When Trump announced that he intended to nominate Representative Matt Gaetz to be his Attorney General, a gasp went up in both political parties.
Gaetz has been a fierce Trump loyalist, which is why Trump chose him. He certainly didn’t choose him because he is an eminent member of the bar, because he has the respect of his peers, or because he is a pillar of integrity. Trump wants someone who is certain not to investigate him and certain to prosecute Trump’s “enemies.” Perhaps Trump thinks he has found his latter-day Roy Cohn, a man who can be counted on to twist the law to justify whatever Trump wants.
Gaetz was just reelected on November 5, yet resigned as soon as Trump announced that he had chosen him to be Attorney General, the very epitome of our justice system.
Candidates for the Cabinet usually wait to see if they are confirmed before resigning. Why did he rush to resign a seat he just won?
The House Ethics Committee was investigating serious charges against him and was about to issue its report. His resignation ends the investigation.
The lawyer representing a woman former Rep. Matt Gaetz allegedly had sex with when she was a minor called on the House Ethics Committee to “immediately” release its report into his alleged conduct.
“Mr. Gaetz’s likely nomination as Attorney General is a perverse development in a truly dark series of events,” attorney John Clune wrote Thursday on X. “We would support the House Ethics Committee immediately releasing their report. She was a high school student and there were witnesses.”
Gaetz has repeatedly denied the allegations. A spokesperson for Gaetz did not immediately respond to a request for comment.
The former congressman was also the subject of a separate federal sex trafficking investigation by the Department of Justice — which he could soon lead — but was ultimately not prosecuted. That probe, started in 2020 during the Trump administration, was focused on whether Gaetz paid women for sex and traveled overseas to attend parties with teenagers under the age of 18.
In May, he was subpoenaed to sit for a deposition in a civil lawsuit brought against the woman with whom he allegedly had sex — who is represented by Clune — by a friend of Gaetz, ABC News reported.
House Ethics Chair Michael Guest (R-Miss.) told reporters Wednesday before Gaetz’s resignation that the probe would end if Gaetz was no longer a member of the House — and reiterated that position on Thursday.
But lawmakers on both sides of the aisle have said they hope to review the report ahead of Gaetz’s Senate confirmation. Senate Judiciary Chair Dick Durbin (D-Ill.) demanded in a statement that the House Ethics Committee share its findings with the Senate Judiciary Community, saying “We cannot allow this valuable information from a bipartisan investigation to be hidden from the American people.”
Karen Tumulty of the Washington Post described the Gaetz nomination as “a middle finger to the Senate.” She hopes it never reaches a vote. Maybe Trump is testing the Senate to see how low they will go to please him.
Gaetz, a Florida Republican, says Trump’s ties to Russia should never have been investigated. He wants “the Biden crime family” to face justice. And he called nonpartisan D.O.J. officials whom he may soon oversee the “deep state.” He has introduced legislation that would limit sentences for people who stormed the Capitol on Jan. 6 and suggested “abolishing every one of the three-letter agencies,” including the F.B.I.
Then-Representative Markwayne Mullin, now a senator, candidly told CNN last year that Gaetz bragged about having sex with young women to other members on the floor of the House of Representatives.
“We had all seen videos … of the girls that he had slept with,” Mullin said. “He’d crush [erectile dysfunction] medicine and chase it with an energy drink so he could go all night.” Mullin, now a Senator, has done a total 180 on this, saying on Wednesday that he “completely” trusts Trump’s decision to nominate Gaetz.
As we head toward the November election, Policy Matters Ohio’s Bailey Williams exposes recent history that has been little reported. In The Great Ohio Tax Shift, Williams explores simply and clearly the data showing that Ohio’s new billion dollar private school tuition voucher expansion is not the only factor that has threatened public school funding. For two decades now, legislators have been cutting taxes and reducing investment in public services, including public schools. And Ohio’s legislature has increased the tax burden on Ohio’s poorest citizens and made life easier for our state’s wealthiest citizens.
Even though Ohioans have watched the legislature toss a tax cut into budget after budget instead of funding needed services, the cumulative effects Baily presents in the new report are astounding:
“Ohio families with the least resources—those making less than $24,000—pay more annual taxes on average today than they did before 2005.
The average household among the top 1 of Ohio earners, with incomes above $647,000, now contribute over $52,000 per year less than they once did.
The result is a loss of about $12.8 billion a year in revenue….
Ohioans of color are significantly more likely to pay a higher share of their incomes in taxes… while white Ohioans are more likely to have benefited….
71% of the total value of personal income tax cuts has gone to the richest 20% of households….
Changes to sales taxes, excise taxes, and business taxes have, on average, increased taxes for the bottom 99% of Ohio’s households.
Changes to sales taxes, excise taxes, and business taxes have, on average, allowed the richest 1% of Ohio tax filers to pay nearly $600 per year less than they did before 2005.”
Bailey reminds us why we pay taxes and explains what has been sacrificed in Ohio: “Through the state tax system, Ohio can ensure every child gets a world-class education, every community is vibrant and healthy, and every Ohioan, of every race and gender, has a secure economic foundation on which to build our futures. But for a generation, lawmakers have instead used tax policy to create loopholes for the wealthy and influential, and provide special treatment for powerful corporations… The politicians who write state tax policy often justify their decisions with promises that when billionaires’ pockets overflow with profits, the benefits will trickle down to working families. Year after year—now decade after decade—the consequences have been clear: The people with the lowest incomes are paying a little more, the wealthy are paying much less, and Ohio has too few resources to serve its purpose: creating a state where everyone has what they need to live a good life.”
Ohio’s legislature has reduced progressive taxation as it has reduced dependence on income taxes and increased regressive sales, excise and business taxes: “Ohio policymakers have made significant changes to personal income taxes over the two decades, lowering rates and making our tax structure more regressive. Since 2005, almost every biennial budget passed by the Ohio state general assembly has included some form of reduction to the personal income tax, generally through broad tax rate cuts and elimination of top tax brackets. Some changes have benefited low-paid Ohioans: Increasing the threshold at which households begin to pay taxes means households with income below $26,050 don’t pay state income tax…. The creation of a 30% Earned Income Tax Credit has helped low-paid Ohioans.” However, “Other regressive changes in the tax code have completely erased the meager benefits of income tax cuts for the lowest-paid Ohioans. In fact, the lowest-income 20% now pay more on average in taxes than they did before the legislature began its tax cutting spree in 2005. Sales, excise, and business taxes now cost that group more each year on average—more than cancelling out the annual average $122 in income tax cuts this group benefits from….”
