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Tuesday, July 5, 2022
'Indefensible': Outrage as New Reporting Shines Light on Biden Deal With McConnell
https://www.commondreams.org/news/2022/07/01/indefensible-outrage-new-reporting-shines-light-biden-deal-mcconnell
The president has reportedly agreed to nominate an anti-abortion Republican to a lifetime judgeship. In exchange, McConnell has vowed to stop blocking two Biden picks for term-limited U.S. attorney posts.
Jake Johnson July 1, 2022
The details of President Joe Biden's deal with Republican Senate Minority Leader Mitch McConnell to nominate an anti-abortion lawyer to a lifetime federal judgeship came into clearer focus on Friday, sparking fresh calls for top congressional Democrats to block the proposed agreement.
Slate's Mark Joseph Stern reported Friday that "McConnell will allow Biden to nominate and confirm two U.S. attorneys to Kentucky"—positions that are term-limited—if the president nominates Republican lawyer Chad Meredith to a post on the United States District Court for the Eastern District of Kentucky.
"Under the arrangement, Meredith would take the seat currently occupied by Judge Karen Kaye Caldwell, a George W. Bush nominee," Stern noted. "Caldwell submitted her move to senior status on June 22, which, once complete, will allow Meredith to take the seat. A lawyer with connections to the Kentucky governor's office who is familiar with the agreement told Slate that Caldwell conditioned her move upon the confirmation of a successor—specifically, the conservative Meredith."
The terms of the deal as well as its timing—right on the heels of the Supreme Court's decision last week to strike down Roe v. Wade—infuriated Democratic lawmakers and advocates who are currently fighting to shield reproductive rights from Republican officials like Meredith, who defended anti-abortion laws during his tenure as Kentucky's solicitor general.
Rep. John Yarmuth (D-Ky.), who had planned to recommend nominees for the Eastern District in the case of a vacancy, told Slate that Biden's deal with McConnell is "indefensible" and that he has expressed his "outrage" to the White House, which has yet to publicly acknowledge the arrangement.
"I understand how brutally manipulative Mitch is, but at some point you have to stand up to him," Yarmuth told the outlet. "You have to just confront him and say, 'No, we're not gonna appoint your people. We're not gonna let Mitch McConnell appoint judges and other federal officials in a Democratic administration.'"
McConnell's ability to obstruct Democrats' U.S. attorney nominees despite being in the minority stems from the majority party's—and, apparently, the president's—continued adherence to the "blue-slip" tradition that gives senators veto power over nominees for posts in their home states.
Senate Republicans abandoned the blue-slip courtesy when they were last in power, and progressives have urged Democrats to follow suit.
Ian Millhiser, a senior correspondent for Vox, slammed the Biden-McConnell deal as "unconscionable" and called on Democratic leaders to ensure Meredith is not confirmed.
Sen. Dick Durbin (D-Ill.), the chair of the Senate Judiciary Committee, "should pledge that Meredith will receive no hearing," Millhiser wrote.
"And Senate Majority Leader Chuck Schumer," Millhiser added, "should pledge he'll get no floor vote."
Federal Abortion Ban Desired by GOP Would Increase Maternal Deaths by 24%: Study
https://www.commondreams.org/news/2022/07/01/federal-abortion-ban-desired-gop-would-increase-maternal-deaths-24-study
"Pregnancy shouldn't kill people—in fact, in other rich countries it very rarely does," said the lead author of the new analysis.
Jake Johnson July 1, 2022
New research published Thursday by experts at the University of Colorado Boulder estimates that a nationwide abortion ban of the kind Republican lawmakers are intent on pursuing would increase maternal mortality in the United States by 24%.
Released just days after the U.S. Supreme Court ended the constitutional right to abortion—triggering total bans in a number of GOP-led states—the analysis uses newly available data from 2020 to show that the "increased exposure to the risks of pregnancy" caused by a federal abortion ban "would cause an increase of 210 maternal deaths per year (24% increase), from 861 to 1071."
