5th circuit ct
11 21
southern? trumpista mcconn stacked?
see alito
see doughty RAGA BS slapped down by acb 6 24
healey beat exxon
HO torture fed soc, clarence clerk
vulnerability
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circuit Assignments
It is ordered that the following allotment be made of The Chief Justice and the Associate Justices of this Court among the circuits, pursuant to Title 28, United States Code, Section 42 and that such allotment be entered of record, effective September 28, 2022.
- For the District of Columbia Circuit - John G. Roberts, Jr., Chief Justice
- For the First Circuit - Ketanji Brown Jackson, Associate Justice
> (Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island)
- For the Second Circuit - Sonia Sotomayor, Associate Justice> (Connecticut, New York, Vermont)
- For the Third Circuit - Samuel A. Alito, Jr., Associate Justice> (Delaware, New Jersey, Pennsylvania, Virgin Islands)
- For the Fourth Circuit - John G. Roberts, Jr., Chief Justice> (Maryland, North Carolina, South Carolina, West Virginia, Virginia)
- For the Fifth Circuit - Samuel A. Alito, Jr., Associate Justice> (Louisiana, Mississippi, Texas)
- For the Sixth Circuit - Brett M. Kavanaugh, Associate Justice> (Kentucky, Michigan, Ohio, Tennessee)
- For the Seventh Circuit - Amy Coney Barrett, Associate Justice> (Illinois, Indiana, Wisconsin)
- For the Eighth Circuit - Brett M. Kavanaugh, Associate Justice> (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota)
- For the Ninth Circuit - Elena Kagan, Associate Justice> (Alaska, Arizona, California, Guam, Hawaii, Idaho, Oregon, Montana, Nevada, Northern Mariana Islands, Washington)
- For the Tenth Circuit - Neil M. Gorsuch, Associate Justice> (Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming)
- For the Eleventh Circuit - Clarence Thomas, Associate Justice> (Alabama,Florida, Georgia)
- For the Federal Circuit - John G. Roberts, Jr., Chief Justice.
2 11? 26 ruled ok detention camps ice?
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an 9 25 random rg
US President Donald Trump is on a losing streak this week. Just look at the latest judicial decisions challenging his policies, from mass deportations to tariffs to his troop deployments to US cities.
The courts are proving to be a significant check on Trump’s thirst for absolute power.
These cases illustrate the point:
Immigration
Over Labor Day weekend, Immigration and Customs Enforcement attempted to begin deporting up to 700 unaccompanied Guatemalan children. In the dead of night, the first children were loaded onto planes in south Texas. “These are unaccompanied children who do not have a parent or a guardian with them,” Efrén Olivares, an attorney representing the minors, said on the *Democracy Now!*news hour.
At 1:00 am on Sunday morning, Olivares and his colleagues filed an emergency complaint with the federal court in Washington, DC. Judge Sparkle Sooknanam was woken after 2:00 am, and by 4:00 am she issued a temporary restraining order blocking the deportations until the children had the immigration hearings to which they have a legal right.
Meanwhile in Texas, the 5th Circuit Court of Appeals, considered the nation’s most conservative, ruled that Trump’s use of the 1798 Alien Enemies Act to deport people was illegal.
Tariffs
The Appeals Court in Washington DC ruled that Trump’s so-called “Liberation Day” tariffs were illegal and unconstitutional, noting that only Congress has the power to impose tariffs. The ruling was “a sweeping decision that unequivocally rebukes President Trump’s idea that he can impose tariffs on American consumers on his own,” Neal Katyal, the attorney who argued the case, said on *Democracy Now!*
Domestic Deployment of the Military
Trump says, “We’re going in,” threatening to invade Chicago using, among other forces, the Texas National Guard.
But in California, a federal judge, invoking the 1878 Posse Comitatus Act that bars the use of military in domestic law enforcement, ruled in favor of Gov. Gavin Newsom, finding Trump’s deployment of the California National Guard to the streets of Los Angeles, along with several hundred US Marines, was illegal. Judge Charles Breyer, the brother of retired US Supreme Court Justice Stephen Breyer, issued an injunction barring the Trump administration from “deploying, ordering, instructing, training, or using the National Guard currently deployed in California, and any military troops [from] engaging in arrests, apprehensions, searches, seizures, security patrols, traffic control, crowd control, riot control, evidence collection, interrogation, or acting as informants.”
These are just a few of the recent court cases that have rebuked Trump as he attempts to subvert the US Constitution.
We recently got a personal glimpse into what judicial wins over Trump look like. In the high mountain air of Telluride, Colorado, we had a chance to spend time with E. Jean Carroll, the renowned advice columnist and journalist. She was at the Telluride Film Festival for the premier of the new documentary, Ask E. Jean.
Carroll had a long and storied career as the advice columnist forElle Magazine, and has published several books. In recent years she became known as one of the most prominent women to accuse Donald Trump of sexual abuse, saying he raped her in the dressing room of the Bergdorf Goodman department store in the mid-1990s, in Manhattan.
The courts are playing a central role in opposing the lawless Trump administration, but the core of the resistance are people.
Carroll sued Trump in civil court, and a jury found him guilty of sexually abusing her. Judge Lewis Kaplan wrote, “Trump did in fact ‘rape’ Ms. Carroll as that term commonly is used and understood.” She was awarded a $5 million settlement from Trump. After the verdict, he called her a liar. She then sued for defamation, and won an additional jury award of $83.3 million.
Carroll cut an elegant figure, walking along Telluride’s main avenue with the sweeping Continental Divide as a backdrop. Her film premiered to rave reviews, and, should there remain a film distributor in this country not cowed by threats of lawsuits from Trump, it should be available for viewing by a wide audience. The film highlights the story of one courageous woman refusing to be defined as a victim of Donald Trump, providing inspiration, no doubt, to the hundreds of survivors of Trump’s old friend, the now-dead sexual predator Jeffrey Epstein. Many of them spoke this week outside the US Capitol, demanding the full release of the Epstein files. The Trump administration, which controls the files, is resisting.
Behind each lawsuit are impacted people, whether immigrant children pulled from their beds in the middle of the night and thrown on planes, or people standing up in the streets of LA confronting illegally deployed troops, whether sexual abuse survivors banding together, or federal workers fired en masse.
The courts are playing a central role in opposing the lawless Trump administration, but the core of the resistance are people–people at every level organized in opposition, defending democracy.
NOW READ:Trump's horrific cult contains the seeds of its own destruction
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Legal Victory in Louisiana: Fifth Circuit Revives Environmental Justice Lawsuit
In a significant development for environmental justice, the U.S. Fifth Circuit Court of Appeals ruled on April 9, 2025, that a lawsuit challenging discriminatory land use practices in St. James Parish, Louisiana, can proceed. The plaintiffs—community and faith-based groups—allege that the parish has systematically placed hazardous industrial facilities in majority-Black neighborhoods, disproportionately affecting residents' health and cultural heritage. The court's decision allows the case to move forward, offering hope for communities seeking accountability and change. McGlinchey Stafford PLLC+2Center for Constitutional Rights+2Louisiana Law Blog+2Center for Constitutional Rights+2Louisiana Law Blog+2McGlinchey Stafford PLLC+2
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5th-circuit-planned-parenthood-abortion-00206327
02/26/2025
A three-judge panel at the conservative-leaning 5th Circuit Court of Appeals on Wednesday reversed a lower court ruling that Planned Parenthood could be liable for nearly $2 billion for defrauding Medicaid.
The unanimous ruling overturns a decision by Texas U.S. District Court Judge Matthew Kacsmaryk, a Donald Trump appointee. In 2023, he ruled that Planned Parenthood had to return millions in funding it received from Texas and Louisiana’s Medicaid programs and used to provide services to low-income patients. Texas is also seeking more than a billion in damages as the case continues.
The case was triggered by an anti-abortion activist’s sting operation that produced recordings of Planned Parenthood staff discussing the donation of fetal tissue from abortions for research purposes in 2015. The tapes prompted Texas and Louisiana to try to throw the provider out of their Medicaid programs and prevent low-income patients from going to its clinics for non-abortion services like testing for sexually transmitted diseases and contraception. After several years of litigation, Planned Parenthood remains part of Louisiana’s Medicaid program but not Texas’.
Wednesday’s narrow, pre-trial ruling — from George H.W. Bush appointee Rhesa Barksdale, George W. Bush appointee Leslie Southwick and Barack Obama appointee James Graves Jr. — focused on the challengers’ attempt to hold Planned Parenthood’s national organization financially liable by arguing that the group’s lawyers wrongly advised their affiliates in Texas and Louisiana to continue billing Medicaid while the case played out. The appeals court held that the attorneys can’t be sued by a third party for advice they gave to their own clients.
“If private attorneys did not have immunity for their activities within the scope of litigation, they would be subject to suit from a third party every time they represent an unpopular client or advance an unpopular issue,” the judges wrote. “It is not difficult to imagine the chilling effect that would have on private attorneys’ willingness to participate in unpopular cases.”
Planned Parenthood maintains it did nothing wrong and described the case as an ideologically driven attempt to bankrupt it — noting that Texas sued their national arm as well as their lawyers and state medical providers.
“This baseless case has only one goal: to shut down Planned Parenthood and deny patients access to sexual and reproductive health care,” the organization’s general counsel, Susan Manning, said in a statement following the ruling. “The three-judge panel followed the law and the facts to reach their decision. We look forward to having our day in court where we expect to be vindicated.”
Texas Attorney General Ken Paxton did not respond to a request for comment.
The case now returns to the district court for further arguments on the remaining claims against the state affiliates.
Cutting state and federal funding to Planned Parenthood is a top priority of the anti-abortion movement, and activists are pushing in Congress, state legislatures and other lawsuits to block the provider from receiving money from Medicaid, the Title X family planning program and other government sources.
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Louisiana argues parts of Voting Rights Act are unconstitutional
an 1 15
NEW ORLEANS – Attorneys representing Louisiana in a lawsuit against the state legislative redistricting plans passed in 2022 are arguing that a key piece of the Voting Rights Act is unconstitutional and should not be applied to the state.
The case could produce a bellwether decision that impacts Black voting strength in several states where similar challenges have arisen.
Arguments were presented Tuesday to a three-judge panel of the U.S. 5th Circuit Court of Appeals in the case Nairne v. Landry,in which Black voters are challenging the most recent legislative redistricting maps as unconstitutional racial gerrymanders.
Last February, U.S. District Judge Shelly Dick of the Middle District of Louisiana ruled that maps Louisiana lawmakers drew two years ago to update the boundaries of their own districts do not give Black voters a fair opportunity to elect their own representatives. Dick’s ruling came after the 2023 elections, when a new class of lawmakers were elected, yielding a Republican supermajority in both chambers.
While Dick’s ruling blocks legislative elections from being held in every district while the lawsuit plays out, plaintiffs in the case agreed to let special elections for two vacant Louisiana Senate seats go forward in February.