Most Ohioans are not prepared to gather and analyze this kind of technical information. Thanks to Bailey Williams and Policy Matters Ohio for this technical analysis. We have spent this year learning about the fiscal implications of the Legislature’s voucher expansion in the current biennial budget; now we are better prepared to understand why, in addition to perpetual voucher expansion, it has been such a struggle to press the Legislature to enact Ohio’s new public school funding formula, the Fair School Funding Plan, to rectify years of inadequate and inequitably distributed public school funding. Legislators have insisted on a slow, three-budget phase-in of the new formula and even now have been unwilling to commit to completing the full launch of the new plan in the budget they will begin negotiating in January. Many of us have realized that the Fair School Funding Plan’s delayed rollout has derived from perennial tax cutting in addition to the enactment of what’s turning out to be an annual billion dollar voucher explosion. Williams’ analysis, released last week, provides information essential to our grasping the complex fiscal realities that will be part of the upcoming state budget debate.
Please open the link to get the full picture of the tax-cutting that has helped the richest Ohioans, hurt the poorest, and undermined public services.
Mercedes Schneider is a high school teacher in Louisiana who holds a doctorate in statistics and research methodology. It’s no secret that she is also a devout Christian who takes her faith seriously, so seriously that she doesn’t try to impose it on anyone else. As a veteran teacher, she writes with authority and keen intellect about education.
Project 2025 identifies itself as “The Presidential Transition Project,” further described as “an agenda prepared by and for conservatives who will be ready on Day One of the next Administration to save our country”:
The Heritage Foundation is once again facilitating this work, but as our dozens of partners and hundreds of authors will attest, this book is the work of the entire conservative movement.
The next conservative President will enter office on January 20, 2025, with a simple choice: greatness or failure. It will be a daunting test, but no more so than every other generation of Americans has faced and passed. The Conservative Promise represents the best effort of the conservative movement in 2023—and the next conservative President’s last opportunity to save our republic.
THE MORE PEOPLE learn about it, the more unpopular and politically toxic Project 2025 has proven to be. This has led the Trump and Vance campaign to attempt to distance itself from the effort. Former Trump adviser Stephen Miller now says he had “zero involvement with Project 2025,” despite appearing in a promotional video. And just today, The Intercept discovered two more conservative groups that have quietly bowed out from the controversial 900-page manifesto — including a national anti-abortion organization.
Miller’s group, America First Legal Foundation, was one of the first organizations to jump ship from the Project 2025 advisory board. Last week, America First Legal asked to be removed from the Project 2025 advisory board webpage. The organization was part of Project 2025 since at least June 2022, when the Heritage Foundation first announced the advisory board’s formation.
America First Legal staff were deeply involved in writing and editing the Project 2025 playbook. Its vice president and general counsel, Gene Hamilton, drafted an entire chapter about the Justice Department, which proposes launching a “campaign” to criminalize mailing abortion pills. In a footnote, Hamilton thanked “the staff at America First Legal Foundation,” who he wrote deserved “special mention for their assistance while juggling other responsibilities.” …
America First Legal did not respond to questions about why it asked to be removed from the Project 2025 advisory board despite its prior participation.
As of Tuesday afternoon, Americans United for Life, an anti-abortion group, and the Mackinac Center for Public Policy, a Michigan think tank, were among the more than 100 groups listed on the Project 2025 website as part of its advisory board. By Wednesday, Americans United for Life and the Mackinac Center had vanished.
Both organizations were relatively recent additions to the Project 2025 coalition. The Heritage Foundation announced they had joined in February 2024, several months after the massive playbook was released.
Neither organization would elaborate as to why it had joined the Project 2025 board in the first place or why it was exiting it now.
Seems like far-right conservatives have a history of not really wanting the public aware of those conservative plans and schemes.
It should come as no surprise that ALEC is a Project 2025 advisory board member:
Project 2025 is the conservative, American white Evangelical Christian plan for operating government. Below is a “note” from Heritage Foundation’s Project 2025 director, Paul Dans:
Let me offer some excerpts. Not many, for it does not take much reading to realize that the Project 2025 overarching goal is to force all of America into a white Evangelical Christian mold.
A smidge from Heritage Foundation president, Kevin Roberts’, foreword:
PROMISE #1: RESTORE THE FAMILY AS THE CENTERPIECE OF AMERICAN LIFE AND PROTECT OUR CHILDREN. The next conservative President must get to work pursuing the true priority of politics-the well-being of the American family. In many ways, the entire point of centralizing political power is to subvert the family. Its purpose is to replace people’s natural loves and loyalties with unnatu- ral ones. You see this in the popular left-wing aphorism, “Government is simply the name we give to the things we choose to do together.” But in real life, most of the things people “do together” have nothing to do with government. These are the mediating institutions that serve as the building blocks of any healthy society. Marriage. Family. Work. Church. School. Volunteering. The name real people give to the things we do together is community, not government. Our lives are full of interwoven, overlapping communities, and our individual and collective happiness depends upon them. But the most important community in each of our lives-and the life of the nation— is the family. Today, the American family is in crisis. Forty percent of all children are born to unmarried mothers, including more than 70 percent of black children. There is no government program that can replace the hole in a child’s soul cut out by the absence of a father. Fatherlessness is one of the principal sources of Ameri- can poverty, crime, mental illness, teen suicide, substance abuse, rejection of the church, and high school dropouts. So many of the problems government programs are designed to solve-but can’t-are ultimately problems created by the crisis of marriage and the family. The world has never seen a thriving, healthy, free, and prosperous society where most children grow up without their married parents. If current trends continue, we are heading toward social implosion. Furthermore, the next conservative President must understand that using gov- ernment alone to respond to symptoms of the family crisis is a dead end. Federal power must instead be wielded to reverse the crisis and rescue America’s kids from familial breakdown. The Conservative Promise includes dozens of specific policies to accomplish this existential task. Some are obvious and long-standing goals like eliminating marriage penalties in federal welfare programs and the tax code and installing work requirements for food stamps. But we must go further. It’s time for policymakers to elevate family authority, formation, and cohesion as their top priority and even use government power, including through the tax code, to restore the American family. Today the Left is threatening the tax-exempt status of churches and charities that reject woke progressivism. They will soon turn to Christian schools and clubs with the same totalitarian intent. The next conservative President must make the institutions of American civil society hard targets for woke culture warriors. This starts with deleting the terms sexual orientation and gender identity (“SOGI”), diversity, equity, and inclusion (“DEI”), gender, gender equality, gender equity, gender awareness, gender-sensi- tive, abortion, reproductive health, reproductive rights, and any other term used to deprive Americans of their First Amendment rights out of every federal rule, agency regulation, contract, grant, regulation, and piece of legislation that exists. Pornography, manifested today in the omnipresent propagation of transgender ideology and sexualization of children, for instance, is not a political Gordian knot inextricably binding up disparate claims about free speech, property rights, sexual liberation, and child welfare. It has no claim to First Amendment protection. Its purveyors are child predators and misogynistic exploiters of women. Their product is as addictive as any illicit drug and as psychologically destructive as any crime. Pornography should be outlawed. The people who produce and distribute it should be imprisoned. Educators and public librarians who purvey it should be classed as registered sex offenders. And telecommunications and technology firms that facilitate its spread should be shuttered. In our schools, the question of parental authority over their children’s education is a simple one: Schools serve parents, not the other way around. That is, of course, the best argument for universal school choice-a goal all conservatives and con- servative Presidents must pursue. But even before we achieve that long-term goal, parents’ rights as their children’s primary educators should be non-negotiable in American schools. States, cities and counties, school boards, union bosses, principals, and teachers who disagree should be immediately cut off from federal funds. The noxious tenets of “critical race theory” and “gender ideology” should be excised from curricula in every public school in the country. These theories poison our children, who are being taught on the one hand to affirm that the color of their skin fundamentally determines their identity and even their moral status while on the other they are taught to deny the very creatureliness that inheres in being human and consists in accepting the givenness of our nature as men or women.
