Category: reason

Texas Attorney General Ken Paxton asked the U.S. Supreme Court on Monday to directly intervene in the 2020 presidential election by overturning the results in four states—Pennsylvania, Georgia, Michigan, and Wisconsin—that went for President-elect Joe Biden.

In a new legal filing that arrived at SCOTUS yesterday, a prominent group of conservative lawmakers and legal scholars have denounced the Texas lawsuit as “a mockery of federalism and separation of powers.” Among its signatories are former Sen. John Danforth (R–Mo.), University of St. Thomas law professor Michael Stokes Paulsen, former Department of Homeland Security official Paul Rosenzweig, and Princeton University legal scholar Keith E. Whittington. Those names are all known and respected among the justices of the Supreme Court.

The case is Texas v. Pennsylvania. Under Article III, Section 2 of the Constitution, the Supreme Court has “original Jurisdiction” in certain types of cases, including “Controversies between two or more States.” Most of the time, the Supreme Court exercises “appellate jurisdiction,” which means that it reviews the actions of lower courts. As I noted yesterday, “no state has ever pulled off a stunt even remotely like overturning the results of a presidential election by going straight to SCOTUS to challenge the results in another state.”

The conservative lawmaker/scholar filing argues that if Texas succeeds the result “would violate the most basic constitutional principles.” That is because the Constitution “plainly makes the appointment of electors a state-by-state matter….That is the opposite of a controversy between two or more states.”

The Constitution does say exactly that. Consider the relevant language from Article II, Section 1: “Each State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors….The Electors shall meet in their respective States.” (Emphasis added.)

To be sure, the Electors Clause is not a blank check. As the filing also points out, citing Bush v. Gore (2000), the Supreme Court “can exercise discretionary appellate review if state election law, or any remedial issue thereunder, as interpreted by a state supreme court, violates ‘some other constitutional constraint.” But “that is not remotely this case.”

It sure isn’t. The presidential election results in Pennsylvania, Georgia, Michigan, and Wisconsin have all been adjudicated by the courts in each of those states and the respective challenges to Biden’s wins have failed. The losing sides in those cases—meaning President Trump and his allies—are certainly entitled to ask SCOTUS to hear their appeals. But Texas has no such standing to sue those four states directly at SCOTUS over their election results.

The conservative lawmakers and legal scholars end their filing by urging the Supreme Court to reject Texas’ “request to transfer the powers of 50 state court systems to this Court.” What Texas seeks is “an unprecedented expansion of [federal] judicial power,” the filing states, quoting from Rucho v. Common Cause (2019). “The expansion of judicial authority would not be into just any area of controversy, but into one of the most intensely partisan aspects of American political life. That intervention would be unlimited in scope and duration—it would recur over and over again around the country with each” presidential election.

The filing is available here.

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The late Justice Ruth Bader Ginsburg was known to be a fast opinion writer. Indeed, she was often the first justice to issue an opinion in an argued case each term (even if Justice Thomas beat her to the punch last year). This year, without the Notorious RBG on the bench, there was some question about who would write the first opinion. This year, four of her colleagues shared the distinction of getting out the first opinion. As is often the case with opinions released early in a Supreme Court term, each of these opinions was unanimous. Each was also quite short.

The first decision released was Rutledge v. Pharmaceutical Care Management Association, rejecting the claim by pharmacy benefit managers that an Arkansas law governing prescription drug reimbursemednt rates was preempted by ERISA. Justice Sotomayor wrote for an 8-0 court. Justice Thomas wrote a separate concurrence, as he often does in preemption cases, to express disagreement with the Court’s preemption jurisprudence. As he has noted before, Justice Thomas believes the Court’s Court’s ERISA preemption jurisprudence, in particular, is divorced from the relevant statutory text.

Next to be released was United States v. Briggs, in which the Court rejected the argument the the five-years statute of limitations for certain offenses under the Uniform Code of Military Justice applied to rape prosecutions. Justice Alito wrote for an 8-0 court. Justice Gorsuch wrote a separate concurrence to note that he does not believe the Court has jurisdiction to hear appeals directly from the Court of Appeals for the Armed Forces, but that (assuming jurisdiction) the Court was correct on the merits. Of note, the case was argued by Texas law professor Stephen Vladeck.