The state has appealed Dick’s decision. Section 2 of the Voting Rights Act of 1965 prohibits voting laws or procedures that purposefully discriminate on the basis of race, color or membership in a language minority group.
“Conditions that originally justified those measures no longer apply to Louisiana,” Deputy Solicitor General Morgan Brungard argued. “We ask the court to reverse and hold Section 2 unconstitutional as it applies to Louisiana.”
Brungard argued that Black voter turnout in Louisiana is sufficiently high enough that Section 2 is no longer necessary.
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The three 5th Circuit judges presiding are James Dennis, an appointee of President Bill Clinton, Catharina Haynes, an appointee of President George W. Bush, and Irma Ramirez, an appointee of President Barack Obama.
For over a decade, conservative attorneys and officials have sought to whittle down the Voting Rights Act. Nairneis one vehicle politicians have sought to use as a test case against Section 2.
Last year, Republican attorneys general from 14 states filed an amicus brief in the case arguing Section 2 is unconstitutional. That action followed a 2023 decision in the U.S. 8th Circuit Court of Appeals in St. Louis that only the federal government can seek an enforcement ruling under the Voting Rights Act, rather than individuals.
The federal government and voting rights advocates have pushed back on that stance.
Every case brought under Section 2 is likely to be used as a test case for those that seek to have that portion of the Voting Rights Act overturned, advocates have said.
The U.S. Department of Justice intervened in Nairnein response to the state’s arguments against Section 2 but remained neutral on the other aspects of the case.
Noah Bokat-Lindell, a DOJ civil rights attorney, argued states cannot get a carveout from a generally applicable statute. For example, they cannot become exempt from the Americans with Disabilities Act because a state argues it doesn’t discriminate against disabled people, he said.
In a press conference after the hearing, Attorney General Liz Murrill argued that if Section 2 of the Voting Rights Act was ruled unconstitutional, Black voters could still count on the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.
“Those are legal arguments that we wanted to preserve so that they eventually might make it up to the United States Supreme Court,” Murrill said. “They’ve also been percolating in a number of other cases related to the scope and continuing application of Section 2 to states under current conditions.”
If Dick’s decision is upheld, legislators will have another opportunity to redraw the boundaries of their districts. Dick, an Obama federal court appointee, did not specify in her ruling the number of majority Black districts necessary to comply with the Voting Rights Act.
Plaintiffs have said the state should add six in the Louisiana House and three in the Senate. Currently, 28 out of 105 House districts are majority Black, as are 11 of 39 Senate districts.
State Rep. Edmond Jordan, D-Baton Rouge, who is Black, said he intends to file a bill with a new redistricting plan in the upcoming legislative session, which begins April 14.
Also at issue in Nairneis whether Dick erred in blocking the entire redistricting plan. Attorneys for the state argue the plaintiffs only have standing to challenge the districts where they live.
It is not known when the 5th Circuit panel will rule on the state’s appeal.
Louisiana Illuminator is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Louisiana Illuminator maintains editorial independence. Contact Editor Greg LaRose for questions: info@lailluminator.com.
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In a majority decision, U.S. Supreme Court Justice Amy Coney Barrett slapped down the Fifth Circuit Court of Appeals in a decision Wednesday.
Red states and conservatives sued President Joe Biden's administration for coordinating with social media companies to help tamp down misinformation about the pandemic in 2021.
According to the Supreme Court majority in the *Murthy v. Missouri* case, the parties didn't have standing to sue.
It reverses the conservative Fifth Circuit, which said communications between governmental officials and social media platforms meant that the government officials were regulating content-moderation decisions for the platform.
"The Fifth Circuit was wrong to do so," wrote Barrett.
According to SCOTUS Blog reporter Amy Howe, "The challengers contend that the restrictions that they experienced in the past on social media platforms could be attributed to the defendants and that the platforms will continue to censor their speech."
The Supreme Court rejected the idea, writing that the "platforms had independent incentives to moderate content and often exercised their own judgment. To be sure, the record reflects that the Government defendants played a role in at least some of the platforms' moderation choices. But the Fifth Circuit, by attributing every platform decision at least in part to the defendants, glossed over complexities in the evidence."
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Exxon’s Conspiracy Charges Aim To Derail Climate Lawsuits - DeSmog
by David Halperin, crossposted from Republic Report
Oil giant ExxonMobil is engaged in unprecedented efforts to sue and harass in court the very people who are investigating and suing the company over global warming. Faced with determined efforts by states and localities to hold it and other fossil fuel companies accountable for contributing to, and concealing the evidence of, climate change, Exxon is crying foul, contending that it’s the victim of politically- and financially-motivated conspiracies.
But in reality there are no improper schemes behind the cases against Exxon. Instead, what’s troubling is an apparent effort by Exxon, one of the world’s wealthiest corporations, and its powerhouse corporate lawyers, to avoid a courtroom reckoning by making specious legal arguments and outspending their foes in the legal arena.
Through its attorneys at New York’s Paul Weiss Rifkin Wharton and Garrison, and Texas-based firms Haynes & Boone and Cantey Hanger, ExxonMobil has sued the attorneys general of Massachusetts, New York, and the U.S. Virgin Islands. And the company has recently targeted for depositions and document subpoenas, and threats of more lawsuits, numerous state officials, private attorneys, and advocates.
Exxon’s legal counterattack began after the Massachusetts, New York, and Virgin Islands AGs started investigating whether Exxon misled consumers and investors about the dangers of global warming and the potential impact of those dangers on the company’s bottom line. Investigative reporting in 2015 showed that Exxon scientists have known, and told Exxon management for decades, that burning fossil fuels was heating up the planet, but rather than educate the public on the dangers and change its business strategy, Exxon instead spent millions supporting efforts to question and deny the science of climate change. The state AGs also started investigating whether ExxonMobil has properly accounted for its oil reserves in the wake of global price drops and evidence of global warming.
The Massachusetts AG, Maura Healey, has explained that her investigation focuses “on whether Exxon may have misled consumers and/or investors with respect to the impact of fossil fuels on climate change, and climate change-driven risks to Exxon’s business,” in marketing energy products and in marketing Exxon securities, in violation of the state consumer protection law.
Similarly, New York’s AG, Eric Schneiderman, has indicated that he is investigating whether ExxonMobil’s public statements about climate change conflicted with its internal research, which could have led to “state law violations, including under the Martin Act,” the New York law that prohibits financial deception and fraud. (The New York AG reached settlements with Xcel Energy and Dynegy, Inc. in 2008 and with AES Corp. in 2009 based on those companies’ failures to disclose climate change risks in securities filings.)
In 2016, Exxon launched its response, suing Healey, Schneiderman, and U.S. Virgin Islands attorney general Claude Earl Walker in federal courts in its home region of Dallas-Fort Worth. The suit against Walker succeeded when his small office halted its investigation of the oil titan, but the other two AGs persisted.
U.S. District Judge Ed Kinkeade approved Exxon’s demand that Healey and Schneiderman submit to depositions by Exxon lawyers — an unwarranted, and virtually unprecedented move, as prosecutors aren’t normally required to face cross examination by people whom they’re investigating. Healey and Schneiderman fought back, seeking an unusual mid-case appeal to the 5th Circuit U.S. Court of Appeals, after which Kinkeade backed down, cancelled the depositions, and transferred the case to a federal court in New York.
As Exxon continues its efforts to convince a Manhattan federal judge to allow it to depose the two state AGs and, ultimately, to block their probes, it faces a new wave of lawsuits: since September 2017, eight cities and counties in California, plus New York City, have sued Exxon and other fossil fuel companies, alleging harm to their communities from climate change.
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...With Exxon CEO In Trump Spotlight, A Primer On The Company's Climate Court Fight
[
By David Halperin, Contributor
Attorney, advocate, writer at RepublicReport.org
Dec 12, 2016, 05:24 PM EST
|Updated Dec 13, 2017
This post was published on the now-closed HuffPost Contributor platform. Contributors control their own work and posted freely to our site. If you need to flag this entry as abusive, send us an email.
Donald Trump's public contemplation of picking ExxonMobil CEO Rex Tillerson to be U.S. Secretary of State raises a range of controversies, including Tillerson's dealmaking with Russia and close ties to Vladimir Putin. It also intensifies attention on ExxonMobil's escalating court battle with the attorneys general of New York and Massachusetts over the question of whether the company improperly concealed information about climate change.
Just today, a federal judge in Texas, Ed Kinkeade, cancelled his controversial order directing the Massachusetts AG, Maura Healey, to come to his Dallas courtroom tomorrow morning to be questioned by ExxonMobil's lawyers.
Here's a summary of ExxonMobil's legal dispute with the attorneys general, so far:
Investigative reporting in the past year demonstratedthat Exxon scientists have known and had told Exxon management for decades that burning fossil fuels was heating up the planet. But rather than educate the public on the dangers and change its business strategy, Exxon instead spent millions supporting efforts to question and deny the science of climate change. There also are questions as to whether ExxonMobil has properly accounted for its oil reserves in the wake of global price drops and evidence of global warming.
Responding to those reports and other evidence, New York attorney general Eric Schneiderman issued a subpoena to ExxonMobil in November 2015. ExxonMobil has produced more than 700,000 pages of documents to Schneiderman in response to his subpoena. On October 26, 2016, a New York judge ordered ExxonMobil and its auditor, PwC, to comply with a subpoena issued by Schneiderman seeking additional information regarding PwC's auditing of the oil company.
A group of state attorneys general met in New York on March 29, 2016, and consulted with several outside lawyers and experts on climate change issues. Following the meeting, the AGs, along with former Vice President Al Gore, held a press conference under the banner "AGs United for Clean Power" and announced they had formed a coalition to investigate ExxonMobil's conduct. The coalition included the attorneys general of California, Connecticut, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Mexico, New York, Oregon, Rhode Island, Virginia, Vermont, Washington, the District Of Columbia, and the U.S. Virgin Islands.
Soon after, in April 2016, Massachusetts attorney general Maura Healey issued a civil investigative demand (CID) to ExxonMobil. U.S. Virgin Islands attorney general Claude Walker issued a subpoena to the company the same month.
ExxonMobil promptly sued Walker in Texas state court in Fort Worth to block the Virgin Islands subpoena.
Then, on June 15, 2016, ExxonMobil sued Healey in federal court in Dallas to block her civil investigative demand.
On June 29, Walker, facing expensive litigation against ExxonMobil's legal team, agreed to withdraw his subpoena, and Exxon dropped its suit. Walker said then that he planned to continue to investigate ExxonMobil and would keep his eye on Healey's effort.
ExxonMobil argues in its suit against Healey that the Massachusetts AG is acting out of political motivation, and there is no legitimate basis for the AG probes, and that the First Amendment shields the company from scrutiny for its public statements -- a claim that leading constitutional law experts sharply dispute, because it is a settled legal principle that the First Amendment doesn't protect fraud.