Schneider continues:
Free the churches, imprison the librarians.
Roberts was in the news for stating that an “ongoing American Revolution” will “remain bloodless if the left allows it to be.” According to The Hill, that comment caused “blowback” for Roberts and the Heritage Foundation.
None of Jesus’ ministry involved any political agenda, much less the government-driven denigration of “other” or the imposing of His will on any human being.
Thom Hartmann explains here the importance of one of the U.S. Supreme Court’s recent cases, in which the extremist majority overturned what is known as “the Chevron Deference.” When I first read about this decision, it sounded bad—it basically strips federal agencies of their regulatory powers—but I didn’t realize how bad this decision was the future of the nation until I read Hartmann’s article. He summarized the decision in this way: “The billionaires and polluters who bribed SCOTUS Republicans just legalized poisoning our children and grandchildren.”
In 1904, O. Henry coined the phrase “banana republic” to describe a country where the government supports big business for the exclusive benefit of the morbidly rich. A government of, by, and for what that generation called the “fatcats” or the “robber barons.”
The banana republic-ication of America just kicked into high gear, and, curiously, there’s been a virtual mainstream media blackout about it.
Here’s how it’s happening.
When Steve Bannon was in the Trump White House, he declared one of their goals was to “deconstruct the administrative state.” That same type of language also appears in Project 2025.
Now, fewer than two weeks ago, the six Republicans on the Supreme Court began that process by kneecapping the ability of regulatory agencies to protect the American people from out-of-control polluters, rip-off banks and insurance companies, Big Pharma, and hundreds of other industries and massive corporations that put profits above humans.
They did it by blowing up the Chevron Deference. It’s part of their long-term commitment to turning America into a billionaire- and corporate-run banana republic with an autocrat as president.
The case of Loper Bright Enterprises v. Raimondo ends the power of most regulatory agencies that are so hated by America’s most exploitative industries and the rightwing billionaires they’ve made.
As Senators Whitehouse, Hirono, Feinstein, and Warren noted:
“This case is the product of a decades-long effort by pro-corporate interests to eviscerate the federal government’s regulatory apparatus, to the detriment of the American people.”
So, how did the Supreme Court put the EPA and other regulatory agencies functionally out of business?
It has to do with something called the Chevron deference, a policy established by the Court decades ago to protect just such agencies.
Here’s how regulatory law — using the example of the EPA — is supposed to work (in super-simplified form):
1. Congress passes a law that says, for example, that the Environmental Protection Agency should limit the damage that pollutants in the environment cause to the planet. Congress (the Constitution’s Article I branch of government) defines the broad goal of the legislation, but the Executive Branch (Article II, which encompasses the EPA and other regulatory agencies) has the responsibility to carry it out.
2. The EPA, part of that Executive Branch and answering both to the law and the President, then convenes panels of experts. They spend a year or more doing an exhaustive, deep dive into the science, coming up with dozens or even hundreds of suggestions to limit airborne pollutants, ranging from rules on how much emission cars can expel to drilling and refining processes that may leak or pour poisons into our atmosphere, waters, etc.
3. The experts’ suggestions are then run past a panel of rule-making bureaucrats and hired-gun rule-making experts for the EPA to decide what the standards should be. They take into consideration the current abilities of industry and the costs versus the benefits of various rules, among other things.
4. After they’ve come up with those tentative regulations, they submit them for public review and hearings. When that process is done and a consensus is achieved, they make them into official EPA rules, publish them, enforce them, and the deadly emissions begin to drop.
This is how it worked, for example, with regard to CO2 until June of last year, a process that simply comports with common sense, as the Supreme Court ruled in 1984 when they established the Chevron deference to legitimize and defend our regulatory agencies.
Functionally, this process dates back to 1887, when Congress established America’s first regulatory agency — the Interstate Commerce Commission — to prevent railroads from ripping off shippers and passengers.
It was nailed into law and doctrine with the Chevron deference, articulated by the Supreme Court in 1984, reflecting a century-and-a-half of the will of Congress and presidents of both parties who signed regulatory agencies into existence. It says that once a regulatory agency does its due diligence and determines reasonable rules for a substance or behavior, they then have the legal authority to regulate and the courts should “defer” to the agency (thus the “deference” in the doctrine that emerged from the ruling when Chevron tried to negate an EPA ruling in 1984).
Congress passes laws that empower regulatory agencies to solve problems, the agencies figure out how to do that and put the rules into place, and the solutions get enforced by the agencies. And when somebody sues to overturn the rules, if the courts determine they were arrived at through a reasonable process without corruption, those rules stand.
Then came a group of rightwing Supreme Court justices — including Neil Gorsuch (the son of Reagan’s EPA Administrator, Anne Gorsuch, who resigned in disgrace after trying to destroy the agency — who overturned rules made by the EPA about CO2 emissions from power plants in their June, 2022 West Virginia v EPA decision, taking the first big bite out of the Chevron deference.
Their rationale was that because the legislation that created the EPA doesn’t specifically mention “regulating CO2” but instead let the EPA itself determine what pollutants are dangerous to America and the planet, the agency lacks that power to regulate CO2. And now it has lost that power, the result of that West Virginia v EPA decision two years ago.
The coal, oil, and natural gas industries have been popping champagne corks for two years now, as CO2 levels continue to increase along with the temperature of our planet and the violence of our weather.
In addition to Gorsuch, the Court’s decision-makers in West Virginia v EPA included Amy Coney Barrett whose father was a lawyer for Shell Oil for decades, and John Roberts, Samuel Alito, and Brett Kavanaugh who are all on the Court in part because of support from a network funded by fossil fuel billionaires and their industry (among others) that brought that case and then brought this year’s Loper v Raimondo.
And, of course, there’s Clarence “on the take” Thomas, who supported the Chevron deference 15 years ago but, since being wined and dined by rightwing billionaires, in 2020 wrote:
“Chevron compels judges to abdicate the judicial power without constitutional sanction. … Chevron also gives federal agencies unconstitutional power.”
Giving us a clue to how this went down, all six Republicans on the Court voted to gut the EPA’s ability to regulate CO2 in West Virginia; all 3 Democratic appointees opposed the decision.
“[D]oes not have a clue about how to address climate change…yet it appoints itself, instead of congress or the expert agency…the decision-maker on climate policy. I cannot think of many things more frightening.”