The third released opinion was Carney v. Adams, in which the Court rejected a constitutional challenge to Delaware laws limiting the number of judges on specific courts may belong to the same political party and excluding members of minor parties from some judicial seats. Justice Breyer wrote for an 8-0 Court concluding that the plaintiff here lacked Article III standing to sue, in part because he had not actually applied to be a judge (but even though he said he would were it not for the laws barring his service). It is somewhat surprising that this case was unanimous. It is perhaps even more surprising that an opinion rejecting standing was written by Justice Breyer, who is usually quite permissive on this issue. On the other hand, if you cannot convince Breyer you have standing, you really must not have it. Justice Sotomayor wrote a short concurrence raising issues the Court should consider if and when the underlying question in Carney  returns to the Court in a case in which the plaintiff actually has standing to sue.

The fourth and final released opinion of the day was also surprisingly quick and unanimous Tanzin v. Tanvir. In an 8-0 opinion written by Justice Thomas, the Court concluded that, in suits under the Religious Freedom Restoration Act (RFRA), a person who claims their religious exercise rights were infringed by a federal government official may seek money damages from such officials in their individual capacities. According to Justice Thomas, money damages are included in the “appropriate relief” authorized by the statute. I think the Court is correct here. It is notable that the Court was unanimous in this–and that the justices thought the case was so easy that it could be disposed of so quickly in a 8 1/2-page opinion–given how much of a political football RFRA has become.

A few additional notes. Each of these was decided by an eight-member Court, as each had been argued during the October sitting, before Justice Amy Coney Barrett had been confirmed to replace Justice Ginsburg. Also, it’s worth noting that opinions are released in the reverse order of seniority—the junior-most justice first and the Chief Justice last. So the order in which opinions are released does not indicate which was finished “first.” This year, that honor belongs to four justices equally.

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In early December, a resident of New York City we’ll call J had what he thought was a good idea. With Mayor Bill de Blasio threatening to shut down gyms (again), the Upper West Side apartment dweller placed an ad on Nextdoor.com, the hyperlocal social networking site where people can swap goods and information. 

“Hello all,” the ad read. “I recently purchased a Peloton to keep in the office/gym of my apartment.” J and his girlfriend used the exercise bike, which streams video workouts, “5-10 times a week combined,” which left plenty of time for others to rent it “a couple of times a week at pre-agreed upon times for a fee of $50 per month. This is a great deal.” 

 J saw no downside to the arrangement. A self-employed fitness trainer whose livelihood had taken a hit during COVID-19, renting the Peloton would put some money in his pocket and, considering a gym membership at a Manhattan Equinox can run $260 per month, help others save money too. It also sidestepped the ongoing capriciousness (some say cluelessness) by officials that had left New Yorkers not knowing from week to week whether they’d be able to work out or eat out or send their kids to school.

J thought his offer, to let people into his home and use his equipment, was straightforward, even generous. His neighbors, not so much. 

 “I think ‘great deal’ is a stretch,” wrote someone from West 72nd Street. “If you finance the bike itself it’s $50/month.”

“Yes, I have a Peloton too and it’s $40/month,” added West 58th. “If you have a Chase credit card, they even automatically reimburse you monthly if you pay with your card.” 

“The $50/mo. wouldn’t cover 10 min of a civil defense attorney worth their weight in salt… the penalties for infringing IP are steep,” wrote West 67th, and included a link to Peloton’s terms of service and its 27 sections of restrictions.

Apparently, people shut up in their apartments are a little cranky, maybe a little insecure. This is understandable. Since March, new rules set in place by politicians seem designed to foster insecurity, to refashion a global pandemic into local pain. For instance, instead of allowing bars to just serve alcohol, Gov. Andrew Cuomo decided in July to mandate that bars also serve food. How was this helpful? Was this the same arbitrariness that had Cuomo declare gyms “high-risk” in the spring but this week say they “are not major spreaders“?  

In his ad, J addressed COVID-19 concerns, assuring potential customers the space was private and clean and, because the user would be in the room alone, “you will not be required to wear a mask during class, blah blah blah.” J was not being cavalier about the virus, but offering some freedom from the mask, which during a workout can become suffocating and damp. Lift your mask for a moment in public—even when on an outdoors run or ride—and you risk the stink eye or reprimands from people nearby. 

But J’s neighbors—despite not being personally at risk—weren’t having it.

“Although a nice gesture you should be careful as covid aerosols live in the air for up to 3 hours,” wrote 9th Avenue. “So unless the room is going to be totally unused for the day between people this seems like a bad idea.”

They also had qualms about the offer. What was J trying to get away with, anyway?

“We have a Peloton, the monthly subscription is $40,” wrote West 72nd. “Your pricing seems a little steep!”

“That’s your opinion,” responded J. “Clearly you’re not even interested–and just here to vent. I don’t see you offering to rent out your bike to help others.”

“And you’ll be declaring this on your taxes?” asked West 74th.

“I appreciate your concern,” wrote J, but your unsolicited tax advise [sic] is not wanted at this time.”