In August 2016, fourteen attorneys general -- from Maryland, New York, Illinois, Iowa, Maine, Minnesota, Mississippi, New Mexico, Oregon, Rhode Island, Vermont, Washington, the District of Columbia, and Virgin Islands -- filed a friend-of-the-court brief supporting Healey, while eleven AGs -- Texas, Louisiana, South Carolina, Alabama, Michigan, Arizona, Wisconsin, Nebraska, Oklahoma, Utah, and Nevada -- filed a brief supporting ExxonMobil.
On October 13, citing ExxonMobil's arguments, U.S. District Judge Ed Kinkeade issued an order permitting ExxonMobil to take limited discovery regarding attorney general Healey's comments and actions, in order to examine whether Healey served the CID in bad faith. Armed with this ruling, ExxonMobil, on October 24, served on attorney general Healey more than a hundred discovery requests.
Exxon also asked Judge Kinkeade for permission to add New York attorney general Schneiderman as a defendant in the case, a motion the judge granted. On November 4, ExxonMobil sought depositions of Healey, Schneiderman, and two assistant attorneys general in each of their offices.
On November 17, Judge Kinkeade issued an order directing Healey and Schneiderman to come to his courtroom in Dallas on December 13 to face depositions from ExxonMobil's legal team.
On November 29, Exxon withdrew its deposition notice for Schneiderman; it continues to seek other discovery from Schneiderman's office, including depositions of two top environmental enforcement officials in that office.
ExxonMobil also has subpoenaed in the Texas lawsuit some of the non-profit organizations and lawyers who have provided Healey and Schneiderman with information and expertise regarding the matter.
Healey said she would "vigorously oppose" Judge Kinkeade's order for her to be deposed. "Our position in this ligation is that the authorities in Texas, and specifically the federal court down there, has no jurisdiction over state attorneys general and the work of their offices," Healey told reporters in Boston on November 21. "It's been disappointing to see Exxon fight the request for basic information. Our job as attorneys general is to be able to ask questions."
Healey filed amotion asking the judge to reconsider his rulings. On December 6, 2016, Healey petitioned the United States Court of Appeals for the 5th Circuit for a writ of mandamus to reverse the order.
Schneiderman, as well as the outside groups and lawyers, are also opposing Exxon's efforts to take discovery in the Texas case. (Disclosure: I have advised some of these groups.)
On December 9, Judge Kinkeade denied Healey's motion to suspend Exxon's discovery in the case pending review by the 5th Circuit and also denied Schneiderman's motion to quash discovery.
On December 9, Schneiderman filed a motion with Judge Kinkeade to stay discovery against him pending appellate review -- the same type of motion that Kinkeade had denied Healey earlier that same day. In his papers, Schneiderman said that he intended to seek mandamus before the 5th Circuit on December 12.
On December 12, Judge Kinkeade issued a one-line order cancelling his prior order that Healey be deposed on December 13. The judge did not block any other discovery or indicate whether or when he would revisit the issue of deposing Healey.
ExxonMobil's lawsuit is a virtually unprecedented effort by a corporation to sue and investigate state prosecutors who are conducting an investigation of that corporation. Although Judge Kinkeade stated that he found sufficient grounds for ExxonMobil to investigate whether the AGs had acted in bad faith, in fact the AGs have been engaged in activities that are commonplace and entirely appropriate for state prosecutors: (1) cooperating with AGs from other states, (2) consulting with experts about possible unlawful activity, (3) seeking documents to investigate that activity, and (4) speaking in public about the matters under review.
To the extent that ExxonMobil has substantive and procedural objections to the attorneys general demands for information, it has every right to raise those objections in the Massachusetts and New York state courts, and indeed ExxonMobil is already doing just that.
ExxonMobil now also faces an investigation from the U.S. Securities and Exchange Commission, initiated in August 2016, examining a similar set of issues. In addition, in January 2016, the U.S. Department of Justice, responding to a congressional request to investigate ExxonMobil, referred the matter to the FBI.
Meanwhile, U.S. Representative Lamar Smith (R-TX), chairman of the House Science Committee, has subpoenaed documents from Healey, Schneiderman, and other state attorneys general, as well as lawyers and outside groups connected to the ExxonMobil matter. Over the summer, Smith held a committee hearing regarding his demands. For the most part, the AGs, groups, and attorneys have declined to provide any information in response to the subpoenas.
UPDATE 12-14-16: The U.S. Court of Appeals for the 5th Circuit yesterday dismissed Healey's mandamus petition and motion for a stay of Judge Kinkeade's orders as moot, meaning overtaken by events. It's unclear how the 5th Circuit judges think Healey's claims are moot, when all Judge Kinkeade did was cancel the deposition of Healey set for December 13; he didn't expressly stop all the other discovery that was part of Healey's motion. However, when he cancelled the Healey deposition, Judge Kinkeade issued a separate order directing all parties to submit new briefs by January 4 on the issue of whether his court has personal jurisdiction over the two AGs -- suggesting he might be reconsidering issues in the case.
UPDATE 12-15-16: This morning Judge Kinkeade has issued a one-line order: "The Court hereby stays all discovery pending further order from this Court." Coupled with his order Monday cancelling Exxon's deposition of Attorney General Healey, this represents a dramatic reversal by Judge Kinkeade of his unusual prior rulings favoring ExxonMobil. The reversal came after Healey had petitioned the U.S. Court of Appeals to block Kinkeade's orders (and of course after Trump's nomination of Tillerson increased public scrutiny of the matter). But this could be only a temporary reversal while Judge Kinkeade reconsiders some of the legal issues, including whether he has jurisdiction over the AGs in the first place.
*This article also appears on Republic Report.
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{{{== note ccr 1st amend bs
desmog 4 24
fossil fuel interest groups have mobilized quickly to oppose a new rule issued by the Biden administration designed to speed up America’s transition to hybrid and electric vehicles.
The rule, which the U.S. Environmental Protection Agency (EPA) finalized on March 20, limits emissions from tailpipes on new cars, starting in 2027.
Well before the EPA finalized the new standard, powerful corporate lobbies like the American Fuel & Petrochemical Manufacturers (AFPM) had already promised to spend at least a million dollars campaigning against the rule by falsely portraying it as a “ban” on new cars. The group’s
warn viewers that their freedoms and choices “will soon be taking a back seat to big government.”
The EPA predicts that the change would result in around two-thirds of new vehicle sales being hybrid or electric by 2032 — up from around eight percent today.
Beyond stopping more than 7 billion tons of carbon pollution, the agency predicts that the rule could save drivers more than $60 billion in fuel and maintenance costs, according to an EPA fact sheet that accompanied the final rule. The pollution reduction benefits would particularly benefit Black and brown communities because they are disproportionately likely to suffer from air pollution.
“These strongest-ever pollution standards for cars solidify America’s leadership in building a clean transportation future and creating good-paying American jobs,” EPA administrator Michael S. Regan said in a statement.
Compared to the EPA’s initial proposal, the final rule was scaled back to give car manufacturers more time to comply, but the New York Times still described the new standard as “one of the most significant climate regulations in the nation’s history.”
The heads of AFPM and the American Petroleum Institute (API) — the leading trade group for the oil and gas industry — declared in a joint statement that the rule “will unequivocally eliminate most new gas cars and traditional hybrids from the U.S. market in less than a decade.”
In February, AFPM had already begun portraying the rule as a “car ban” and announced a “seven-figure issue campaign” featuring TV and digital ads, as well as billboards and text messages. Some of the efforts target electoral swing states, including Michigan, Wisconsin, and Pennsylvania. The group also launched a website that warns readers, in all caps, to “keep the government’s hands off our cars!”
Despite the industry’s attempt to misleadingly brand the new standard, “this is not a ban of internal combustion engines,” Margaret Wooldridge, a professor of mechanical engineering at the University of Michigan, said in a statement.
Last year, AFPM spent nearly $7 million lobbying the federal government — more than any year in its history — according to OpenSecrets.
The top two bills the group reported lobbying for are designed to prevent the EPA from finalizing or enforcing vehicle emissions standards. Both bills passed the House last year. (Chevron, API, Koch Industries, and Marathon Petroleum are among the other industry groups and companies that lobbied for these bills last year.)
In addition to lobbying Congress and running million-dollar public influence campaigns, corporate trade groups have increasingly used lawsuits and the threat of costly, time-consuming litigation to stop or delay climate-related regulations.
Earlier this month, for instance, the U.S. Securities and Exchange Commission (SEC) finalized a long-delayed rule that requires public companies to disclose some of their emissions and climate risks that could impact their businesses. While the published rule was substantially weaker than what the SEC originally proposed, the U.S. Chamber of Commerce was among a handful of conservative interest groups that immediately challenged the measure in court.
Another recent EPA rule targeting methane emissions also met with opposition from Republican officials and oil and gas interests, according to Politico.
And on March 6, barely a month after the EPA finalized a separate rule limiting soot pollution, API, the National Association of Manufacturers, and the Chamber were among eight trade groups that sued the agency in the D.C. Circuit court.
‘Prepared to challenge it in court’
In a blog post, AFPM claims that the EPA “does not have authority to overhaul the U.S. economy or transportation system or compel — directly or otherwise — the use of EVs to address vehicle emissions.”
Similar objections to the authority of federal agencies to issue regulations have found a receptive audience among the Supreme Court’s conservative majority.
If the EPA doesn’t undo the tailpipe emissions rule, “our organizations are certainly prepared to challenge it in court,” the AFPM and API CEOs said in the joint statement that followed the announcement.
In attacking the rule, corporate interest groups like AFPM are following a well-trod path of fighting new climate regulations on every playing field they can find.
During the Trump administration, AFPM helped lead a successful effort to weaken previous EPA fuel efficiency standards. The group helped marshal Republican governors to advocate for the rollback, while also supporting Energy4US, a front group that encouraged Americans to flood the EPA with public comments, as DeSmog previously reported.
“One of the big advantages that oil industry lobbyists like AFPM have is money, and AFPM certainly isn’t afraid to use it,” Jesse Coleman, a senior researcher at the investigative outlet Documented, told DeSmog in an email.
“Million dollar ad campaigns are an unfortunately common way for groups like AFPM to pressure legislators and regulators by raising the political temperature on an issue. Litigation slows things further, leading to years of delays in implementation.”
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REF DESMOG
March 21 (Reuters) - A U.S. judicial panel on Thursday consolidated at least nine lawsuits challenging the U.S. Securities and Exchange Commission's new rules requiring public companies to report climate-related risks in a venue favored by Republican-led states and a business group.
The St. Louis-based 8th U.S. Circuit Court of Appeals was chosen randomly via a lottery and will consider the legal challenges to the landmark rule, which aims to standardize public company disclosures about greenhouse gas emissions, weather-related risks and how they are preparing for the transition to a low-carbon economy.
The court, which has 10 Republican-appointed active judges and one appointed by a Democratic president, was the venue where nine Republican-led states including Iowa, Montana and North Dakota and the business lobbying group American Free Enterprise Chamber of Commerce filed their challenge.