Their ruling was, essentially, that all of that research into the specifics of anticipated regulations — all those hundreds of scientists, millions of public comments, and hundreds of thousands of science-hours invested in understanding problems and coming up with workable solutions — must now be done by Congress and the courts rather than administrative regulatory agencies.
As if Congress and the courts had the time and staff.
As if they was stocked with scientific experts, a much larger budget, and had millions of hours a year for hearings.
As if Republicans in the pockets of fossil fuel billionaires wouldn’t block any congressional action — or those billionaires wouldn’t lavish more gifts on Thomas, Roberts, Alito, Gorsuch, Barrett, and Kavanaugh even if it did.
Republicans on the Supreme Court succeeded in dancing to the tune of the billionaire’s fossil fuel network in the West Virginia v EPA case, but it was narrowly focused on CO2.
In the Loper v Raimondo case, however, the Court explicitly expanded that victory by blowing the entire Chevron deference out of the water, thus ending or severely limiting most protective government regulations in America and opening the door to court challenges to every decision by every regulatory agency established since the last decades of the 19th century.
They’re saying, essentially, that the EPA (and any other regulatory agency) can’t do all the steps listed above: instead, that detailed and time-consuming analysis of a problem, developing specific solutions, and writing specific rules has to be done, they say, by Congress or the courts themselves.
A Congress where arcane rules and gerrymandering have given Republicans the ability to block pretty much any legislation their billionaire patrons pay them to block. And courts filled with lawyers who never set foot in a science classroom.
So now, starting just hours after the Loper Bright ruling, those industries and companies that have chafed under rules and regulations protecting us are on the march. They hope to rule the new banana republic the GOP envisions for us.
So far in the past two weeks, federal courts have stripped over 4 million Texas workers (and soon to be all Americans) of Department of Labor rules requiring overtime payments. It happened hours after the SCOTUS ruling, specifically referencing that ruling.
In Kansas on July 2nd, a federal judge ruled that Title IX “gender identity” non-discrimination protections promulgated by the Department of Education no longer apply to queer students, with the judge specifically citing and quotingLoper Bright:
“The Supreme Court recently held that [this] court ‘need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.’ Loper Bright Enter. v. Raimondo. [This] court must exercise its ‘independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.’”
It’s been fewer than two weeks since the Court accomplished what Trump and Project 2025 publicly aspired to, but the floodgates have opened.
Dozens of other challenges to protective regulations are already in the works, including, but not limited to:
“[R]egulation by the Food and Drug Administration (FDA), healthcare and product reimbursement, white collar enforcement and investigations, intellectual property, Federal Trade Commission and antitrust enforcement, international trade and national security regulation, public company disclosures, environmental regulation, government contracting, business transactions, and litigation….”
Thousands more will soon clog the federal courts (including the legal status of mifepristone and birth control). The six Republicans on the Supreme Court have unleashed a legal tsunami that, if not reversed by Congress or through expanding the Court, threatens to take Americans back to 1876, when morbidly rich robber barons, landlords, and employers could rip off and poison Americans with impunity.
It’s past time to stand up and speak out, and Dick Durbin’s Senate Judiciary Committee is the logical place to start with subpoeas to bare this Court’s naked corruption. If you agree, you can find Durbin’s phone numbers and addresses here and a list of the Committee’s members here.
And, of course, we must vote a straight Democratic ticket this November.
Every day that goes by without these corrupt judges being held to account by the Senate is another day closer to the end of the functional “government of the people, by the people, [and] for the people,” and our final transition into a genuine, and perhaps irreversible, banana republic.
On Monday, Judge Aileen “Loose” Cannon issued a mind-exploding ruling dismissing the espionage and obstruction case against Donald Trump. Her reason? The appointment of the Special Counsel was not legally authorized.
Let me first say this. Her ruling flies in the face of every legal precedent. No less than eight courts have weighed in on this question before and found to the contrary. Yet somehow Judge Cannon has defied all that legal weight and ruled against the U.S. government.
The timing of the ruling is also very suspect. Judge Cannon has been sitting on the motion to dismiss for 144 days. Yet she issued her ruling on the first day of the Republican National Convention? This smells like legal mischief. She is raising her hand for a quid pro quo appointment to a higher bench during a possible second Trump administration.
In today’s piece, I’ll walk through why Judge Cannon’s ruling is far outside of anything we have ever seen on this question. But while precedent would dictate that she should be reversed by the 11th Circuit, she could theoretically still prevail, setting up a split in the circuits for the Supreme Court to decide. And the current High Court has shown it doesn’t give a damn about decades of precedent. Indeed, that is Cannon’s likely gambit, and it is a dangerous one.
But if she loses, as is likely, she could also pay a heavy consequence: a reassignment of the case to another judge because of her clear bias for Trump.
Why she’s wrong
The language of both the Constitution and the authorizing legislation make clear that the Special Counsel is something the Executive Branch, via its Justice Department, may appoint.
Jack Smith argued that Congress vested the appointment of “inferior Officers” like the Special Counsel in 28 U.S.C. § 533(4), in which Congress authorized the Attorney General to appoint officials “to conduct such other investigations regarding official matters under the control of the Department of Justice…as may be directed by the Attorney General.”
Pretty damn clear if you ask me.
Before jumping into the legal arguments, it’s important to recognize how long and time-honored the tradition is of appointing Special Counsel to handle politically sensitive matters. President Ulysses S. Grant appointed one some 150 years ago in 1875 during the Whiskey Ring scandal, where distillers bribed Treasury officials to increase profits and evade taxes.
In the 1920s, there was a Special Counsel for the Teapot Dome scandal, where Secretary of the Interior Albert Bacon Fall became the first cabinet member ever sent to prison after he accepted bribes in exchange for petroleum leases.
The question of the Special Prosecutor’s authority in the Watergate investigation was first broached by the Supreme Court in U.S. v. Nixon. (Special Counsel was previously termed “Special Prosecutor.”) In that case, the Supreme Court unanimously signed off on the Special Prosecutor’s authority to issue a subpoena to Nixon for tapes of conversations.
Yet Judge Cannon, in her infinite wisdom, decided that U.S. v. Nixon was mere “dictum,” meaning reasoning not essential to the decision before her. She wrote that because Nixon never actually contested the Special Prosecutor’s validity, the question was not squarely before the Supreme Court.
Come on, Aileen.
It’s clear that the Supreme Court at least approved of the Special Counsel’s very existence. Otherwise, why even consider whether he could legally subpoena the President? Nixon didn’t challenge the very existence of the Special Counsel because it’s crystal clear that the Special Counsel was legally authorized, and no one on Nixon’s team even presumed to challenge the validity of the appointment.
Judge Cannon also ignored another Supreme Court precedent from 1988, Morrison v. Olson, which upheld a law called the Independent Counsel Act. Prosecutors have cited that decision over the decades to consistently argue that special counsels did not violate the separation of powers. Cannon rejected this argument, however, ruling that the statute it upheld had lapsed.
