can read it here: @DrTomFrieden: Covid Epi Weekly: Immunizing Against Herd Stupidity Bad week for fight against Covid. Reopening without… https://t.co/VvhteKxoo7 See you soon. 🤖

— Thread Reader App (@threadreaderapp) October 17, 2020

First Things - False Choices - Hiroshima and Nagasaki | Commonweal Magazine

George Weigel the editor of First things - house organ of the intellectual sky writers of the Catholic right - is appalled by abortion and moral relativism, but good with incinerating Japanese cities.  How does one go from absolutism to relativism in that way? - gwc
False Choices | Commonweal Magazine

The bombing of Hiroshima and Nagasaki was unjustifiable.

By John Schwenkler & Mark Souva

October 14, 2020

Atrain is hurtling down the tracks. Ahead of it lies a group of five people, tied to the tracks and unable to escape. The only way to save their lives is to switch the train onto a different track—a track on which only a single person is tied down. You stand at the lever that can switch the train. No one else is around. No other options are available to you. What should you do? Kill the one to save the five, or let the five die because you refuse to kill the one?

For the past fifty years, scenarios like this one have played an outsized role in popular and academic discussions of moral decision-making. Such discussions are not, perhaps, without some value. But one of their bad effects is the way they invite us to conceive of the moral life as a series of decontextualized choices between strictly fixed options, with the outcome of each one guaranteed in advance. Kill the one or the five will die. Torture the terrorist suspect or the plane will be hijacked. Lie to the Nazi soldiers or he will certainly find the Jews who are hidden in your basement. What’s missing is the role of creative practical thinking—what the scholastics called prudentia—in considering the possibilities and determining how to act. Also missing, the importance of reflection on how we got here—what the decisions are that we and others made to land us in a morally challenging situation. Here I am, standing alone at a lever in a railyard, the lone person responsible for the lives of five captive people…well, what in the world can have happened to me? Did I get involved with a bad set, perhaps? Isn’t this a thing we ought to be thinking about, if we want to think about how a person ought to live?

When moral life is conceived of as a series of fixed choices, each of which arises in what might as well be a vacuum, a natural response is to evaluate those choices simply in terms of the number of people affected: in every case, the correct thing to do is the thing that will minimize suffering. This response is natural, but not inevitable. We can and must consider not only the consequences of our possible actions, but also those fixed principles that rule certain options out no matter the situation we are in. It is precisely for this reason that prudence is so essential. Such is the consistent teaching of the Church through its history: that one must never do evil—not even to avoid a seemingly greater evil or achieve a very great good. The teaching can be a difficult one. Sometimes it calls for great sacrifice. But the Christian’s commitment to it is rooted in our confidence that the world is in the hands of a loving and provident God, whose commands are just and ordained to our own happiness. This, again, is the unbroken teaching of our Church. And it is hard to see its rationale when we allow the moral life to be construed in the way that we have just described, as a series of fixed choices that may as well have no history or wider context.

What’s missing is the role of creative practical thinking in considering the possibilities and determining how to act.

All these mistakes are on display in George Weigel’s recent attempt, online at First Things, to defend Harry Truman’s bombing of the Japanese cities of Hiroshima and Nagasaki. There is the framing of Truman’s choice as between a totally fixed set of options: to firebomb Japanese cities, to starve the Japanese by blockade, or to use atomic weapons in an effort to “stun Japanese politicians” into capitulation. Nothing else could be done. There is the certainty that, in each case, we knew exactly what the outcome of a given choice would be. The choice saved lives. 

147,000 prisoners hit by Coronavirus | The Marshall Project

A State-by-State Look at Coronavirus in Prisons | The Marshall Project

By Oct. 15, at least 147,051 people in prison had tested positive for the illness, a 3 percent increase from the week before. This was the lowest weekly increase among prisoners since June. The numbers suggest infections are slowing in prisons, while the rest of the nation on the outside starts to observe rising numbers of new cases as autumn sets in.

New cases among prisoners reached an all-time high in early August after slowing down in June, driven by big jumps in prisoners testing positive in Florida, California and the federal Bureau of Prisons as well as outbreaks in Arkansas, Hawaii and Oklahoma.