Representatives for the Republican-led states and industry challengers did not immediately respond to requests for comment. The SEC declined to comment.
First proposed in 2022, the rules are part of Democratic President Joe Biden’s efforts to leverage federal agency rulemaking to address climate change threats.
They were approved by the SEC on March 6, and the first lawsuit seeking to block them was filed later that day.
The consolidated lawsuits include challenges filed by at least 25 Republican-led states, energy industry companies and business groups, including the U.S. Chamber of Commerce, the nation's largest business lobby, seeking to overturn the rules.
They have argued, among other things, that the disclosure requirements amount to back-door environmental regulations that go beyond the SEC’s legal authority.
Challengers on the other side of the issue like the environmental organization the Sierra Club and Natural Resources Defense Council have meanwhile said the rules do not go far enough to protect investors, and arbitrarily stripped the final version of stronger reporting requirement rules.
Representatives for the environmental groups said they look forward to arguing before the court.
The conservative-dominated 5th Circuit, the court where Texas and energy companies filed their challenges, temporarily paused the rules from going into effect on Friday.
The SEC is expected to ask the 8th Circuit to revisit that ruling. It had told the 5th Circuit a pause was unnecessary, since the rules have extended compliance deadlines that do not require disclosures before March 2026.}:
The agency has also said the rules "fit comfortably within" its authority to require disclosure of information important to investors, and that they would provide "consistent, comparable and reliable information" about climate risks.
The nine lawsuits were filed in six appeals courts. The 8th Circuit had previously set a deadline for the challengers who sued in that court to file their opening brief in May.
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REF
March 6 (Reuters) - Ten Republican-led states have sued to challenge new federal rules that require U.S.-listed companies to report climate-related risks, a spokesperson for the West Virginia Attorney General's Office said on Wednesday, hours after the U.S. Securities and Exchange Commission approved the rules.
The states, which also include Georgia, Alabama and Alaska, filed the petition at the Atlanta-based 11th U.S. Circuit Court of Appeals, according to the spokesperson. The rules aim to standardize climate-related company disclosures about greenhouse gas emissions, weather-related risks and how they are preparing for the transition to a low-carbon economy.
The Sierra Club environmental group, meanwhile, said it was considering suing the SEC because it believed the new rules did not go far enough.
The SEC, Wall Street’s top regulator, said the information would give investors reliable information about financial risks companies face related to climate change.
An SEC spokesperson said in a statement that the agency crafts rules that are consistent with its legal authority, and that it will "vigorously defend" the climate disclosure rules in court.
First proposed in 2022, the rules are part of Democratic President Joe Biden’s efforts to leverage federal agency rulemaking to address climate change threats. Similar disclosure requirements have been adopted in Europe and in California.
West Virginia Attorney General Patrick Morrisey on Wednesday said during a press conference that the Biden administration is trying to act as a "puppeteer" using public companies to drive forward its climate agenda.
Republican-led states had been signaling their intent to challenge the rules for years, arguing in public comments in 2022 that they amount to back-door environmental regulations that go beyond the SEC’s legal authority.
They claimed then the rules would require companies to create, gather and disclose a “crushing” amount of material that goes well beyond the finance-based disclosures that investors need.
Anticipating legal challenges, the Biden administration had dropped more ambitious elements of the rules requiring companies to disclose “Scope 3” emissions, indirect emissions by suppliers or customers.
For many businesses, Scope 3 emissions account for 70% of their carbon footprint, according to the consulting firm Deloitte.
The final SEC rules also allow larger companies to determine whether emissions from their own operations and the power they purchase constitute information investors need to make decisions.
Morrisey said that despite changes to the proposed rule, the finalized rule was still defective and unconstitutional.
The Sierra Club, one of the largest environmental advocacy groups in the U.S., said in a statement it was considering filing a lawsuit to challenge the SEC's decision to remove the more robust reporting requirements. The group said it would also defend the SEC's legal authority to issue and implement the rules.
In California state court, litigation has been already been filed by business groups including the U.S. Chamber of Commerce challenging that state’s climate disclosure laws, which include Scope 3 emissions disclosure requirements. That lawsuit filed in January said the state’s laws will impose “massive” costs on businesses and violate free speech protections in the U.S. Constitution by compelling the disclosures.
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May 16th, 2024
|
Warren’s Consumer Protection Agency Saved In New SCOTUS Decision—Authored By Thomas
//
The Fifth Circuit Is In For A Beatdown
Thursday’s Supreme Court decision validating the constitutional soundness of the Consumer Financial Protection Bureau not only reversed the Fifth Circuit, but did so via one of the appellate court’s brothers-in-ideological-arms, Clarence Thomas.
The argument against the CFPB, targeting its funding structure, was weak enough that only Justices Samuel Alito and Neil Gorsuch had the appetite to embrace it.
Doily-like arguments are no impediment either to the mostly right-wing judges on the Fifth Circuit, some of whom are openly auditioning for maybe future President Donald Trump’s SCOTUS shortlist.
This trend is likely to continue. Two high-profile cases coming down the pike — one on whether people under domestic-violence restraining orders can have guns, and one on reimposing restrictions on the abortion drug mifepristone — saw even the right-wing justices squirm during oral arguments. If it acts on those instincts, the Court would reverse the Fifth Circuit twice more.
Death, taxes, think pieces tripping over themselves to credit the Court for its moderation. While there will inevitably be columns written by people making a lot more money than I am about how this rash of cases represents some great, cloak-swathed pivot to the center, it just doesn’t. The Supreme Court repeatedly overturning the Fifth Circuit is much more about the extremity of the latter than the reasonableness of the former.
Some members of the bench’s right flank still care about the appearance of impartiality. They still get puffed up and sputtery when even right-wing litigants bring them transparently stupid arguments.
This dynamic is much rarer at the Fifth, a court populated with judges molded more in Alito’s image than John Roberts’.
If the Supreme Court does uphold a very thin layer of protection for victims of domestic violence, if it keeps mifepristone accessible as usual nationwide, those are causes for (muted) celebration. But don’t let anyone tell you it’s because the Court is getting better — the Fifth is just getting worse.
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an 11 23
After the 2020 redistricting cycle, a set of local political maps stood out to voting rights advocates and the U.S. Department of Justice: Galveston County, Texas. Now, the lawsuit over those maps has taken an interesting twist, and it highlights the way long standing legal precedents are under challenge right now.
First, the backstory: Galveston County used redistricting to break up the sole majority-minority district for its commissioners court, thrusting Black and Latino voters into majority-white districts where they would have no real opportunity to elect their candidates of choice. The lawsuit over Galveston County’s redistricting became the first local redistricting case this cycle to prompt the U.S. Department of Justice to intervene.
Last month, the plaintiffs won a decisive victory. A federal judge ruled the county’s redistricting violated the Voting Rights Act, and, in a 157-page ruling, made clear it wasn’t an especially close call.
“This is not a typical redistricting case. What happened here was stark and jarring,” wrote the U.S. District Court Judge Jeffrey Brown, a former state Supreme Court justice who was nominated to the federal bench in 2019 by former President Donald Trump. “Looking at the totality of the circumstances, it was a clear violation of § 2 of the Voting Rights Act. And it must be overturned.”
Brown ordered new maps in Galveston. The county — predictably — appealed, arguing it hadn’t violated the Voting Rights Act. And here’s where things get a little less predictable.
A three-judge panel on the U.S. Court of Appeals for the 5th Circuit, by most measures the most conservative appellate court in the country at the moment, unanimously affirmed Judge Brown’s ruling, finding it was correct under the law.
Brown also correctly abided by a precedent set by the 5th Circuit itself decades ago, in which the court decided that Black and Latino voters can be combined for the sake of the legal analysis, as long as they vote cohesively. In other words, if there aren’t enough Black voters or Latino voters, or voters of another protected class, to make up a majority of the district by themselves, they can be put together when plaintiffs can show their political interests align.
That’s what happened in Galveston. The panel of 5th Circuit judges acknowledged that plaintiffs met the tests to proceed with the lawsuit on behalf of what, in legal jargon, is referred to as a “coalition claim.”
But there’s a but.
The 5th Circuit panel, it turns out, isn’t so sure that the long-standing precedent was, in fact, decided correctly by the 5th Circuit, an issue Galveston had raised.
“[T]his panel is bound by it under the rule of orderliness,” they wrote, “But the court’s decisions in this respect are wrong as a matter of law.”
The panel affirmed the district court order, requiring new maps, but first, it wants to poll all the judges on the 5th Circuit to see if a majority want to hold what’s known as an en banc hearing, to revisit that decades-old precedent, “at the earliest possible date.”
So where does that leave the voters of Galveston County, who need new commissioner district maps pretty quickly, since the 2024 election is coming up fast?
“At the current moment, everything the district court said is stayed,” said Mark Gaber of the
Campaign Legal Center, who represents some of the plaintiffs in the case, though he said he expects the 5th Circuit to move relatively quickly. Still, he said, it’s hard to be sure what will happen.
“It’s not usual to see a six-page affirmance saying, ‘We wish we didn’t have to do this,’” he said, adding, “The facts are so clear-cut, the only way out is if the law doesn’t allow this.”
Michael Li of the Brennan Center for Justice at NYU Law, a redistricting expert, said the precedent is a straightforward one, and if the 5th Circuit decides to move forward with an en banc hearing, “it’s probably not a very good sign.”
Earlier this year, defying expectations, the Supreme Court issued a strong ruling upholding voting rights precedents in another voting rights case, this one out of Alabama. The decision was celebrated by voting rights advocates, but challenges to precedents haven’t ended. In addition to the Galveston case, for example, Louisiana last week signaled it plans to bring another challenge to the constitutionality of the Voting Rights Act in connection with its redistricting.
Li acknowledged the country is in a moment where voting rights laws and precedents are “potentially changing,” and points out the current Supreme Court is upending precedents in many areas. Just because the justices didn’t do so in the Alabama case doesn’t mean changes aren’t coming, in other words.
“You could do it in a big way,” he said, “or you could do it in death by a thousand cuts.”
Back Then
Want to read more about redistricting? Check out this 2012 article from the Atlantic, “The League of Dangerous Mapmakers,” for a look at how the process has been manipulated for centuries for political advantage....
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OMG
no lnx many
https://www.vox.com/scotus/23841718/edgelord-federal-judiciary-james-ho-fifth-circuit-abortion-guns
The edgelord of the federal judiciary
Imagine a Breitbart comments forum come to life and given immense power over innocent people. That’s Judge James Ho.
By Ian Millhiser Aug 26, 2023,
James Ho sits on a panel speaking as video of him is projected on a screen behind him at the Federalist Society’s 2022 National Lawyers Convention in Washington, DC.
Trump Judge James Ho speaks at a 2022 event hosted by the Federalist Society. Shuran Huang/Washington Post via Getty Images]
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.
If you could breathe life into 4chan, the dark corner of the Internet where shitposters, edgelords, Groypers, and trolls of all kinds thrive, and then appoint this new lifeform to the federal bench, you would have created Judge James Ho.