But Garland had cited four other statutes enacted by Congress—including the one discussed at the top of this section—that broadly authorized him to make Smith’s appointment. Yet Judge Cannon believes she somehow knows better than Congress about how to go about actually authorizing the appointment by statute.
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Heather Cox Richardson wrote today about two concurrent stories: on one hand, Democrats are locked in an internecine battle about their candidate; on the other, the Trump-dominated Supreme Court is shredding the balance of powers and crippling the administrative authority of the federal government.
She writes:
In this morning’s Talking Points Memo, David Kurtz observed that “much of political journalism is divorced from policy and the substance of politics.” It’s all about a horse race, he wrote, while complex questions, competing public interests, and the history of an issue get distilled to “whether it’s good or bad politically.”
Today, he noted, that horse-race coverage means that “[a]n election about whether the United States will continue its two and half century long experiment in representative democracy, where a convicted felon is running to return to the office he tried to seize through extralegal means, where the specter of a new form of fascism looms on the horizon is suddenly consumed by a political death watch for the only person at present standing between democracy and another Trump term in the White House.”
Yesterday, President Joe Biden tried to quell that political death watch by sending a letter to congressional Democrats stating that “despite all the speculation in the press and elsewhere, I am firmly committed to staying in this race, to running this race to the end, and to beating Donald Trump.” He noted that 14 million voters in the Democratic primary chose him, rather than a challenger, adding, “It was their decision to make. Not the press, not the pundits, not the big donors, not any selected group of individuals, no matter how well intentioned…. How can we stand for democracy in our nation if we ignore it in our own party?”
In an apparent attempt to get beyond the horse-race politics Kurtz identified and to make clear the substance of this election, Biden explained: “We have an historic record of success to run on.” He cited his administration’s creation of more than 15 million jobs, leading to historic unemployment lows; revitalization of American manufacturing; expansion of affordable health care; rebuilding the country’s infrastructure; lowering the cost of prescription drugs; providing student debt relief; and making a historic investment in combating climate change.
That vision, Biden wrote, “soundly beats” that of Trump and the MAGA Republicans, who are “siding with the wealthy and big corporations,” while the Democrats are “siding with the working people of America.” Trump and his people want another $5 trillion in tax cuts for the rich, he noted, and they plan to cut Social Security and Medicare, as well as end the ability of the government to negotiate with pharmaceutical companies to bring drug prices into line with prices in other countries. “We are the ones lowering costs for families,” he wrote, “from health care to prescription drugs to student debt to housing. We are the ones protecting Social Security and Medicare. Everything they’re proposing raises costs for most Americans—except their tax cuts which will go to the rich.”
He went on to note that the Democrats are “protecting the freedoms of Americans,” while Trump’s people are “taking them away.” He pointed to the right-wing attacks on abortion rights, IVF, contraception, and gay marriage. Biden reiterated that he will sign a law making Roe v. Wade the law of the land if the nation elects a Democratic House and Senate. Finally, he pointed out that Democrats are protecting the rule of law and democracy, while Trump is actively working to destroy both. Trump, he wrote, has proven himself “unfit ever to hold the office of President.” “My fellow Democrats,” Biden wrote, “we have the record, the vision, and the fundamental commitment to America’s freedoms and our Democracy to win.”
Hours later, the New York Times joined the tabloid New York Post in noting that visitor logs showed that Dr. Kevin Cannard, an expert on Parkinson’s disease, visited the White House eight times between July 2023 and March 2024. After pressing White House press secretary Karine Jean-Pierre for information beyond her statements that Biden is not being, and has not been, treated for Parkinson’s and that he sees a neurologist as part of his annual physical exams, a CBS News White House reporter accused Jean-Pierre of deliberately withholding information. Jean-Pierre pointed out that “personal attacks” are not appropriate from the press corps and that the press team does its best to give the information they have. She said she took offense at the reporter’s tone.
Last night, White House physician Dr. Kevin O’Connor sent to Jean-Pierre a letter clarifying that the White House Medical Unit serves thousands of patients, many of whom are military personnel with neurological issues related to their service. Cannard was one of the team of specialists that annually examine the president. O’Connor’s office released the results of that examination in a letter dated February 28, he pointed out. It said, “An extremely detailed neurologic exam was again reassuring in that there were no findings which would be consistent with any cerebellar or other central neurological disorder, such as stroke, multiple sclerosis, Parkinson’s or ascending lateral sclerosis, nor are there any signs of cervical myelopathy.” The president does have “peripheral neuropathy in both feet. No motor weakness was detected. He exhibits no tremor, either at rest or with activity.”
As media attention remains focused on Biden, a Supreme Court decision from last week that upends the modern American state and another that overturns the central concept of our democracy have disappeared from public discussion. In Loper Bright Enterprises v. Raimondo, the court overruled the longstanding legal precedent establishing that courts should defer to a government agency’s reasonable interpretation of a law. Instead, it said, judges themselves will decide on the legality of an agency’s actions.
In Public Notice, Lisa Needham noted that right-wing judges have already blocked Biden administration rules that protect overtime pay for workers, prohibit noncompete clauses for truckers, and prohibit discrimination based on gender identity. As right-wing plaintiffs launch suits challenging rules they dislike, she notes, we should expect to see many more federal judges “deploying junk science and personal opinions to get to their preferred conclusion while ignoring the expertise of agency employees.”
Loper Bright was a slashing blow at the federal regulations that make up the framework of today’s government, but it paled in comparison to the Supreme Court’s decision in Donald J. Trump v. United States. In that stunning decision, the six right-wing justices—three of whom Trump himself appointed—declared that a president is immune from prosecution for crimes committed as part of his “official duties.”
This astonishing decision overturned the bedrock principle of the United States of America: that no one is above the law. But to be clear, the court did not give this power to Biden. Because it is not clear what official acts are—since no one has ever before made this distinction—it claimed for itself the right to decide what illegal behaviors are official acts and which are not. Since at least one of the justices (Samuel Alito) has flown flags demonstrating support for overthrowing Biden’s government and putting Trump back into office, and the wife of another (Clarence Thomas) worked with those trying to overturn the results of the 2020 presidential election, it seems likely that their decisions will reinforce Trump’s immunity alone.
An extraordinary effort to use the courts to set up a Trump dictatorship appears largely to have been hidden under the horse race.
And now that this scaffolding is in place, Trump’s team has begun to try to make him look more moderate than he is. On July 5, Trump claimed not to know anything about the extremist Project 2025, which calls for an authoritarian leader to impose Christian nationalism on the United States, despite the fact that his own appointees wrote it, his own political action committee advertised it as his plan, and his name appears in it 312 times.