“It was not advice,” answered West 74th.

“Wow this is really an entitled group,” wrote J. “If you are really opposed to it, that’s great for you. Just keep your thoughts to yourself. I’m not trying to rip anyone or screw anyone over here.”

Not all neighbors were naysayers. West 65th said, were it not for COVID-19, “I would totally do this,” and West 86th, who mentioned he owned a $2,400 Peloton, explained that J’s proposal was, in fact, “a great deal.”

“For $50/month, and not having to buy the bike, it makes TOTAL sense,” he wrote, “especially as ‘Winter is Coming’ and pandemic restrictions.”

Pandemic restrictions that may or may not end as the temperature drops, as New Yorkers honeycomb away during the dark days, their lives upended by what a pal of mine calls “the whims of Lord Cuomo.”

Three days after placing the ad, J took it down. What he saw as ingenuity and friendliness, others eyed with suspicion. As far as J knows, no one actually threatened to report him to the city, but perhaps it was only a matter of time.

“Such a weird time. Everyone is so opinionated,” he told a friend of his Nextdoor foray. And while he did get a few takers, including a woman interested in replacing her $32 per class Soul Cycle regime, J does not plan to repost his Peloton. The combination of erratic threatened government closures of gyms and local busybodies means J’s Peloton will sit idle and neighbors who might have enjoyed a good, relatively safe workout won’t get the chance.

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A California judge has blocked Los Angeles County’s ban on outdoor dining in a sharply worded opinion that cites both a lack of evidence for the policy’s efficacy in controlling the pandemic and public health officials’ failure to consider the costs of closing down on-site dining for some 30,000 restaurants.

The county’s ban “is an abuse of the [Health] Department’s emergency powers, [and] is not grounded in science, evidence, or logic,” wrote Los Angeles Superior Court Judge James C. Chalfant in a tentative decision in a lawsuit brought by the California Restaurant Association (CRA) challenging the policy.

Though Chalfant’s Tuesday-issued decision will have limited practical effects—it doesn’t touch an identical state prohibition on outdoor dining—his ruling is a harsh rebuke of local policy makers’ ability to impose new COVID-19 restrictions without the backing of specific “science” and “data.”

“I, and a lot of other people who operate restaurants, do feel vindicated,” says Kat Turner, who owns the Highly Likely café in Los Angeles. “I think the [county’s outdoor dining ban] was made in a hasty attempt to corral the virus without giving too much thought to the after-effects.”

Chalfant’s ruling comes two weeks after Los Angeles County public health authorities, in response to a sharp rise in new infections, closed outdoor dining for the entire 10-million-person county. That decision—which at the time went beyond the restrictions imposed by the state—provoked a storm of protest.

Individual restaurants have said they wouldn’t comply with a ban on outdoor dining, and county sheriffs have said they won’t enforce one. One café even labeled its diners “peaceful protestors” in a nod to an exemption in current restrictions for outdoor political expression. Several municipalities within Los Angeles County registered their dissent by vowing to create their own health departments.

Even those business owners who haven’t been pushed into civil disobedience are still fuming at the county’s sudden decision.

One restaurant operator interviewed by Reason last week said that he’d poured hundreds of thousands of dollars into shifting his business to be all outdoors, only to be shut down again. Others told the Los Angeles Times the ban could put them out of business for good.

Turner says that the county’s policy has forced her to lay off two staff members, and cut the hours for her remaining employees. In addition to the financial hit, the outdoor dining ban destroys some of the intangible benefits her restaurant provides the neighborhood, she tells Reason.

“We’re restauranters, we love hospitality, we love caring for people, and being able to provide a safe environment for our community to get together. You can’t put a price on that,” Turner says.

In its lawsuit, the CRA argued that county public health officials hadn’t shown any specific evidence that outdoor dining was responsible for Los Angeles’ surging caseload. It pointed to Los Angeles County Health Department data finding that only 3 percent of new cases could be traced back to restaurants, and to Centers for Disease Control and Prevention (CDC) guidance ranking outdoor dining as a lower risk activity when paired with masks and spaced out seating.

The county argued in response that there was plenty of evidence that behaviors associated with outdoor dining—including diners removing their masks to eat and drink and mixing with members of other households—increased the risk of spreading COVID-19, and thus justified the ban.

That more general evidence, Chalfant ruled, wasn’t enough to sustain the county’s prohibition without it first conducting a more thorough cost-benefit analysis.

“A significant number of restaurants will shutter their doors completely as they will be uncertain as to the future,” his decision reads. “By failing to weigh the benefits of an outdoor dining restriction against its costs, the County acted arbitrarily and its decision lacks a rational relationship to a legitimate end.”