Ho, appointed by former president Donald Trump in 2018 to the United States Court of Appeals for the Fifth Circuit, recently argued that anti-abortion doctors may seek a court order banning a commonly prescribed abortion medication, because “doctors delight in working with their unborn patients — and experience an aesthetic injury when they are aborted.”
He’s written that a federal law prohibiting gun possession by people that a court has determined to be a “credible threat to the physical safety of [their] intimate partner” is unconstitutional. Among other things, Ho claimed that this law “should give us pause” because women getting a divorce sometimes seek such court orders as “a tactical leverage device” in their divorce proceedings.
Ho’s very first opinion as a judge, a dissenting opinion in a case he did not even hear, claimed that all laws limiting the amount that wealthy donors may give to political campaigns are unconstitutional.Under Ho’s understanding of the Constitution, nothing prevents Harlan Crow, the billionaire Republican donor famous for lavishing gifts on Justice Clarence Thomas, from funding an entire presidential campaign.
Also, speaking of Harlan Crow, Ho held his official ceremony swearing him in as a federal judge in Crow’s personal library.
Ho’s work, in other words, is often indistinguishable from that of a professional troll. He revels in taking deliberately provocative positions. He often joins a fairly extreme opinion written by a colleague, and then writes separately to take an even more extreme position. His judicial opinions mingle Fox News talking points, men’s rights activism, Federalist Society fantasies, and discredited legal doctrines that are now taught to law students to warn them of the Supreme Court’s worst mistakes.
Ho seems to never miss an opportunity to weigh in on a political controversy. When he’s not writing concurring opinions arguing that the Supreme Court should bring back the Lochner era, an age when conservative justices imposed their own laissez-faire ideology on the rest of the nation, he can often be found lecturing law schools on the evils of “cancel culture.”
(That said, Ho did not respond to a request to be interviewed for this piece.)
When I speak to other judges, I often hear them use a derisive word to describe this kind of behavior: “auditioning.” It’s an increasingly common practice among Republican judges itching for a promotion.
In his final years as a lower court judge, Justice Neil Gorsuch wrote several opinions laying out his plans to shift power from federal agencies to the judiciary — a high-priority issue for the Federalist Society, which played a key role in picking Trump’s judges and justices. These opinions reportedly “proved decisive” in the Trump White House’s decision to give Gorsuch a big promotion.
Similarly, in his final year as a lower court judge, Justice Brett Kavanaugh — who previously had a thin record on abortion — went out of his way to convey both in a published opinion and in a speech to a conservative think tank that he opposed Roe v. Wade. Trump picked Kavanaugh for the next seat to open up on the Supreme Court.
The most alarming thing about Judge Ho, in other words, isn’t his penchant for trolling. It is the very real possibility that he will be rewarded for it. No judge in America has auditioned harder for a Supreme Court appointment in a Republican administration. And, if the next president is Donald Trump, Trump has already shown that he prefers judges who go out of their way to show their loyalty to Republican causes.
What does Jim Ho’s version of the Constitution look like?
Lochner v. New York (1905) is one of a handful of decisions that legal scholars refer to as the “anti-canon” — a list of cases taught to law students as examples of how judges must never, ever behave. The list also includes the pro-slavery decision in Dred Scott v. Sandford (1857) and the segregationist decision in Plessy v. Ferguson (1896).
Ho wants to bring back Lochner.
Lochner stuck down a New York state law that limited, to 60 hours a week, the amount of time worked by bakery workers. At the time, these workers were typically paid by the day or by the week, so the law had prevented these workers from being forced to work extraordinarily long shifts for no extra pay.
Other cases applying Lochner’s reasoning struck down minimum wage laws and stripped workers of their right to unionize.
Lochner was grounded in what it described as the “right of the individual to ... enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family.” The idea was that, if a worker entered into a contract to work long hours for little pay, then the law could not alter this contract — even if the contract was itself the product of exploitation or desperation.
Lochner, in other words, not only stripped the government of much of its power to protect workers, it did so on the dubious ground that, by insisting that workers adhere to whatever exploitative employment contracts their bosses imposed upon them, the Court was actually defending the rights of those workers. The Court ultimately abandoned Lochner in West Coast Hotel v. Parrish (1937).
Ho picked an inauspicious case, Golden Glow Tanning Salon v. City of Columbus, to offer his love letter to Lochner. In it, a Mississippi tanning salon claimed that Covid era lockdowns violated the salon owner’s “right to work,” a common argument made by modern day libertarians who seek to revive Lochner. (A “right to work” is synonymous with Lochner’s so-called right to “enter into those contracts in relation to labor which may seem to him appropriate.”)
Though all three judges who heard Golden Glow agreed that the Supreme Court’s decisions repudiating Lochnerism prevented them from ruling in the tanning salon’s favor, Ho wrote a brief concurring opinion that relied heavily on scholarship by right-wing lawyers arguing that Lochner should be revived. He suggested that the anti-worker right recognized in Lochner has a “better historical grounding than more recent claims of right that have found judicial favor.” And he urged the Supreme Court to take up a pending case seeking to revive Lochner (the justices declined to do so).
Ho’s passion for the sorts of economic “rights” favored by Gilded Age robber barons is matched by his disdain for abortion. He wrote about the “moral tragedy of abortion” in one of his judicial opinions. And he’s urged his Fifth Circuit — which is already the most right-wing federal appeals court in the country, and is typically hostile towards reproductive freedom — to be even more aggressive in quashing abortion rights.
Just last week, for example, a three-judge panel that includes Ho attempted to ban the drug mifepristone, which is used in more than half of all US abortions. That decision will have no effect, because the Supreme Court preemptively blocked it last April — a pretty clear sign that even this very conservative Supreme Court thinks that the legal arguments against mifepristone are weak.
But Ho didn’t just join this attempt to ban the drug, in a case called Alliance for Hippocratic Medicine v. FDA,he wrote a separate opinion arguing that his colleagues were insufficiently hostile to abortion rights.
Technically, the Fifth Circuit’s majority opinion in Alliance did not purport to ban mifepristone outright, it merely ordered the FDA to reinstate restrictions on the drug that the agency abandoned in 2016. As a practical matter, this order would prevent the drug from being marketed in the United States for at least a few months, because it would take a long time for government regulators and the drug maker to comply with the pre-2016 rules. But Ho would have gone even further, ordering the FDA to rescind its decision to approve the medication way back in 2000.
There are so many errors in Ho’s legal reasoning that it would be tedious to list them all here. One of them is that the statute of limitations to challenge an FDA approval of a drug is six years. While there are legitimate reasons that time period can sometimes be extended, Ho can’t rescue a lawsuit that was filed more than two decades after mifepristone’s approval.
On guns, Ho joined the Fifth Circuit’s decision in United States v. Rahimi (2023), a decision the Supreme Court is likely to reverse in its upcoming term, holding that people who violently abuse their romantic partners or their partner’s child have a Second Amendment right to own a gun — even after a court proceeding determines that the abuser is “a credible threat to the physical safety of such intimate partner or child.”
Rahimi is another case where Ho joined an alarming decision written by one of his colleagues, and then wrote separately to argue for an even more extreme position.
Ho argues that one reason his court should be skeptical of a law seeking to disarm people subject to domestic violence restraining orders is that women who are not victims of abuse allegedly obtain these orders to “secure [favorable] rulings on critical issues such as [marital and child] support, exclusion from marital residence and property disposition.”
As evidence that this is a real problem that actually exists, Ho cites a handful of court decisions — including a 1993 decision by a court in New Jersey that invalidated a restraining order because of a lack of evidence that the man subjected to it was violent, and a 2005 incident where comedian David Letterman was briefly subject to a restraining order before a court tossed that order out.
The fact that Ho had to rely on decades-old cases in faraway jurisdictions to show that judges sometimes issue domestic violence restraining orders for invalid reasons is a sign that, maybe, this isn’t as big of a problem as Ho makes it out to be. Nevertheless, Ho would potentially arm hundreds of men who have murderous intentions in order to save someone like Letterman from having to go without a firearm for a couple of weeks.
Ho could be the future of the federal judiciary
Ho’s penchant for tacking to the right of his already quite reactionary colleagues marks him as an outlier, even within a conservative federal judiciary. But he’s hardly an extreme outlier, especially on the far-right Fifth Circuit.
In Collins v. Mnuchin (2019), for example, Ho signed onto an opinion by Judge Don Willett that threatened to invalidate every single action taken by the Federal Housing Finance Agency (FHFA), which was created in 2008 to stabilize the US housing market during a historic recession. Had Willett’s approach prevailed in the Supreme Court, it could have potentially collapsed the US housing market and triggered a global economic depression (the Supreme Court voted 8-1 against Willett’s approach).
Notably, however, Ho was one of a total of seven judges who signed onto Willett’s attempt to burn down more than a dozen years of work by a federal agency. There is no shortage of judicial arsonists on the Fifth Circuit.
Similarly, the Supreme Court will hear several cases in its upcoming term in which it is likely to reverse similarly aggressive decisions by the Fifth Circuit. Those most likely include the Alliance case about mifepristone, as well as the Rahimi guns case, and two decisions declaring the entire the Consumer Financial Protection Bureau unconstitutional and gutting the federal government’s power to enforce securities law.
The leading contenders for the Republican presidential nomination are already signaling that they want to pick justices who are well to the right of the three already very conservative justices Trump placed on the Supreme Court. In his infamous speech before the January 6 attack on the US Capitol, Trump said that he is “not happy with the Supreme Court” because they supposedly “love to rule against me.” (When Trump was president, the Court often manipulated its own procedures to rule in Trump’s favor, but the Court rejected his bid to overturn the 2020 election.)
Florida Gov. Ron DeSantis attacked Trump’s justices in June, claiming that “none of those three are at the same level of Justices Thomas and Justice Alito,” two justices who fairly consistently vote like Fifth Circuit judges.
Ho, meanwhile, is auditioning harder than anyone in the judiciary to catch Trump or DeSantis’s eye. And, even if the next Republican president decides to pick someone less flamboyant for the high court, they will have no shortage of candidates who are eager to light decades' worth of settled law — along with entire federal agencies — on fire.
ref the hill
federal judge blocked Bidenadministration officials Tuesday from communicating with social media companies, astwo Republican state attorneys general challenge the legality of the administration’s efforts to curb disinformation.
U.S. District Judge :{Terry Doughty,:(style="background-color:#ff9900;"):}: [~ vax for rx workers?! offshore oil]who was appointed by former President Trump, granted a preliminary injunction barring a wide swath of officials from theDepartment of Health and Human Services, the Centers for Disease Control and Prevention, the Department of Justice, the State Department and the FBI from communicating with the companies.
The Republican attorneys general of Louisiana and Missouri are suing the administration over what they describe as a “campaign of censorship,” in which the Biden administration allegedly “coordinated and colluded with social-media platforms to identify disfavored speakers, viewpoints, and content.”