"We know that the so-called 'pro-life' movement has nothing to do about saving lives, it's about control."
The researchers stress that their estimate, which has not been peer-reviewed, is conservative—it only takes into account the higher mortality risk of continuing pregnancy to term.
"We find that increases in some states would be as great as 29%, while in others, because of already extremely low abortion rates and numbers, less than one additional death would be expected," they note. "Banning abortion will likely change maternal mortality in ways beyond exposing more people to the existing risks of maternal death; any increase in maternal mortality due to these changes would be in addition to our estimates."
The U.S. already has the highest maternal mortality rate among rich nations. A recent study by the Commonwealth Fund found that "although most are preventable, maternal deaths have been increasing in the United States since 2000."
"In 2018, there were 17 maternal deaths for every 100,000 live births in the U.S.—a ratio more than double that of most other high-income countries," the study noted. "In contrast, the maternal mortality ratio was three per 100,000 or fewer in the Netherlands, Norway, and New Zealand."
Amanda Jean Stevenson, assistant professor of sociology at the University of Colorado Boulder and the lead author of the new analysis, told the Denver Post on Thursday that "pregnancy shouldn't kill people—in fact, in other rich countries it very rarely does."
"The arithmetic truth our findings reveal is simple: reducing abortions increases maternal deaths," Stevenson and her colleagues write. "The additional maternal deaths we estimate here could be avoided if we help people get wanted abortions, if we make pregnancy and birth safer—particularly for Black people—and, of course, if we do not ban abortion in the first place."
Survey data released both before and in the wake of the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization indicates that a majority of U.S. voters would oppose a nationwide abortion ban.
But public sentiment doesn't appear to be deterring far-right groups and their anti-abortion allies in Congress. As the Washington Post reported in May, "Leading anti-abortion groups and their allies in Congress have been meeting behind the scenes to plan a national strategy" in anticipation of the Supreme Court's ruling.
"A group of Republican senators has discussed at multiple meetings the possibility of banning abortion at around six weeks, said Sen. James Lankford (Okla.), who was in attendance and said he would support the legislation," the Post reported. "Sen. Joni Ernst (R-Iowa) will introduce the legislation in the Senate, according to an antiabortion advocate with knowledge of the discussions who spoke on the condition of anonymity to discuss internal strategy."
Days after the Washington Post published its story, Senate Minority Leader Mitch McConnell (R-Ky.) signaled that the Republican Party could attempt to enact a federal abortion ban if it retakes Congress in November.
"We know that the so-called 'pro-life' movement has nothing to do about saving lives, it's about control," former Ohio state Sen. Nina Turner tweeted Thursday, citing the new University of Colorado Boulder research.
"There is no time to waste," Turner added. "The Senate must abolish the filibuster to codify Roe."
'Payoff for 40 Years of Dark Money': Supreme Court Delivers for Corporate America
https://www.commondreams.org/news/2022/07/01/payoff-40-years-dark-money-supreme-court-delivers-corporate-america
"It was the conservative court's larger agenda to gut the regulatory state and decimate executive powers to protect Americans' health and safety," warned one expert.
Jake Johnson July 1, 2022
Over the past several decades, corporate lawyers, right-wing activists, Republican officials, and dark money groups with deep pockets have been laying the groundwork for a far-reaching legal assault on the federal government's ability to regulate U.S. industry—including the oil and gas sector threatening the planet.
On Thursday, their investments bore major fruit.
In a 6-3 decision along ideological lines, a Supreme Court packed with right-wing judges handpicked and boosted by some of the same forces leading the yearslong crusade against the power of regulatory agencies—which conservatives often dub the "administrative state"—dramatically restricted the Environmental Protection Agency's authority to rein in greenhouse gas pollution from power plants.
