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President Donald Trump has said that he is sending federal law enforcement to Kenosha, Wisconsin in order to police the rioting that has broken out in the city following the shooting of Jacob Blake by Kenosha police on Sunday.

“We will NOT stand for looting, arson, violence, and lawlessness on American streets,” said Trump on Twitter Wednesday afternoon. “I will be sending federal law enforcement and the National Guard to Kenosha, WI to restore LAW and ORDER!”

We will NOT stand for looting, arson, violence, and lawlessness on American streets. My team just got off the phone with Governor Evers who agreed to accept federal assistance (Portland should do the same!)…

— Donald J. Trump (@realDonaldTrump) August 26, 2020

Trump says that Wisconsin Gov. Tony Evers, a Democrat, accepted the offer of federal assistance today, an offer he declined yesterday.

The governor had already authorized the deployment of 250 Wisconsin National Guard troops to Kenosha County following the rioting that broke out there on Sunday night. Today, he increased that number to 500.

Evers has also declared a state of emergency and an 8 p.m. curfew has been imposed in Kenosha. The New York Times reports that roughly 100 National Guard troops had been deployed to the city already.

The White House is authorizing the deployment of 2,000 National Guard troops from neighboring states in addition to 200 federal law enforcement personnel to assist state and local police, the Milwaukie Sentinel Journal reports.

Violence escalated in Kenosha last night when two people at demonstrations were fatally shot, and a third wounded. A 17-year-old Illinois teen, reportedly one of the vigilantes that have posted up outside of businesses in the city with the stated aim of preventing property destruction, has been arrested and charged with first-degree intentional homicide.

It’s not clear how many of the National Guard troops or federal agents will end up being deployed to Kenosha, or if any have arrived already. Reason‘s request for comment to Evers and Department of Homeland Security have not been returned.

The Sentinal-Journal reports that the decision to deploy additional National Guard troops is at the discretion of Wisconsin National Guard Adjutant General Paul Knapp.

“President Trump’s threat today to send federal law enforcement to Kenosha is misguided and will only make matters worse. We don’t need more police, we need to end police violence,” said Chris Ott, executive director of the ACLU of Wisconsin, in a statement this afternoon.

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Today, after entreaties to both the Supreme Court and President Donald Trump to intervene failed, Lezmond Mitchell, 38, was put to death at the U.S. Penitentiary in Terre Haute, Indiana, via lethal injection. He was pronounced dead by the Bureau of Prisons at 6:29 p.m.

Mitchell’s execution is the fourth by the Department of Justice under Attorney General William Barr, coming just a month after three men were executed over the course of a single week. Those three men were the first to be executed by the federal government in 17 years. With Mitchell’s execution, the Trump administration has the distinction of putting to death more federal inmates than any president since Dwight D. Eisenhower in the 1950s.

Mitchell was convicted of carjacking and murdering Alyce Slim, 63, and her granddaughter, Tiffany Lee, 9, in Arizona in 2001 when he was just 20. His underage accomplice was sentenced to life in prison. Mitchell, however, was sentenced to death.

Mitchell was a member of the Navajo Nation, as were the victims, and the murders took place on Navajo land. The leaders of the tribe have been objecting to Mitchell’s execution and do not support the death penalty. Leaders argued that putting Mitchell to death violated the tribe’s sovereignty. Under federal law, the Justice Department is supposed to defer to the tribe’s wishes whether to pursue the death penalty, but in Mitchell’s case, they used an exception with the carjacking charges to get around the law’s wording.

But some family members of the victims did not agree with the Navajo position. Donel Lee, brother of Tiffany, told an Associated Press reporter after the execution, “I thank President Trump and A.G. Barr for supporting my father and I on the execution. No thanks to the Navajo Nation president. … But now I’m at peace with it and justice is served.” According to the Associated Press, when asked if Mitchell had an final words, he simply said, “No, I’m good.”