Reported cases first peaked in late April, when states such as Michigan, Ohio, Tennessee and Texas began mass testing of prisoners. Those initiatives suggested that coronavirus had been circulating among people without symptoms in much greater numbers than previously known.

There have been at least147,051 casesof coronavirus reported among prisoners.

122,751 prisoners have recovered.

Sen. Harris presses Barrett on anti-labor record

Kamala Harris laid out all the times Amy Coney Barrett ruled in favor of businesses over workers pic.twitter.com/rzEJLg7k42

— NowThis (@nowthisnews) October 16, 2020

Opinion | Republican Judges Are Quietly Upending Public Health Laws - The New York Times

Opinion | Republican Judges Are Quietly Upending Public Health Laws - The New York Times
By John Fabian Witt

Alongside growing controversy over judicial nominations, court reform and Covid-19 policies, American law is in the midst of a little-noticed paradigm shift in courts’ treatment of public health measures.

The Republican Party’s campaign to take over the federal and state courts is quietly upending a long and deeply embedded tradition of upholding vital public health regulations. The result has been a radically novel and potentially catastrophic sequence of decisions blocking state responses to the coronavirus pandemic.

For centuries, American constitutional law granted state governments broad public health powers. “Salus populi suprema lex,” the old saying went: The health of the people is the supreme law. Such authority went back to the beginning of the Republic. In the famous 1824 case of Gibbons v. Ogden, Chief Justice John Marshall defended the “acknowledged power of a State to provide for the health of its citizens.” States, he explained, were empowered to enact “inspection laws, quarantine laws” and “health laws of every description.”

Lemuel Shaw of Massachusetts, who was arguably the most respected state judge of the 19th century, supported vast public health powers and described states’ authority to control epidemics as central to the sovereign power of government. The Alabama Supreme Court agreed, citing the old dictum of salus populi, and courts in states like Georgia and Louisiana followed. In New York, the state’s highest court upheld disruptive health regulations like a ban on burials in urban church cemeteries. After the Civil War, New York’s courts upheld the Legislature’s decision to vest local boards with “absolute control over persons and property, so far as the public health was concerned.”***

Inside the Fall of the CDC — ProPublica

Inside the Fall of the CDC — ProPublica

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

At 7:47 a.m. on the Sunday of Memorial Day weekend, Dr. Jay Butler pounded out a grim email to colleagues at the Centers for Disease Control and Prevention in Atlanta.

Butler, then the head of the agency’s coronavirus response, and his team had been trying to craft guidance to help Americans return safely to worship amid worries that two of its greatest comforts — the chanting of prayers and singing of hymns — could launch a deadly virus into the air with each breath.

The week before, the CDC had published its investigation of an outbreak at an Arkansas church that had resulted in four deaths. The agency’s scientific journal recently had detailed a superspreader event in which 52 of the 61 singers at a 2½-hour choir practice developed COVID-19. Two died.

Butler, an infectious disease specialist with more than three decades of experience, seemed the ideal person to lead the effort. Trained as one of the CDC’s elite disease detectives, he’d helped the FBI investigate the anthrax attacks, and he’d led the distribution of vaccines during the H1N1 flu pandemic when demand far outstripped supply.

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But days earlier, Butler and his team had suddenly found themselves on President Donald Trump’s front burner when the president began publicly agitating for churches to reopen. That Thursday, Trump had announced that the CDC would release safety guidelines for them “very soon.” He accused Democratic governors of disrespecting churches, and deemed houses of worship “essential services.”

Butler’s team rushed to finalize the guidance for churches, synagogues and mosques that Trump’s aides had shelved in April after battling the CDC over the language. In reviewing a raft of last-minute edits from the White House, Butler’s team rejected those that conflicted with CDC research, including a worrisome suggestion to delete a line that urged congregations to “consider suspending or at least decreasing” the use of choirs.

On Friday, Trump’s aides called the CDC repeatedly about the guidance, according to emails. “Why is it not up?” they demanded until it was posted on the CDC website that afternoon.