They argued that administration officials’ public and private communications with social media companies about removing content related to COVID-19 vaccines and public health measures, election integrity and other topics violated the First Amendment.
The attorneys general pointed to various calls by the 2020 Biden campaign and later the Biden administration, as well other Democratic lawmakers, to reform Section 230 over the spread of disinformation, which the lawsuit characterized as “threats” and a “campaign of pressure.”
Section 230 waives social media companies’ liability for content posted on its platforms by third parties.
They also cited efforts by the Biden administration to work with social media companies to rein in COVID-19 and election disinformation, which the suit described as “collusion.” [fauci said deworm no work, tho no causal link]
Under the injunction, Biden administration officials cannot email, call, send letters, text or meet with social media companies “for the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms,” Doughty ruled.
However, Biden administration officials are still permitted to communicate with the platforms about criminal activity, national security threats,threats to public safety [but not health?]and posts “intending to mislead voters about voting requirements and procedures.”
TAGS BIDEN ADMINISTRATIONFIRST AMENDMENTFREE SPEECHJOE BIDENSOCIAL MEDIA PLATFORMSTERRY DOUGHTY
ballotpedia
United States District Court for the Western District of Louisiana is one of 94 United States district courts. When decisions of the court are appealed, they are appealed to the United States Court of Appeals for the Fifth Circuit, based in New Orleans, at the John Minor Wisdom Federal Courthouse.
The Western District of Louisiana has original jurisdiction over cases filed within its jurisdiction. These cases can include civil and criminal matters that fall under federal law.
The geographic jurisdiction of the Western District of Louisiana consists of all the following parishes in the western part of the state of Louisiana.[[10]](https://ballotpedia.org/Terry_A._Doughty#cite_note-10)
ref nyt
bing steal no lnx
G.O.P. Targets Researchers Who Study Disinformation Ahead of 2024 Election
A legal campaign against universities and think tanks seeks to undermine the fight against false claims about elections, vaccines and other hot political topics.
By Steven Lee Myers and Sheera Frenkel
June 19, 2023
On Capitol Hill and in the courts, Republican lawmakers and activists are mounting a sweeping legal campaign against universities, think tanks and private companies that study the spread of disinformation, accusing them of colluding with the government to suppress conservative speech online.
The effort has encumbered its targets with expansive requests for information and, in some cases, subpoenas — demanding notes, emails and other information related to social media companies and the government dating back to 2015. Complying has consumed time and resources and already affected the groups’ ability to do research and raise money,according to several people involved.
They and others warned that the campaign undermined the fight against disinformation in American society when the problem is, by most accounts, on the rise— and when another presidential election is around the corner. Many of those behind the Republican effort had also joined former President Donald J. Trump in falsely challenging the outcome of the 2020 presidential election.
“I think it’s quite obviously a cynical — and I would say wildly partisan — attempt to chill research,” said Jameel Jaffer, the executive director ofColumbia University’s Knight First Amendment Institute,an organization that works to safeguard freedom of speech and the press.
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The House Judiciary Committee, which in January came under Republican majority control, has sent scores of letters and subpoenas to the researchers — only some of which have been made public. It has threatened legal action against those who have not responded quickly or fully enough.
A conservative advocacy group led by Stephen Miller, the former adviser to Mr. Trump, filed a class-action lawsuit last month in U.S. District Court in Louisiana that echoes many of the committee’s accusations and focuses on some of the same defendants.
:{
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Targets include Stanford, Clemson and New York Universities and the University of Washington; the Atlantic Council, the German Marshall Fund and the National Conference on Citizenship, all nonpartisan, nongovernmental organizations in Washington; the Wikimedia Foundation in San Francisco; and Graphika, a company that researches disinformation online.
In a related line of inquiry, the committee has also issued a subpoena to the World Federation of Advertisers, a trade association, and the Global Alliance for Responsible Media it created. The committee’s Republican leaders have accused the groups of violating antitrust laws by conspiring to cut off advertising revenue for content researchers and tech companies found to be harmful.
A House subcommittee was created to scrutinize what Republicans have charged is a government effort to silence conservatives. Credit...Kenny Holston/The New York Times
The committee’s chairman, Representative Jim Jordan of Ohio, a close ally of Mr. Trump, has accused the organizations of “censorship of disfavored speech” involving issues that have galvanized the Republican Party: the policies around the Covid-19 pandemic and the integrity of the American political system, including the outcome of the 2020 election.
Much of the disinformation surrounding both issues has come from the right. Many Republicans are convinced that researchers who study disinformation have pressed social media platforms to discriminate against conservative voices.
[The Spread of Misinformation and Falsehoods
The Titanic Truthers of TikTok: On the app, long-established facts about the 1912 disaster are being newly litigated as musty rumors merge with fresh misinformation and manipulated content.
A Global Effort: A group of scholars introduced an international panel to study online misinformation, inspired by the way scientists documented the global effect of carbon emissions.
A Hub for Conspiracy Theories: The Denver airport is a magnet for tall tales inspired by the paranormal — and an experiment into whether, sometimes, institutional fabulism can just be fun.
Climate Lies: In 2021, Google said that it would stop running ads alongside content that denied climate change. But a report shows that one of its platforms, YouTube, has continued to profit from videos pushing misinformation on the topic.]
Those complaints have been fueled by Twitter’s decision under its new owner, Elon Musk, to release selected internal communications between government officials and Twitter employees. The communications show government officials urging Twitter to take action against accounts spreading disinformation but stopping short of ordering them to do, as some critics claimed.
Patrick L. Warren, an associate professor at Clemson University, said researchers at the school have provided documents to the committee, and given some staff members a short presentation. “I think most of this has been spurred by our appearance in the Twitter files, which left people with a pretty distorted sense of our mission and work,” he said.
Last year, the Republican attorneys general of Missouri and Louisiana sued the Biden administration in U.S. District Court in Louisiana, arguing that government officials effectively cajoled or coerced Twitter, Facebook and other social media platforms by threatening legislative changes.The judge, Terry A. Doughty, rejected a defense motion to dismiss the lawsuit in March.
The current campaign’s focus is not government officials but rather private individuals working for universities or nongovernmental organizations. They have their own First Amendment guarantees of free speech, including their interactions with the social media companies.
The group behind the class action, America First Legal, named as defendants two researchers at the Stanford Internet Observatory, Alex Stamos and Renée DiResta; a professor at the University of Washington, Kate Starbird; an executive of Graphika, Camille François; and the senior director of the Atlantic Council’s Digital Forensic Research Lab, Graham Brookie.
If the lawsuit proceeds, they could face trial and, potentially, civil damages if the accusations are upheld.
Mr. Miller, the president of America First Legal, did not respond to a request for comment. In a statement last month, he said the lawsuit was “striking at the heart of the censorship-industrial complex.”
The researchers, who have been asked by the House committee to submit emails and other records, are also defendants in the lawsuit brought by the attorneys general of Missouri and Louisiana. The plaintiffs include Jill Hines, a director of Health Freedom Louisiana, an organization that has been accused of disinformation, and Jim Hoft, the founder of the Gateway Pundit, a right-wing news site. The court in the Western District of Louisiana has, under Judge Doughty, become a favored venue for legal challenges against the Biden administration.
The attacks use “the same argument that starts with some false premises,” said Jeff Hancock, the founding director of the Stanford Social Media Lab, which is not a party to any of the legal action. “We see it in the media, in the congressional committees and in lawsuits, and it is the same core argument, with a false premise about the government giving some type of direction to the research we do.”
The House Judiciary Committee has focused much of its questioning on two collaborative projects. One was the Election Integrity Partnership, which Stanford and the University of Washington formed before the 2020 electionto identify attempts “to suppress voting, reduce participation, confuse voters or delegitimize election results without evidence.” The other, also organized by Stanford, was called the Virality Project and focused on the spread of disinformation about Covid-19 vaccines.
Both subjects have become political lightning rods, exposing the researchers to partisan attacks online that have become ominously personal at times.
In the case of the Stanford Internet Observatory, the requests for information — including all emails — have even extended to students who volunteered to work as interns for the Election Integrity Partnership.
A central premise of the committee’s investigation — and the other complaints about censorship — is that the researchers or government officials had the power or ability to shut down accounts on social media. They did not, according to former employees at Twitter and Meta, which owns Facebook and Instagram, who said the decision to punish users who violated platform rules belonged solely to the companies.
No evidence has emerged that government officials coerced the companies to take action against accounts, even when the groups flagged problematic content.
“We have not only academic freedom as researchers to conduct this research but freedom of speech to tell Twitter or any other company to look at tweets we might think violate rules,” Mr. Hancock said.
The universities and research organizations have sought to comply with the committee’s requests, though the collection of years of emails has been a time-consuming task complicated by issues of privacy. They face mounting legal costs and questions from directors and donors about the risks raised by studying disinformation. Online attacks have also taken a toll on morale and, in some cases, scared away students.
In May, Mr. Jordan, the committee’s chairman, threatened Stanford with unspecified legal action for not complying with a previously issued subpoena, even though the university’s lawyers have been negotiating with the committee’s lawyers over how to shield students’ privacy. (Several of the students who volunteered are identified in the America First Legal lawsuit.)
The committee declined to discuss details of the investigation, including how many requests or subpoenas it has filed in total. Nor has it disclosed how it expects the inquiry to unfold — whether it would prepare a final report or make criminal referrals and, if so, when. In its statements, though, it appears to have already reached a broad conclusion.
“The Twitter files and information from private litigation show how the federal government worked with social media companies and other entities to silence disfavored speech online,” a spokesman, Russell Dye, said in a statement. “The committee is working hard to get to the bottom of this censorship to protect First Amendment rights for all Americans.”
The partisan controversy is having an effect on not only the researchers but also the social media giants.
:{
}:
Twitter, under Mr. Musk, has made a point of lifting restrictions and restoring accounts that had been suspended, including theGateway Pundit’s. YouTube recently announced that it would no longer ban videos that advanced “false claims that widespread fraud, errors or glitches occurred in the 2020 and other past U.S. presidential elections.”
Steven Lee Myers covers misinformation for The Times. He has worked in Washington, Moscow, Baghdad and Beijing, where he contributed to the articles that won the Pulitzer Prize for public service in 2021. He is also the author of “The New Tsar: The Rise and Reign of Vladimir Putin.” @stevenleemyers • Facebook
Sheera Frenkel is a prize-winning technology reporter based in San Francisco. In 2021, she and Cecilia Kang published “An Ugly Truth: Inside Facebook's Battle for Domination.” @sheeraf
an raw 5 23 thom h
no lnx
you’ve probably never heard of Anthony Comstock, a Civil War Union soldier and New York Postmaster, who died in 1915. You need to learn about him and his legacy, however, as his long fingers are about to reach up out of the grave and wrap themselves around the necks of every American woman of childbearing years.