At the same time that the Department of Justice is relaunching executions, we’re seeing examples of the potential for the criminal justice system to go awry and harm innocent people, depriving them of their liberty and potentially their lives, in part due to overzealous prosecution. Today, in Florida, DNA evidence revealed that a man incarcerated for 37 years is innocent of a rape and murder from 1983 in the Tampa area.

Robert Duboise was convicted partly on the strength of bite-mark evidence from a forensic dentist who matched marks on the victim’s face with Duboise’s teeth. The accuracy of this type of forensics science has long since been shown to be completely unreliable.

At one point Duboise was sentenced to death, but fortunately it was later reduced by a judge to life in prison. This gave the Innocence Project a chance to work with the case and also with office of Hillsborough County’s state’s attorney, who found new DNA evidence in a stored rape kit. The evidence exonerated Duboise, and he may be freed as early as Thursday.

There’s very little about Lezmond’s case that compares directly to Duboise’s. However, when the federal government executes a prisoner on the same day that another person who had been on death row is exonerated, it really is worth asking what we actually gain from executing prisoners, when we know full well that one potential consequence is that the government will knowingly be putting to death people who are innocent.

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The National Basketball Association’s playoffs came to an abrupt halt on Wednesday after players boycotted scheduled games to protest the shooting of Jacob Blake, a black man, by a white police officer.

What began with a boycott carried out by a single professional basketball team quickly spread across the league and the rest of the sports world, with two other NBA games and at least one Major League Baseball game called off as additional players joined the cause.

The Milwaukee Bucks were supposed to play the fifth game of their first-round series against the Orlando Magic on Wednesday afternoon, but Bucks players refused to leave the locker room for the start of the game. After initially warming up in the arena, players for the Magic walked off the court before the scheduled tip-off. With other teams reportedly planning similar boycotts in upcoming games, the NBA made the decision to cancel Wednesday’s entire slate of playoff games.

“Some things are bigger than basketball,” Alex Lasry, the Bucks’ senior vice president, said in a statement. “The stand taken today by the players and (the organization) shows that we’re fed up. Enough is enough. Change needs to happen. I’m incredibly proud of our guys and we stand 100 percent behind our players ready to assist and bring about real change.”

Some Bucks players were trying to get in contact with Josh Kaul, Wisconsin’s state attorney general, according to The Athletic‘s Shams Charania.

Kenosha, Wisconsin, where Blake was shot in the back at point-blank range at least seven times on Sunday afternoon, is about 30 miles south of Milwaukee. The small city has been wracked by violent protests in the days since Blake’s shooting, culminating in the destruction of several businesses and the deaths of at least two people.

The Milwaukee Brewers, a Major League Baseball team, canceled their game on Wednesday evening in order to protest Blake’s shooting. Other baseball teams are reportedly considering boycotting games as well.

NBA players and coaches have spent the past few days speaking out about Blake’s shooting. On Monday, Chis Paul of the Oklahoma City Thunder—who also happens to be the president of the NBA Players Association—used a postgame interview to share his thoughts on what had taken place in Kenosha on Sunday.

“It’s not right. It’s not right,” he said. “There’s a lot of stuff going on in the country. Sports—it’s cool, it’s good…but there are the real issues we have to start addressing.”

.@CP3 addresses the police shooting of Jacob Blake in Wisconsin after OKC’s win. pic.twitter.com/aJbhwlW5uD

— NBA on TNT (@NBAonTNT) August 24, 2020

And on Tuesday night, it was Los Angeles Clippers head coach Doc Rivers who focused his postgame news conference on how police violence against black Americans has been politicized.

.@DocRivers from the heart. pic.twitter.com/Qp7St7kZ1k

— LA Clippers (@LAClippers) August 26, 2020

Shortly after the Bucks-Magic game was postponed Wednesday, superstar Lebron James weighed in on Twitter.