The next day, a furious call came from the office of the vice president: The White House suggestions were not optional. The CDC’s failure to use them was insubordinate, according to emails at the time.

Fifteen minutes later, one of Butler’s deputies had the agency’s text replaced with the White House version, the emails show. The danger of singing wasn’t mentioned.

Early that Sunday morning, as Americans across the country prepared excitedly to return to houses of worship, Butler, a churchgoer himself, poured his anguish and anger into an email to a few colleagues.

“I am very troubled on this Sunday morning that there will be people who will get sick and perhaps die because of what we were forced to do,” he wrote.

When the next history of the CDC is written, 2020 will emerge as perhaps the darkest chapter in its 74 years, rivaled only by its involvement in the infamous Tuskegee experiment, in which federal doctors withheld medicine from poor Black men with syphilis, then tracked their descent into blindness, insanity and death.

With more than 216,000 people dead this year, most Americans know the low points of the current chapter already. A vaunted agency that was once the global gold standard of public health has, with breathtaking speed, become a target of anger, scorn and even pity.

How could an agency that eradicated smallpox globally and wiped out polio in the United States have fallen so far?

KEEP READING

John Snow appeal: Epidemiologists warn on "herd immunity" call for social controls

 

NEW Correspondence—80+ researchers warn that a so-called #herdimmunity approach to managing #COVID19 is “a dangerous fallacy unsupported by the scientific evidence” #WCPH2020 https://t.co/2gTtklAkwx pic.twitter.com/q4YNZFJM22

— The Lancet (@TheLancet) October 14, 2020

Scientific consensus on the COVID-19 pandemic: we need to act now - The Lancet

Scientific consensus on the COVID-19 pandemic: we need to act now - The Lancet

eLECTION LAW: Freeing Purcell from the Shadows | Take Care

Torts Today: Freeing Purcell from the Shadows | Take Care

Supreme Court nominee Amy Coney Barrett’s originalist approach to the Constitution, explained - Vox

Supreme Court nominee Amy Coney Barrett’s originalist approach to the Constitution, explained - Vox
By Ian Millhiser

Judge Amy Coney Barrett’s Supreme Court confirmation hearings begin on Monday, and it’s a safe bet that we’ll hear one word over and over again over the next few days: “originalism.” Barrett is a self-proclaimed originalist, embracing a theory of the Constitution that is also shared by at least two other sitting justices: Justices Clarence Thomas and Neil Gorsuch.

Originalism, in Barrett’s words, is the belief that “constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative.” Judges, originalists maintain, should be bound by the words of the Constitution, and the meaning of those words should be determined solely based on how they were understood when they were added to the Constitution.

One of the primary appeals of originalism is that it purports to constrain judges by requiring them to follow a written text even when they dislike the outcomes that text commands. “The main danger in judicial interpretation of the Constitution,” Justice Antonin Scalia said in a 1988 lecture explaining why he is an originalist, “is that the judges will mistake their own predilections for the law.”

At least in theory, originalism prevents judges from making this mistake by lashing them to the unchanging meaning of a written document. And, at least on the surface, its core insight that judges are bound by the Constitution’s words seems obvious: Of course judges should obey the text of the Constitution!

In reality, however, following the text of the Constitution is more complicated than it sounds.

The Hart Senate Office Building Room is set up for the confirmation hearing of Supreme Court nominee Amy Coney Barrett.

 Caroline Brehman/CQ-Roll Call/Getty Images

For one thing, the Constitution is riddled with ambiguous language. What are the “privileges or immunities of citizens of the United States”? What makes a search or seizure “unreasonable”? If the government wants to deny “liberty,” how much “process” is “due”? What’s a “public use” of private property? What is the “general welfare of the United States”?

The meaning of much of the Constitution is vague and uncertain, and it was vague and uncertain when it was drafted. There are limits to what a judge can learn about constitutional meaning by combing through historical documents, or by reading 18th-century dictionaries.

Barrett herself seems to acknowledge this problem. “For an originalist,” Barrett wrote in 2017, “the meaning of the text is fixed so long as it is discoverable.”