"The court deals yet another blow to the ability of the United States to democratically govern in the face of severe public policy crises."
On its face, the ruling in West Virginia v. EPA appears limited in scope, pertaining to a specific section of the 1970 Clean Air Act and zeroing in on the reach of a single government agency.
But experts saw in the decision, authored by Chief Justice John Roberts, an ominous warning that the Supreme Court is ramping up its assault on the federal government's capacity to act on matters ranging from environmental protection to workplace safety to public health to consumer protection.
Lawrence Gostin, a professor at Georgetown Law, argued that the high court's right-wing majority wasn't really concerned with the Clean Power Plan, an Obama-era zombie regulation at the center of West Virginia that never even took effect.
"It was the conservative court's larger agenda to gut the regulatory state and decimate executive powers to protect Americans' health and safety," wrote Gostin, who contended that "the ripple effects of West Virginia v. EPA are profound" and could hinder other key federal agencies such as the Centers for Disease Control and Prevention, the Food and Drug Administration, and the Occupational Safety and Health Administration.
"Congress doesn't have a magic crystal ball that can predict every future health hazard," Gostin added. "Nor does Congress have the expertise. That's why Congress has delegated wide powers to health and safety agencies. They have the expertise and flexibility to safeguard the public from major threats."
William Boyd, an environmental law professor at the University of California Los Angeles, agreed with Gostin's analysis, telling Vox that he believes the West Virginia ruling "can be seen as part of a larger trend directed at restricting the ability of EPA and other agencies to protect health, safety, and the environment."
"This starts at the top with the Supreme Court," he noted, "but it will ripple through the federal judiciary as decisions accumulate and the jurisprudence that has taken over the last half-century to accommodate the regulatory state is diminished and hollowed out."
The West Virginia ruling was a long time in the making, the product of coordinated efforts by GOP attorneys general, the fossil fuel industry, and shadowy organizations such as the Federalist Society.
For years, the industry-backed legal group has been building up a pipeline of far-right judges that Republican politicians have dutifully attached to the nation's judiciary, pumping young, often under-qualified, and business-friendly judges into district courts, appeals courts, and the highest court in the land. (All six sitting conservative Supreme Court justices have ties to the Federalist Society.)
Among the organization's donors is Koch Industries, the multinational oil and gas behemoth whose current billionaire leader, Charles Koch, and his late brother David have financed a vast apparatus of think tanks and advocacy organizations that've grown so influential that they frequently write entire laws for GOP legislatures to rubber stamp.
As The Lever's Andrew Perez reported earlier this year, groups linked to the Koch network took a serious interest in the West Virginia case, which was led by a group of Republican attorneys general and major coal companies. The Supreme Court agreed to take up the case last October.
"Koch's Americans for Prosperity Foundation filed an amicus brief in the case arguing that the EPA should not be permitted to 'impose its will on the nation through regulatory diktat,'" Perez observed. "Several more Koch-funded dark money groups have filed similar amicus briefs in the case. That includes the Cato Institute, the New Civil Liberties Alliance, the Competitive Enterprise Institute, and the Mountain States Legal Foundation."
"The New Civil Liberties Alliance also received $1 million from the 85 Fund, a charitable foundation steered by Trump judicial adviser Leonard Leo," Perez added. "A longtime executive at the Federalist Society, a conservative lawyers group, Leo also helps direct the Judicial Crisis Network, a dark money group that spent tens of millions leading the confirmation campaigns for Gorsuch, Kavanaugh, and Barrett."
As Jane Mayer, the award-winning investigative journalist and author of Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right, put it Thursday, the West Virginia decision is "payoff for 40 years of dark money from some of the planet's biggest polluters."
"And we're not done," he added. "My office will continue to fight for the rights of West Virginians when those in Washington try to go too far in asserting broad powers without the people’s support."
Senate Minority Leader Mitch McConnell (R-Ky.), who is hoping to take back the upper chamber's gavel in the upcoming midterms, hailed the majority's opinion and warned "other overeager bureaucrats" to "take notice."