Agenda 47, the official Trump campaign website, has offered more information about how he will wield the absolute power he now claims. As Judd Legum pointed out today in Popular Information, a key author of Project 2025, Christian nationalist Russell Vought, has advanced a plan for killing any aspects of government his people dislike, and Trump has adopted that plan, vowing to cancel agencies or laws he dislikes by refusing to spend money Congress appropriates. This is known as “impoundment,” and Congress made it illegal in 1974 after President Richard Nixon used it to try to bend the government to his will. Trump says the 1974 Impoundment Control Act is unconstitutional because it interferes with the power of the presidency. He promised to use it to “crush the Deep State.” First on the chopping block will be the Department of Education.
The effort to make Trump sound more moderate continued yesterday, when the Republican National Committee released the party’s 2024 platform, in which it tried to fudge the issue of abortion while leaving language that supported a national abortion ban. The New York Timespublished an article reinforcing the idea that Trump is moderating, reporting: “Following Trump’s Lead, Republicans Adopt Platform That Softens Stance on Abortion.”
In the midst of this political coverage, a key story has been largely overlooked. Not only does the stock market continue to set record highs, but also, as Jim Tankersley of the New York Timesreported, the so-called left-behind counties, distressed after the collapse of manufacturing in them, have “added jobs and new businesses at their fastest pace since Bill Clinton was president.” “That turnaround,” he notes, “has shocked experts.” More than 1,000 counties, mostly in the Southeast and Midwest, that grew at less than half the national rate in terms of both people and income from 2000 to 2016, have surged. From 2016 to 2019—mostly during Trump’s administration—those rural left-behind counties, which make up about 18% of the U.S. population, added 10,000 jobs. In 2023 alone, they added 104,000.
Tankersley notes that Trump overwhelmingly won the support of voters in these counties, but their circumstances did not improve during his administration. Under Biden, they added jobs five times faster than they did under Trump. Still, voters there appear to continue to back Trump.
Now that’s a story. Are they backing Trump because they care more about culture wars than their economic security? Or are they ill informed?
Meanwhile, Republicans in the House today passed the Refrigerator Freedom Act and the Stop Unaffordable Dishwasher Standards (SUDS) Act, prohibiting the Secretary of Energy from prescribing or enforcing energy efficiency standards for residential refrigerators, freezers, and dishwashers.
After noting that the average monthly cost of operating a dishwasher is two to four dollars, and establishing that the people pushing this measure had no idea how much a dishwasher costs, Representative Katie Porter (D-CA) said: “This bill… Congress at its worst. A bunch of people who haven’t unloaded a dishwasher ever telling the American people what dishwashers they should or should not have.”
The Orlando Sentinel reported that Florida has rejected $259 million in federal funds to feed hungry children. The reasons of the DeSantis administration: we don’t need the money, and besides, it would cost $22 million to administer the program.
TALLAHASSEE– State officials said they passed up millions of dollars in new federal food assistance money because they have more than enough programs to feed Florida’s hungry children this summer.
But advocates for the hungry say the numbers tell a different story.
“The perception put forward by the state is that there is no need for other programs in the state,” said Sky Beard, the Florida director for the non-profit No Kid Hungry organization. “I wish it were true!”
While it’s too late for Florida to change course in time to affect kids this summer, 185 groups that seek to end hunger recently sent a letter to Gov. Ron DeSantis and other state leaders urging Florida to apply for the money by the Aug. 15 deadline for 2025.
“Every summer is a hungry time for kids.” Beard said.
One in five children in Florida are experiencing hunger because their families cannot afford enough groceries to make up for the free meals they got at school during the academic year, according to a recent report by Feeding America, a nationwide network of food banks, pantries and community organizations dedicated to ending hunger.
Fewer than 10% of the 672,324 elementary school children in Florida who get free or reduced-price lunches during the school year receive a summer lunch, says a report by the Food Research and Action Center, a nonprofit organization working to end poverty-related hunger.
Jamelle Bouie is an opinion writer for The New York Times. He writes with exceptional insight and clarity. In this column, he explains the radical, unprecedented nature of the Supreme Court’s decision on presidential immunity. The majority claims to be “originalists,” paying strict attention to the meaning of the words of those who wrote the Constitution, but this decision clearly demonstrates their complete indifference to the original intent of the Framers of the Constitution. The Framers created a strong balance of power among the three branches of the Federal Government; this Court negates those checks and balances.
With this ruling,Trump vs. US, the six member majority of the Supreme Court has shown that they are rank partisans. Their overriding objective was to protect Trump, first, by dragging out their decision as long as possible; second, by remanding the case to a District Court, where it may require months of hearings and appeals to determine which acts are official and which are not; and third, by affirming Trump’s once-absurd claim that the President can do whatever he wants and it’s not illegal.
The Roberts Court is a disgrace.
Jamelle Bouie writes:
In 1977, nearly three years after leaving office in disgrace, President Richard Nixon gave a series of interviews to David Frost, a British journalist. Of their hourslong conversations, only one part would enter history.
“When the president does it,” Nixon told Frost, defending the conduct that ended his presidency, “that means that it is not illegal.” He went on to add that if “the president approves an action because of the national security — or in this case because of a threat to internal peace and order of significant magnitude — then the president’s decision in that instance is one that enables those who carry it out to carry it out without violating a law.” Otherwise, Nixon concluded, “they’re in an impossible position.”
Yesterday, in a 6-3 decision along partisan lines, the Supreme Court affirmed Nixon’s bold assertion of presidential immunity. Ruling on the federal prosecution of Donald Trump for his role in the effort to overturn the results of the 2020 presidential election, Chief Justice John Roberts explained that the president has “absolute immunity” for “official acts” when those acts relate to the core powers of the office.
“We conclude that under our constitutional structure of separated powers, the nature of presidential power requires that a former president have some immunity from criminal prosecution for official acts during his tenure in office,” Roberts writes. “At least with respect to the president’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity.”
The majority divides official conduct from “unofficial conduct,” which is still liable for prosecution. But it doesn’t define the scope of “unofficial conduct” and places strict limits on how courts and prosecutors might try to prove the illegality of a president’s unofficial acts. “In dividing official from unofficial conduct, courts may not inquire into the president’s motives,” Roberts writes. “Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protest.” In other words, the why of a president’s actions cannot be held as evidence against him, even if they’re plainly illegitimate.
Roberts tries to apply this new, seemingly extra-constitutional standard to the facts of the case against the former president. He says that the president “has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute, including with respect to allegations of election crime” and may “discuss potential investigations and prosecutions” with Justice Department officials, effectively neutering the idea of independent federal law enforcement. Turning to Trump’s attempt to pressure Mike Pence into delaying certification of the Electoral College, Roberts says that this too was an official act.
Having made this distinction between “official” and “unofficial” conduct, Roberts remands the case back to a Federal District Court so that it can re-examine the facts and decide whether any conduct described in the indictment against Trump is prosecutable.
The upshot of this decision is that it will delay the former president’s trial past the election. And if Trump wins he can quash the case, rendering it moot. The conservative majority on the Supreme Court has, in other words, successfully kept the American people from learning in a court of law the truth of Trump’s involvement on Jan. 6.