Anthony Comstock was a mama’s boy who hated sex. His mother died when he was 10 years old and the shock apparently never left him; women who didn’t live up to her ideal were his open and declared enemies, as were pornography, masturbation, and abortion. He was so ignorant of sex and reproduction that he believed a visible human-like fetus developed “within seconds” of sexual intercourse.
Comstock spent decades scouring the country collecting pornography, which he enthusiastically shared with men in Congress, and harassing “loose women.” For example, when he visited a belly-dancing show (then a new craze) in Chicago at the Cairo Theatre during the World’s Fair of 1893, he demanded the show be shut down.
As Amy Sohn, who wrote a brilliant Comstock biography titled The Man Who Hated Women, noted:
“Despite national controversy and Comstock’s intervention, ultimately the only alteration made to the fair’s belly dancing was costuming: the dancers swapped their gauze blouses for thin woolen undershirts. The vice hunter had lost in Chicago. But he would not forget the dancers, and would have four of them arrested and fined when they came to New York that winter. New York, after all, was Comstockland.”
Comstock lobbied for and shepherded through Congress a law passed on March 3, 1873 titled “An Act for the Suppression of Trade in, and Circulation of, obscene Literature and Articles of immoral Use.” Today we refer to it as the Comstock Act.
Its language with regard to abortion is not at all ambiguous:
“Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance … designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and
“Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose; and
“Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and
“Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and
“Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing—
“Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.” (emphasis mine)
The penalty is also not ambiguous. Persons mailing information about abortion, or drugs or devices to produce an abortion:
“[S]hall be fined under this title or imprisoned not more than five years, or both, for the first such offense, and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.”
The Biden administration argues that the Comstock Act of 1873 was set aside almost a century ago.
And, indeed, in 1930, the Appeals Court for the Second Circuit ruled in Youngs Rubber Corp. v. C.I. Lee & Co that the law couldn’t apply to things sent through the mail that are legal, even if they were illegal at the time of the passage of the Comstock Act. (The case involved condoms manufactured by Youngs Rubber.)
“Such a construction,” the court wrote, “would prevent mailing to or by a physician of any drug or mechanical device ‘adapted’ for contraceptive or abortifacient uses, although the physician desired to use or to prescribe it for proper medical purposes.”
The law has been amended by Congress four times (in 1955, 1958, 1971, and 1994), but the language above was never struck because legislators figured the appeals court’s ruling rendered it nugatory.
But don’t tell that to Trump’s appointee Texas District Judge Matthew Kacsmaryk of Amarillo, who ruled last month that Mifepristone was to be banned nationwide: he based a large part of his decision on the plain language of the Comstock Act.
And don’t tell it to the three rightwing judges hearing an appeal this week of Kacsmaryk’s decision before the Fifth Circuit Court of Appeals.
When the Biden administration’s attorney argued that Kacsmaryk’s decision was “unprecedented,”Circuit Judge James Ho — also a Trump appointee, who personally swore his good friend Kacsmaryk into his office — interrupted her with a curt snap, saying:
“I guess I’m just wondering why not just focus on the facts of this case rather than have this sort of ‘FDA can do no wrong’ theme.”
The appeals court, made up of a George W. Bush appointee and two Trump appointees, earlier had ruled in their preliminary finding to hear the case that they disagreed with the Biden administration’s assertion that, to quote the three judges, “the [Comstock] law does not mean what it says it means.”
When the Biden interpretation of the Comstock Act was brought up in oral arguments, the Bush appointee, Judge Jennifer Walker Elrod, said there is “some disagreement” about whether previous court rulings actually invalidated the law.
Republican members of Congress agree, and want the Comstock Act enforced nationwide.
In a letter sent to CVS (among other pharmacy chains), Mississippi Republican Senator Cindy Hyde-Smith and eight other Republican senators (Lankford, Daines, Braun, Rubio, Marshall, Risch, Crapo and Blackburn) wrote that the Biden interpretation (and that of Congress in 1955, 1958, 1971, and 1994) is wrong.
“We write to express our support and agreement with 21 State Attorneys General,” they wrote “who have reminded you that Federal law in 18 U.S.C. 1461-1462 [the Comstock Act] criminalizes nationwide using the mail, or interstate shipment by any express company or common carrier, to send or receive any drug that is ‘designed, adapted, or intended for producing abortion.’”
The 1930 court ruling that lawmakers and judges had, for over 90 years, believed only applied the Comstock Act to items that were illegal (like child porn), she wrote:
“[D]oes not protect CVS or any other individual or entity from being prosecuted within the five-year statute of limitations for the illegal mailing or interstate shipment of abortion drugs … even for conduct that occurs today.”
The lawyer for Republicans defending Kacsmaryk’s ruling before the Fifth Circuit, Erin Hawley (the wife of Missouri Republican Senator Josh Hawley), went so far as to assert before the court that even physicians and pharmacies shouldn’t be able to receive Mifipristone or other drugs that could produce an abortion via the mail, FedEx, or UPS:
“What the Comstock law says is that it is improper to mail things that induce or cause abortions, which is precisely the action the FDA took in 2021 when it permitted the mailing of abortion drugs.”
If Hawley’s interpretation is ultimately adopted by the Supreme Court, all abortions in the United States would be ended when drugs and suction and surgical devices designed specifically for the procedure can no longer be shipped to hospitals, clinics, or physicians’ offices.
And this is no idle threat.
Given how all three judges on the Fifth Circuitreacted to this week’s arguments, most court observers believe they’ll vote to sustain Judge Kacsmaryk’s ruling and ban Mifipristone nationwide, perhaps even outlawing its legal shipment to pharmacies for other uses like helping with incomplete miscarriages.
Other drugs and surgical devices used for abortions are almost certainly next.
As Washington Post reporter Dan Diamond wrote for his Substack newsletter, anti-abortion activist Mark Lee Dickson, who’s helped several cities around the country put into law local versions of the Comstock Act, told him:
“If a future president were to enforce these federal statutes, then they could shut down every abortion facility in America.”
Such a ruling by the Fifth Circuit will kick the whole mess up to the Supreme Court, where six hardcore rightwing Catholics (Gorsuch attends his wife’s church but was raised Catholic) are gleefully rubbing their hands in anticipation.
This battle promises to be long and hard-fought, and if the Supreme Court rules in favor of the Fifth Circuit’s anticipated decision the only solution will be for Congress to overturn the Comstock Act itself.
And that’s unlikely to happen unless or until Democrats can take back the House, hold the White House, and gain a filibuster-proof majority in the Senate in the 2024 election. The stakes couldn’t be higher.
Several states are now stockpiling Mifipristone in anticipation of just such a dystopian outcome. Families with women and girls of childbearing age may want to do the same.
Forewarned is forearmed.
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an 2 23
During his passionate and very focused 2023 State of the Union address on Tuesday night, February 7, President Joe Biden slammed Republicans for their efforts to "sunset" Social Security and Medicare. Biden was referring specifically to a proposal by Sen. Rick Scott (R-Florida), who has called for dramatic changes to the way in which those programs are funded. Instead of perpetual funding, Scott has called for Social Security and Medicare to "sunset" in five years.
The Florida senator’s exact words were: "In my plan, I suggested the following: All federal legislation sunsets in five years. If a law is worth keeping, Congress can pass it again."
But in an article published by Slate on February 9, journalist Mark Joseph Stern emphasizes that Republicans have a tool other than Congress for attacking Social Security and Medicare: the federal courts.
Stern explains, “Recently, the 5th U.S. Circuit Court of Appeals crafted a theory that would empower courts to strike down mandatory spending on federal programs, compelling Congress to either reappropriate the money or let the programs die. This radical and anti-democratic reading of the Constitution would threaten Medicare, Medicaid, Social Security, the Affordable Care Act, unemployment benefits, child nutrition assistance, and so much more. Democrats and Republicans would be foolish to ignore the rebellion against federal spending that’s brewing in the 5th Circuit."
The Slate reporter notes that the "conservative assault on entitlement programs" came up during "litigation against" the Consumer Financial Protection Bureau (CFPB), an agency created in 2010 during President Barack Obama’s first term. Judge Cory Wilson and two other Donald Trump-appointed federal judges, Stern points out, "revoked the CFPB’s ability to issue or enforce any regulations."
"You might wonder: What does this skirmish over a small financial agency have to do with hundreds of billions of dollars in annual entitlement spending?" Stern argues. "The answer: everything. In her concurrence,(Judge Edith) Jonestook pains to clarify that her reasoning was notlimited to the CFPB. Jones announced that all “appropriations to the executive must be temporally bound.’
Seven 5th Circuit judges, according to the journalist "have now endorsed the notion that courts must strike down appropriations that allow ‘perpetual funding’ of government agencies or programs."
READ MORE:**'Why put seniors through that?' Chuck Todd grills Rick Scott over potential Social Security cuts**
"If their view becomes the law of the land," Stern warns, "it will empower courts to abolish trillions of dollars in entitlement spending. Why? Because today two-thirds of annual federal spending is 'mandatory' — including some of our nation’s most beloved social safety net programs…. Elected Republicans may have backed away from slashing Social Security and Medicare, likely because it would be incredibly unpopular. But the firebrands they put on the bench are entirely unaccountable to the voters, and their campaign to write Scott’s ideas into the Constitution cannot be stopped by any election."
READ MORE: The GOP is coming for your Social Security and Medicare
Read Mark Joseph Stern’s full Slate article at this link.
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xian legal shop set up in tx city b/c he only judge amarillo? feeds into friendly 5th circuit
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https://www.alternet.org/supreme-court-abortion-2659833629/
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Career
After graduating from law school, Howas a law clerk to Judge Jerry Edwin Smith of the United States Court of Appeals for the Fifth Circuit from 1999 to 2000.[1] He was in private practice in Washington, D.C., from 2000 to 2001.[1] He then joined the U.S. Department of Justice, first in the Civil Rights Division (2001) and then in the Office of Legal Counsel (2001–2003).[1] During his time at the Office of Legal Counsel, Ho authored a memo that defended the legality of enhanced interrogation techniques.[4] He was chief counsel to subcommittees of the Senate Judiciary Committee from 2003 to 2005[1] under Republican Senator John Cornyn.[5] He was then a law clerk to United States Supreme Court Justice Clarence Thomas from 2005 to 2006.[1] Ho was in private practice in Dallas, Texas from 2006 to 2008 and 2010 to 2017.[1] From 2008 to 2010, he was solicitor general of Texas in the Office of the Attorney General of Texas,[1] replacing Ted Cruz in that position.[5] As Texas solicitor general,Ho led the state's lawsuits against the Obama administration.[5]
Ho has worked as a volunteer attorney with the First Liberty Institute, a religious legal advocacy organization.[6][7] He has held multiple positions as a member of the Federalist Society since 1996.[8]
In a 2006 law review article published in The Green Bag, Ho wrote that "Birthright citizenship is guaranteed by the Fourteenth Amendment. That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers."[9][10] In a 2011 op-ed published in the Wall Street Journal, Ho wrote that "Opponents of illegal immigration cannot claim to champion the rule of law and then, in the same breath, propose policies that violate our Constitution."[10][11]
Federal judicial service
On September 28, 2017, President Donald Trump announced his intent to nominate Ho as a Circuit Judge to an undetermined seat on the United States Court of Appeals for the Fifth Circuit.[12] Cruz had promoted Ho as a candidate for a vacancy on the court.[12] On October 16, 2017, Trump sent Ho's nomination to the Senate. He was nominated to the seat vacated by Judge Carolyn Dineen King, who took senior status.[13] On November 15, 2017, a hearing on his nomination was held before the Senate Judiciary Committee.[14] On December 7, 2017, his nomination was reported out of committee by a 11–9 vote.[15] On December 14, 2017, the full United StatesSenate voted 53–43 to confirm Ho's nomination.[16] He received his judicial commission on January 4, 2018.