FUCK THIS MAN!!!! WE DEMAND CHANGE. SICK OF IT

— LeBron James (@KingJames) August 26, 2020

When the NBA restarted its season after a months-long COVID-19 disruption, the league allowed players to wear pre-approved political statements on the back of their jerseys. Many players have opted to wear expressions supporting the Black Lives Matter movement, and other statements calling attention to police violence towards black Americans. The court where the NBA is playing all its playoffs games—at the Walt Disney World resort near Orlando, Florida, inside a so-called “bubble” to protect against the spread of COVID-19—is painted with the phrase “Black Lives Matter.“

On Wednesday, those sentiments jumped beyond what the league likely intended. Adrian Wojnarowski, an ESPN reporter covering the NBA playoffs, wrote on Twitter that the players’ boycott caught team owners and league officials by surprise. “This is a pivot point for the NBA and professional sports in North America,” he wrote.

It remains to be seen what will come of Wednesday’s boycott, or whether the protests will disrupt more games in the days to come. Already, the incident has demonstrated how much power professional athletes have to call attention to issues that stretch far beyond the arenas and playing fields. In 1968, some of the NBA’s star players discussed a similar boycott in the wake of the assassination of Martin Luther King, Jr., but couldn’t stir up enough support to make it happen.

Times have clearly changed. But as professional athletes made clear on Wednesday, they have not changed enough.

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Today, the Solicitor General filed an application for a stay in FDA v. American College of Obstetricians and Gynecologists. In this case, the U.S. District Court for the District of Maryland issued a nationwide injunction, blocking the FDA from enforcing “longstanding safety requirements for dispensing of Mifeprex, a drug indicated for termination of pregnancy during the first ten weeks.” That court held that these regulations, in light of the CVOID-19 pandemic, “pose an undue burden on abortion access” under Casey. The Fourth Circuit denied a stay.

The application provides what I think is the Solicitor General’s first interpretation of Whole Woman’s Health following June Medical. The SG argues that the District Court was “mistaken” in its consideration of the “benefits and burdens of the safety requirements” under WWH.

Respondents’ failure to show that the challenged requirements pose a substantial obstacle should end the judicial inquiry. Yet the district court alternatively concluded that even if respondents had not established a substantial obstacle, it could balance the benefits and burdens of the safety requirements under this Court’s decision in Whole Woman’s Health. App., infra, 62a. That was mistaken. In June Medical Services L. L. C. v. Russo, 140 S. Ct. 2103 (2020), every Justice of this Court stressed the importance of demonstrating that a law poses a substantial obstacle to abortion access in order to obtain relief. See id. at 2112, 2120, 2130 (plurality opinion); id. at 2135-2139 (Roberts, C.J., concurring in the judgment); id. at 2153-2154 (Alito, J., dissenting). And at least five Justices explicitly rejected the balancing test that the district court here adopted. See id. at 2135-2139 (Roberts, C.J., concurring in the judgment); id. at 2153- 2154 (Alito, J., dissenting); id. at 2182 (Kavanaugh, J., dissenting).

The SG expressly adopts the Chief Justices’s reading of WWH–the discussion of “benefits” was dicta:

The district court nevertheless held that it could weigh the safety requirements’ benefits and burdens based on its conclusion that June Medical did not “overrule[]” “Whole Woman’s Health and its balancing test.” App., infra, 37a. But Whole Woman’s Health contains no holding adopting such a test. As the Chief Justice explained, “the discussion of benefits in Whole Woman’s Health was not necessary to its holding,” and that decision “explicitly stated that it was applying ‘the standard, as described in Casey.’ ” June Medical, 140 S. Ct. at 2139 & n.3 (concurring in the judgment) (quoting Whole Woman’s Health, 136 S. Ct. at 2309). The standard described in Casey, as the Chief Justice further observed, ” ‘squarely foreclosed’ ” any argument that a law not posing a substantial obstacle is “invalid” merely because it lacks ” ‘any health basis.’ ” Id. at 2138 (quoting Mazurek v. Armstrong, 520 U.S. 968, 973 (1997) (per curiam)).

The SG reads June Medical the same way that Judge Willett and the Eighth Circuit did read it.