But more troubling than the court’s interference in the democratic process are the disturbing implications of the majority’s decision, which undermines the foundations of republican government at the same time that it purports to be a strike in defense of the constitutional order.
Presidential immunity from criminal prosecution does not exist in the Constitution, Justice Sonia Sotomayor observes in her dissent. The historical evidence, she writes, “cuts decisively against it.” By definition, the president was bound by law. He was, first and foremost, not a king. He was a servant of the public, and like any other servant, the framers believed he was subject to criminal prosecution if he broke the law.
And while the majority might say here that the president is still subject to criminal prosecution for “unofficial acts,” Sotomayor aptly notes that the chief justice has created a standard that effectively renders nearly every act official if it can be tied in some way, however tenuously, to the president’s core powers.
If the president takes official action whenever he acts in ways that are “not manifestly or palpably beyond his authority” and if “in dividing official from unofficial conduct, courts may not inquire into the president’s motives,” then, Sotomayor writes, “Under that rule, any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune.”
A president who sells cabinet positions to the highest bidder is immune. A president who directs his I.R.S. to harass and investigate his political rivals is immune. A president who gives his military illegal orders to suppress protesters is immune.
These examples only scratch the surface of allowable conduct under the majority’s decision. “The court,” Sotomayor writes, “effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding.” When he uses his official powers in any way, she continues, “he now will be insulated from criminal prosecution. Orders the Navy’s SEAL team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune.”
The bottom line, Sotomayor concludes, is that “the relationship between the president and the people he serves has shifted irrevocably. In every use of official power, the president is now a king above the law.”
If the president is a king, then we are subjects, whose lives and livelihoods are only safe insofar as we don’t incur the wrath of the executive. And if we find ourselves outside the light of his favor, then we have find ourselves, in effect, outside the protection of the law.
Roberts says that presidential immunity from criminal prosecution is necessary to preserve the separation of powers and protect the “energy” of the executive. But the aim of the separation of powers was not merely to create exclusive spheres of action for each branch — if this were true, the Senate, which ratifies treaties and confirms executive branch appointments, would not exist in its current form — but to prevent the emergence of unchecked authority. Roberts has reversed this. Now separation of powers requires the absolute power of the executive to act without checks, without balances and without limits.
In their relentless drive to protect a Republican president and secure his power for a future administration, the conservative majority has issued a fundamentally anti-republican opinion. In doing so, it has made a mockery of the American constitutional tradition.
By the end of his time in the White House, Nixon was a disgrace. But to the conservative movement, he was something of a hero — hounded out of office by a merciless liberal establishment. One way to tell the story of the Republican Party after Nixon is as the struggle to build a world in which a future Nixon could act unimpeded by law.
Roberts has done more than score a victory for Trump. He has scored a victory for the conservative legal project of a unitary executive of immense power. Besides Trump, he has vindicated the lawlessness of Republican presidents from Nixon to George W. Bush. The Nixonian theory of presidential power is now enshrined as constitutional law.
This time when the president does it, it really won’t be illegal.
Scott Maxwell is a regular columnist for Tthe Orlando Sentinel. In this article, he discusses the meanest, most heartless, most inhumane law passed by the legislature. How about letting workers have a water and heat break in Florida’s hot, humid climate? Employers don’t want workers to take time off. They prefer to let them struggle under a fiery sun, even if they collapse.
Maxwell writes:
I’ve written a lot of pieces about a lot of cruddy bills in Florida.
But I can’t recall one that generated more universal disgust among readers than the one lawmakers passed a few months ago banning cities and counties from making sure outdoor workers get shade and water on blistering hot days.
Miami-Dade was discussing local regulations that would guarantee roofers, farmworkers and others who toil in Florida’s blistering sun basic things like water breaks, shade and first-aid treatment for heat stroke — the kind of precautions most people with a conscience would provide for their dog.
Yet Florida’s big business lobby didn’t want to be forced to provide any of that. So they got their puppets in the Legislature to pass a law making it illegal for any local government to pass heat-safety regulations. Yes, their target was water and shade.
I described it as “The most shameful law Florida passed this year.” And readers overwhelmingly agreed. The disgust came from Republicans, Democrats and independents all around the state.
“This is so wrong in so many ways,” said reader Ingrid, who noted that, as a homeowner, she offers shade, water, seating and bathrooms to workers painting the outside of her house. “It is the American and right thing to do…”
And multiple conservative and independent readers said this was the kind of bill that made them think the pendulum of one-party power has swung too far. “So often, I no longer support Democratic legislators because I feel they are too far left,” Bruce said. “After reading this, I must vote for them anyway because others are too far to the right.”
But a question I also received over and over was: Why?
Why would lawmakers — most of whom have families and many of whom claim to be people of faith — support a bill that denies guaranteed access to things so fundamental as water and shade?
Well, here’s the remarkable reality: They normally wouldn’t. In fact, they didn’t.
Just two years ago, Republican legislators joined Democrats to unanimously pass a bill out of committee that would’ve guaranteed similar heat-safety protections to workers across the entire state.
At the time, GOP legislators described the heat protections as simply humane. One said it was “heartwarming” to see everyone agree on such a basic concept. The bill’s sponsor, Miami Republican Senator Ana Maria Rodriguez said: “It’s really about health and wellness and making sure people are protected.”
But then, as the Seeking Rents website that tracks the way money influences public policy in Florida recently revealed, the state’s homebuilding and business lobby got involved. And the bill died.
Then this year, the business lobby put the push on steroids. The Florida Chamber of Commerce not only wanted to make sure that no state laws guaranteed workers heat-safety protections; they wanted lawmakers to pass a law that banned counties from doing the same.
The chamber even warned lawmakers that if they didn’t do as instructed, the politicians’ scores would be docked in the business group’s annual “How They Voted” report card. The chamber told lawmakers that their votes on this one issue would be counted twice.
That is how badly the chamber — which is funded by companies like Disney, Publix, U.S. Sugar and Florida Power & Light — wanted to make sure no companies in this state would be subject to local heat-safety regulations.
We’ve all watched ugly politics transpire in Tallahassee. But this was uglier than usual. Veteran Tallahassee journalist Bill Cotterell — who has covered Florida politics for more than half a century — wrote that this was an example of how “the pay-to-play system goes beyond regular back-scratching and turns into cruelty.”
Mark Wilson, the president of the chamber, disagrees. He says readers who are outraged and observers like me and Cotterell don’t understand the issue.
He says the reaction is union-generated “hysteria,” that the chamber is “working to make Florida the safest state in the nation,” that the U.S. division of Occupational Health and Safety Measures already requires companies to protect their workers and that most companies want to do so anyway.
You probably don’t need me to tell you how silly that last argument sounds. If all companies were already doing all these things, they wouldn’t have been so frantically lobbying against them. House Bill 433 bans counties from requiring employers to provide things like “water consumption,” “cooling measures” and “appropriate first-aid measures.”