In the decision itself, the court's conservatives defined West Virginia v. EPA as a "major questions case," invoking an obscure and novel legal doctrine that insists federal agencies must have explicit and specific congressional authorization to act on matters deemed politically or economically significant.
"The court embraced the doctrine in a full-blown way, making clear that it views a wide range of agency protections as potential targets for abolition."
As Bloomberg's Noah Feldman explains, "the major questions doctrine appears to take a very large bite out of" the so-called Chevron doctrine, which states that "the courts must defer to agencies' reasonable interpretation of laws passed by Congress."
The implications of the major questions doctrine's emergence as a guiding principle for the court are vast. In her dissent in West Virginia, liberal Justice Elena Kagan observed that "the court has never even used the term 'major questions doctrine' before."
"Let's say the obvious: The stakes here are high," Kagan wrote. "Yet the court today prevents congressionally authorized agency action to curb power plants' carbon dioxide emissions. The court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy. I cannot think of many things more frightening."
Jenny Breen, associate professor at the Syracuse University College of Law, similarly argued in an email to Common Dreams that the court's West Virginia ruling "relies on judicial overreaching to undermine public policy and the legitimacy of government more broadly."
"The majority did not like the agency's approach to regulating power plants," Breen wrote. "But only in this new universe of governance-by-judicial-fiat should any of us care what John Roberts thinks is the best approach to regulating power plants. Congress gave that job to the EPA, not the Supreme Court."
"In taking that decision for itself," Breen added, "the court deals yet another blow to the ability of the United States to democratically govern in the face of severe public policy crises."
While the conservative-dominated court may not have overtly wielded the major questions doctrine against the federal government's regulatory powers in previous cases, Mekela Panditharatne and Martha Kinsella of the Brennan Center for Justice note that it has "obliquely" relied on the doctrine to "strike down the Centers for Disease Control and Prevention's eviction moratorium and block the Occupational Health and Safety Administration's mandate that large employers ensure their workers are vaccinated or frequently tested for Covid-19."
"In Thursday's case, the court embraced the doctrine in a full-blown way, making clear that it views a wide range of agency protections as potential targets for abolition," they warned. "By gutting regulatory agencies' ability to use existing statutory authority to respond to contemporary societal needs, the court places the onus on Congress to amend countless laws to expressly authorize agencies to 'make decisions of vast economic and political significance,' whatever that means."
"The suggestion that Congress just needs to pass more explicit instructions to agencies in order for the government to perform core functions is easier said than done," Panditharatne and a Kinsella added. "For his part, Justice Gorsuch in concurrence, alarmingly, raises the specter that agency action without express congressional authorization could be deemed to violate the Constitution, a position the dissent vehemently rejects."
The institutional obstacles for Congress to step into the void created by the court's ruling are enormous, including but not limited to the Senate's 60-vote legislative filibuster. Corporate-friendly Democrats and the Republican Party—made up of industry-funded lawmakers wedded to mass deregulation—are also sure to stonewall any congressional attempts to make regulatory agencies' statutory authority to fight the climate emergency and other crises more explicit.
The ultimate result, observers fear, could be the sweeping defanging of the federal government that corporate America and the conservative movement have sought for decades.
"These politicians in black robes know full well that, with Mitch McConnell in a leadership position doing the bidding of Koch and the oil and gas industry, this Congress will not pass any substantial climate change mitigation legislation," Lisa Graves, the executive director of True North Research, told The Intercept.
In a series of tweets on Thursday, the Green New Deal Network asked Americans to "imagine a future where the USDA can't regulate what chemicals are in your food."
"Imagine a reality where the FDIC can't protect your money from greedy bankers and investors. And imagine a world where the FDA can't prevent pharmacies from stocking up with literal poisons," the group added. "This is the endgame."
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