Most courts have been wary of striking down restrictions on business and individual behavior during the pandemic, preferring to give state and local governments wide discretion in crafting their own responses. Where legal challenges have succeeded, they’ve generally been on separation of powers grounds. Judges have proven more willing to strike down governors’ emergency orders for usurping the powers of state legislatures, for instance.

The decision blocking Los Angeles County’s outdoor dining ban is unusual in that it actually examined county officials’ justifications for its policy, as well as its potential costs.

“It’s an encouraging development that courts are starting to scrutinize the data that’s underlying these restrictions that are taking away people’s livelihoods,” says Luke Wake, an attorney with the Pacific Legal Foundation, which is currently suing Gov. Gavin Newsom and state public health officials over their pandemic restrictions.

Wake says that Tuesday’s decision, coming from a county superior court, will have little immediate effect on restaurants’ ability to reopen given the existing state prohibition on outdoor dining in Los Angeles County. Should the case be appealed, he says, a higher court ruling affirming it could set a precedent that helps to undo the state’s ban.

Legal consequences aside, Chalfant’s decision could undermine the political will of the governor and state public health officials to bring back March-style lockdowns in their full restrictive glory.

Already, the state has backed off some of the restrictions it imposed as part of its new stay-at-home order. This week, it allowed outdoor playgrounds to reopen following intense pressure from parents and lawmakers. Grocery stores have also been allowed to operate at 35 percent capacity, up from the 20 percent cap imposed by the state last week.

Turner says Tuesday’s ruling could help convince state officials to reverse course on their outdoor dining ban as well.

“The optimist in me thinks if it can happen here then perhaps it can happen at a state-wide level. L.A.’s a huge county and that’s a pretty major ruling for us,” she says, adding that “I think it also takes the community to support it as well. A lot of community members were also outraged with the outdoor dining ban.”

In California, business owners, judges, and the general public suffered through one round of lockdowns in the spring with relatively few complaints. Nine months into the pandemic, they’re proving less willing to do it all over again.

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The inmates have overtaken many prisons in Venezuela, armed with automatic weapons and grenades. They are governed by criminal gangs led by a “pran,” or kingpin, who strictly enforces the “thug code” by which all prisoners must abide, or they will be shot in various body parts. It’s too dangerous for guards or federal troops to enter, so they patrol the perimeter and train their rifles on any inmate who tries to leave. 

Inside the walls, the prisoners have formed functional, independent societies with open-air bazaars offering everything from Coca-Cola to crack cocaine. Several days a week, they welcome their girlfriends, wives, children, and extended families for visits, birthday parties, and even music festivals.

Communal activities are funded by La Causa, or “The Cause,” a tax that the prison’s de facto government collects from most inmates to purchase goods that come into the facility. If they don’t pay, they are sent to The Church, which acts as both a house of worship and a debtors’ prison-within-the-prison.

La Causa, a new documentary from 29-year-old filmmaker Andrés Figueredo Thomson, is a raw look at life inside what was, at the time of production, Venezuela’s largest prison. Filmed over the course of eight years, the documentary explores the structure of its self-organized society, where dissenters and those deemed social radicals were treated harshly. LGBT inmates, for example, were cast out and forced to live on the roof of a building. 

Figueredo Thomson was a 19-year-old high school senior in 2010 when he started capturing remarkable footage inside the prison, as the socialist strongman president Hugo Chavez dismantled democratic institutions and seized control of private businesses. With Venezuela sliding further into authoritarianism, Figueredo Thomson’s family was soon targeted.

His stepfather, Guillermo Zuloaga, led one of the last independent media outlets in the country after Chavez seized most of the others. He fought escalating government harassment for years as he continued to expose the vast human cost of the Chavez regime’s policies. But the year after Figueredo Thomson began production on La Causa, Chavez declared Zuloaga a political enemy of the revolution, forcing his family to flee to the U.S. 

The prison population has exploded in recent years as the regime of Chavez’s successor, Nicolas Maduro, has cracked down on mostly poor Venezuelans for alleged petty offenses. La Causa builds to a dramatic finish as the military embarks on a campaign to retake several inmate-run prisons, setting up a showdown in 2016 at the prison where Figueredo Thomson shot most of his footage. 

Produced, written, and edited by Justin Monticello. Audio production by Ian Keyser.

Music: Silent Partner 

Photos: Andrés Figueredo Thomson; CARLOS HERNANDEZ/picture-alliance / dpa/Newscom; EDWIN MONTILVA/REUTERS/Newscom; JORGE SILVA/REUTERS/Newscom; EDWIN MONTILVA/REUTERS/Newscom 

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