OSHA does not regulate these things the same way. Instead, it has something called a “general duty clause” that broadly says employers shall provide a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” Its website explicitly says: “OSHA does not have a specific regulation regarding heat stress.”
And while Wilson said OSHA is working on more specific heat-safety provisions, the simple fact is they don’t exist now.
The reality is that businesses in Florida have gotten so used to having their way, they don’t want anyone telling them what to do — even when it has to do with worker safety. And this state has a political majority willing do whatever they’re told, so that they can continue getting endorsements and campaign donations. Even it means opposing basic safety measures they previously supported.
That’s something for you to remember the next time you see a campaign mailer telling you that some politician has an “A-plus” business rating. This is the kind of thing they had to support to earn it.
Well, I guess somebody has to stand up for the rights of spousal killers, wife beaters, child abusers, and the Second Amendment, and I’ll just bet you can guess who it is. Today, Supreme Court Justice Clarence Thomas stepped up and took one for the team, voting alone against the 8-1 decision in United States v. Rahimi that bars people from possessing firearms while they are under domestic violence restraining orders. Not stripping them of the right to own guns, mind you, but only suspending that right under the Second Amendment until such an asshole can get the restraining order straightened out so he can get his guns back.
Thomas must be spending so much time in the history stacks in the Fairfax County library, where he lives in Virginia, that they’re probably considering buying a cot for him to take naps on during his long hours of study of our laws in the 1700’s and 1800’s, not to mention old English law and a few ancient Greek statutes he quoted in his Bruen gun rights decision. Perusing the laws that were in existence at the time of our nation’s founding, Thomas wrote in his dissent in today’s case that “Not a single historical regulation justifies the statute at issue.” The “statute at issue” suspends the right of those under domestic violence restraining orders from possessing guns.
Chief Justice John Roberts appears to be the one who convinced four of the other six gun nuts on the court, all of whom voted to allow bump stock equipped machine guns earlier in the week, to join him in at least temporarily coming to their senses. Roberts was able to somehow resurrect enough common sense on the court that he got enough votes to rule, as the author of the decision, that “an individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.” I mean, whoop-de-fucking-doo, but I guess we are in the position of taking them when we can get them, right?
The plaintiff in the case, one Zacky Rahimi, is a convicted drug dealer who had beaten his girlfriend to the ground in a parking lot and was dragging her back to his car when a bystander intervened. Rahimi fired a shot at the bystander, and the girlfriend took that opportunity to escape. Rahimi called her later and threatened violence – specifically, he said he would “shoot” her – if she told anyone about the incident. The girlfriend asked a Texas court to issue a restraining order and amazingly they agreed, finding that Rahimi had committed “family violence” and suspended his right to possess guns while the restraining order was in effect.
Rahimi managed to hang onto enough firearms that he was involved in five shootings in the following months, according to the Supreme Court brief filed by the Biden Department of Justice. Rahimi was charged with illegal possession of a firearm, was convicted in federal court and sentenced to six years in prison. But Rahimi continued to argue that his rights under the Second Amendment had been violated. The Fifth Circuit Court of Appeals ruled against Rahimi at his first hearing, but after Justice Thomas wrote the decision in Bruen, ruling that laws restricting firearms had to be rooted in the “history and tradition” of this country, the Fifth Circuit reheard the case and, incredibly, ruled for Rahimi. Citing the Bruen case a Trump appointee on the court wrote that while the federal law banning people under restraining orders from possessing firearms was “meant to protect vulnerable people in our society…our ancestors would never have accepted” laws against domestic violence.
The decision by the Fifth Circuit Court of Appeals was unanimous, so Rahimi’s right to keep and bear arms under the Second Amendment was restored.
The case was appealed by the DOJ to the Supreme Court, where many legal experts feared it would hit the “history and tradition” brick wall of Thomas’ Bruen decision. Chief Justice Roberts, however, appeared to back the court away from that decision a bit today. “Some courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber,” Roberts wrote. “The Second Amendment permits more than just those regulations identical to ones that could be found in 1791.” Roberts cautioned that if courts hearing gun cases were to consider only laws in existence at the founding of the country, they would find laws dealing with “muskets and sabers.” Instead, Roberts urged courts that will interpret his decision in the future to consider whether a gun regulation at issue is “relatively similar” to regulations that were in effect closer to the nation’s founding. “For example,” Roberts wrote, “if laws at the founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations.”
In the amazingly dull and nearly impenetrable language of the Supreme Court, that comes as close as we will ever get to a relaxation of the Thomas decision in Bruen, which courts like the Fifth Circuit have interpreted as turning back the clock to the way guns were regulated in 1791, which is to say not at all.
That may be why Thomas was the lone dissenter in the decision today, because it took some of the edges off his celebration of guns-for-everybody in the Bruen decision. Or maybe Thomas, in his history-stacks-diving on domestic violence laws discovered, as he has before, a favorite old English construction of what husbands and domestic partners are permitted to do to the women in their lives: the “Rule of Thumb.”
It’s not like this subject hasn’t been dealt with before. In January of 1982, the U.S. Commission on Civil Rights issued a report that was entitled “Under the Rule of Thumb: Battered Women and the Administration of Justice.” The Commission found that when it came to domestic violence, “American law is built on the British Common Law that condoned wife beating and even prescribed the weapon to be used. This ‘rule of thumb’ stipulated that a man could only beat his wife with ‘a rod not thicker than his thumb.’”
The Commission noted that William Blackstone, who “greatly influenced the making of law in the American colonies,” commented thusly on the rule of thumb: “For as the husband is to answer for her misbehavior, the law thought it reasonable to entrust him with this power of chastisement, in the same moderation that a man is allow to correct his apprentices or children.”
American courts, bless their bleeding hearts, can be said to have taken up the rod passed to them by the Brits. Have a look at this from an 1864 court in a case of a man who choked his wife: “The law permits him to use towards his wife such a degree of force, as is necessary to control an unruly temper, and make her behave herself; and unless some permanent injury be inflicted, or there be an excess of violence, or such a degree of cruelty as shows that it is inflicted to gratify his own bad passions, the law will not invade the domestic forum, or go behind the curtain. It prefers to leave the parties to themselves.” The Civil Rights Commission quoted a Mississippi Supreme Court case from 1824: “Let the husband be permitted to exercise the right of moderate chastisement, in cases of great emergency, and use salutary restraints in every case of misbehaviour, without being subjected to vexatious prosecutions, resulting in the mutual discredit and shame of all parties concerned.”
After an Alabama court had rescinded the right of a man to beat his wife in 1871, a North Carolina court came along and provided some relief to all those poor men who had to deal with those damn recalcitrant women: “If no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive.”
Thomas, in his dissent that would allow abusive husbands and male partners under court restraining orders to own guns, would appear to smile upon Ye Ole Rule of Thumb as well. It’s history and tradition, you understand — Thomas’ favorite harkening back to the good old days when a man was allowed to own not only a gun, but a stick big enough to beat his wife with.
Diane Ravitch's blog 