Accordingly, June Medical confirms that the undue-burden standard adopted in Casey continues to “requir[e] a substantial obstacle before striking down an abortion regulation.” Id. at 2139; see also Hopkins v. Jegley, No. 17-2879, 2020 WL 4557687, at *2 (8th Cir. Aug. 7, 2020) (per curiam) (vacating preliminary injunction of abortion regulations in light of June Medical because the district court had applied a “cost-benefit standard”).3

But the SG punts on the Marks rule issue.

FN3: 3 The district court also concluded that the Chief Justice’s opinion in June Medical rejecting the court’s reading of Whole Woman’s Health is not the narrowest one under Marks v. United States, 430 U.S. 188 (1977), and therefore is not controlling. But that is beside the point here, because the four dissenting Justices in June Medical agreed with the Chief Justice on the substantial-obstacle requirement, 140 S. Ct. at 2154 (Alito, J.), and thus the district court’s contrary view is likely to be reversed by this Court if affirmed by the Fourth Circuit.

I had expected Texas’s petition for rehearing en banc to tee up the first major challenge to WWH. But the Court may resolve this question on the shadow docket. Indeed, the SG relies on the Chief’s opinions’ in June Medical and South Bay:

That sort of judicial management of public-health policy is inappropriate. The “Constitution principally entrusts ‘the safety and the health of the people’ ” to officials who must ” ‘act in areas fraught with medical and scientific uncertainties,’ ” and who generally “should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health.” South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613-1614 (2020) (Roberts, C.J., concurring in denial of application for injunctive relief) (brackets and citations omitted). And that is especially true when the second-guessing amounts to a conclusion that a “woman’s liberty interest” outweighs “the State’s interests” in protecting her “health”—a comparison of “imponderable values” that is not “a job for the courts.” June Medical, 140 S. Ct. at 2136 (Roberts, C.J., concurring in the judgment).

Stay tuned.

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“With smaller testing we would show fewer cases!,” tweeted President Trump back on June 23 with regard to diagnostic COVID-19 tests. “Instead of 25 million tests, let’s say we did 10 million tests. We’d look like we were doing much better because we’d have far fewer cases. You understand that,” Trump said on CBN News. The president told the participants at his Tulsa campaign rally in June, “I said to my people, ‘Slow the testing down, please!'” White House press secretary Kayleigh McEnany later told reporters, “It was a comment that he made in jest.” Trump almost immediately contradicted McEnany, telling a reporter, “I don’t kid, let me just tell you, let me make it clear.”

And it turns out that the president really wasn’t kidding. The New York Times is reporting that the Centers for Disease Control and Prevention (CDC) was pressured by officials in the White House to change its testing recommendations.

U.S. Public Health Service Admiral Brett Giroir, a physician, denies being pressured. “Let me tell you right up front that the new guidelines are a C.D.C. action,” said Dr. Giroir. “As always, guidelines received appropriate attention, consultation and input from task force experts—and I mean the medical and scientific experts—including C.D.C. director Redfield and myself.”

The CDC’s new guidelines issued on Monday do in fact discourage Americans from getting tested for COVID-19 infections. Before changes were made Monday, the CDC website said testing was recommended “for all close contacts of persons with SARS-CoV-2 infection.” The revised guideline reads:

If you have been in close contact (within 6 feet) of a person with a COVID-19 infection for at least 15 minutes but do not have symptoms: You do not necessarily need a test unless you are a vulnerable individual or your health care provider or State or local public health officials recommend you take one.

One problem is that if you wait to get tested until after symptoms appear after being exposed to an infected person, you can become an unwitting presymptomatic spreader of the virus. For example, one recent study found that nearly 50 percent of infections were transmitted while folks were presymptomatic. It is also possible that asymptomatic people who could be identified via a more robust testing regime may also be inadvertently infecting other people. In fact, the CDC’s own current best estimate scenario assumes that asymptomatic people are 75 percent as infectious as those who have symptoms.

Instead of discouraging people from seeking COVID-19 tests, the U.S. should be massively ramping up testing as part of a comprehensive effort to control the pandemic and enable the safe reopening of the economy.

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