In July 2018, Carrie Johnson of NPR wrote that "Ho has shaken up the staid world of appellate law by deploying aggressive rhetoric in cases involving guns, abortion rights and campaign finance regulations." Johnson wrote that "critics say Ho is writing op-ed columns, not legal opinions ... Friends and former colleagues said he's an intellectual engaging with ideas." In a judicial opinion, Ho said the current "government ... would be unrecognizable to our Founders"; in another he wrote of the First Amendment "right[s] of ... bishops to express their profound objection to the moral tragedy of abortion".[5]
On September 9, 2020, Trump included Ho on a list of potential nominees to the Supreme Court.[17]
Notable opinions
On April 18, 2018, in his first written opinion as a Fifth Circuit judge, Ho dissented from a denial of a rehearing en banc in a case regarding a limit on campaign contributions. The Fifth Circuit three-judge panel upheld the constitutionality of a City of Austin ordinance setting an individual campaign contribution limit of $350 per election for candidates for mayor and city council, rejecting the plaintiff's claim that the limit violated the First Amendment. In his dissent, Ho argued the court "should have granted rehearing en banc and held that the Austin contribution limit violates the First Amendment" and asserted that "if there is too much money in politics, it's because there's too much government."[18][19][20]
Ho described abortion as a "moral tragedy" in one of his rulings which upheld a Texan law that required abortion facilities to bury or cremate fetal remains.[21]
On 2020, Ho was a member of a panel that stayed a preliminary injunction entered by U.S. District Judge Fred Biery that expanded the right to use a mail-in ballot to all Texas voters during the ongoing COVID-19 pandemic (allowing broader use of mail-in voting than under the Texas Election Code, which entitled only Texas voters over age 65 to vote absentee without an excuse). Ho wrote a separate concurring opinion favoring the state officials.[22][23][24][25][26]
In 2020, Ho wrote a concurring opinion in another voting rights case, involving a challenge to Texas Governor Greg Abbott's order restricting the number of drop-off locations for mail-in ballot to one per county. Abbott's order closed dozens of drop-off locations in populous, heavily Democratic urban areas in Texas. The order was challenged by civil rights groups, and the district court held that the order violated the constitutional right to vote. Ho joined a Fifth Circuit order that stayed the district court's ruling and held that the governor's order did not infringe the right to vote. In a concurring opinion, Ho wrote that Texas election law should not be "rewritten" by "executive fiat" or "judicial fiat."[27][28][29]
On April 9, 2021, Ho dissented when the 5th Circuit refused to hear en banc on a case regarding the Certification Rule used to help implement the Affordable Care Act.Ho and four other judges would have struck down the Certification Rule.[30]
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no lnx an 11 21
'Pro-death cult strikes back': Right-wing judges block Biden’s vaccine rule for big companies
Kenny Stancil and Common Dreams November 08, 2021
Progressives concerned about workplace safety and public health responded with dismay after a federal appeals court on Saturday temporarily blocked the Biden administration's attempt to require workers at companies with 100 or more employees to be vaccinated against Covid-19 or tested weekly.
Citing "grave statutory and constitutional" problems with the rule, a three-judge panel from the U.S. Court of Appeals for the Fifth Circuit issued the stay in response to a joint petition filed Friday by a coalition of businesses, conservative advocacy groups, and the states of Texas, Louisiana, Mississippi, South Carolina, and Utah.
That legal challenge, and separate lawsuits from Republican-led states, came just one day after President Joe Biden announced that the Occupational Safety and Health Administration (OSHA) would begin enforcing its newly unveiled Emergency Temporary Standard (ETS) in the coming weeks. Companies with at least 100 employees have until December 5 to require unvaccinated workers to wear masks indoors, and by January 4, they must require vaccinations or administer weekly tests.
Decrying the decision of the "right-wing Fifth Circuit," labor journalist Steven Greenhouse said on social media that "it's terrible for worker safety and public health that three conservative activist judges have suspended Biden's... new rule requiring workers at companies with more than 100 workers to get vaccinated or tested."
"OSHA's mission is to protect workers' health," Greenhouse continued, "but the appellate judges seem to forget that Covid has killed thousands of meatpacking, retail, and other workers."
More than 750,000 people in the U.S. have died from Covid-19 since the pandemic started last March, and the disease continues to kill nearly 1,100 people per day, most of them unvaccinated, according to the U.S. Centers for Disease Control and Prevention (CDC).
Recent studies confirm that vaccines save lives.Last month, the U.S. Department of Health and Human Services analyzed the relationship between county-level inoculation rates and Covid-19 outcomes among U.S. seniors and found that vaccines helped ward off 265,000 infections, 107,000 hospitalizations, and 39,000 deaths during the first five months of 2021.
And in September, CDC researchers found that individuals in the U.S. who were not fully vaccinated last spring and summer were 11 times more likely to die after being infected with the coronavirus—and over 10 times more likely to be hospitalized—than those who were fully inoculated.
Greenhouse said that "the judges evidently sympathize with [Texas Republican Gov.] Greg Abbott's let-people-die stance—that it'soverreachfor OSHA to act strongly to protect workers from Covid."
David Michaels, a leader of OSHA during the Obama administration, also rebuked the federal appeals court, describing its decision as legally dubious and politically motivated.
"The same activist court that refused to stay Texas' law that permits bounty hunters to sue anyone who aids an abortionafter six weeks of pregnancy has stayed an OSHA rule that is clearly within OSHA's authority, will save lives, and make workplaces safe," he told the New York Times.
According to the Times, "At the core of the legal challenge is the question of whether OSHA exceeded its authority in issuing the rule and whether such a mandate would need to be passed by Congress."
The newspaper reported:
The suit against the mandate stated that President Biden "set the legislative policy" of substantially increasing the number of Americans covered by vaccination requirements, and "then set binding rules enforced with the threat of large fines."
"That is a quintessential legislative act—and one wholly unrelated to the purpose of OSHA itself, which is protecting workplace safety," the suit said. "Nowhere in OSHA's enabling legislation does Congress confer upon it the power to end pandemics."
Corporate executives asked, and the Biden administration agreed, to delay implementation of OSHA's new ETS "until after the New Year, citing concerns about worker shortages during the important holiday season," Reuters noted.
Solicitor of Labor Seema Nanda, meanwhile, said in a statement that the Labor Department, home to OSHA, is "confident in its legal authority" to issue vaccine requirements.
The vaccine rule for companies with 100 or more employees "applies to 84.2 million workers at 1.9 million private-sector employers," Reuters reported. "OSHA estimates that 31.7 million of [those] workers are unvaccinated and 60% of employers will require vaccinations, up from 25% today, resulting in another 22.7 million employees getting vaccinated."
Several million additional workers are covered by the Biden administration's vaccine mandate for employees of the executive branch, federal contractors, and staff at healthcare facilities that accept Medicare or Medicaid funding. OSHA officials say they are considering expanding the jab-or-test rule to include companies with fewer than 100 workers.
"The Occupational Safety and Health Act explicitly gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them," Nanda said. "We are fully prepared to defend this standard in court."
The Fifth Circuit panel's two-page order directs the Biden administration to respond to the request for a permanent injunction against the rule by 5 p.m. ET Monday.
As the Times noted, it remains unclear whether the court's stay "would be a procedural blip for the Biden administration or the first step in the unwinding of the mandate."
The newspaper explained that "after both sides have filed briefs, the court will decide whether to lift the temporary injunction, allowing the rule to proceed as planned, or whether to grant a permanent injunction. OSHA could then take the case to the Supreme Court."
While some legal experts argue that the Labor Department has the regulatory authority to compel private employers to protect the health of workers and the broader public through mandatory vaccination amid a deadly global pandemic,Josh Blackman, a professor at South Texas College of Law Houston, told Reuters that "there will be so much litigation it will never see the light of day."
Twenty-four attorneys general threatened to sue the Biden administration over the rule back in September, and several followed through immediately after it was published in the federal register on Friday.
In addition to the petition filed with the Fifth Circuit, attorneys general in 11 states—Alaska, Arizona, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming—filed a lawsuit in the U.S. Court of Appeals for the Eighth Circuit.
And in the U.S. Court of Appeals for the Eleventh Circuit, the states of Alabama, Florida, and Georgia sued, with Florida Republican Gov. Ron DeSantis saying at a press conference that "the federal government can't just unilaterally impose medical policy under the guise of workplace regulation."
Roughly 70% of U.S. adults are fully inoculated against Covid-19, and about 80% have received at least one shot, according to the CDC. Recent polling shows that a majority of U.S. adults favor Covid-19 vaccination requirements, with only about one-fifth to one-quarter of respondents opposed.
OSHA, Reuters pointed out, is "fighting history. The agency has issued 10 ETS over its 50 years. Of the six that were challenged in court, only one survived entirely intact."
Donald Verrilli, U.S. solicitor general during former President Barack Obama's administration, however, told the news outlet that the Biden administration "wouldn't move forward unless they thought that they could defend it legally... I think the constitutional challenges are all going to fail."
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5th U.S. Circuit Court of Appeals at New Orleanson Saturday granted an emergency motion to stay the federal government’s vaccine mandate for larger employers pending expedited judicial review.
The 5th Circuit acted in a suit by several companies and the states of Texas, Louisiana, Mississippi, South Carolina and Utah.
The New York Times, the Washington Post and Reuters are among the publications covering the 5th Circuit stay. How Appealing links to the 5th Circuit’s Nov. 6 order.
The court said it granted the stay because the plaintiffs’ petitions “give cause to believe there are grave statutory and constitutional issues” with the vaccine mandate.
Missouri and 10 other Republican-led states have filed a separate challenge before the 8th Circuit at St. Louis,according to prior New York Times coverage and Bloomberg Law.
Three states led by Florida also filed a challenge in the 11th Circuit at Atlanta, and seven states led by Kentucky filed a challenge in the 6th Circuit at Cincinnati.
The Occupational Safety and Health Administration had released the rule Thursday. It requires businesses with more than 100 employees to require workers to get vaccinated or to wear a face mask indoors and test negative for COVID-19 on a weekly basis.
The rule says unvaccinated workers must begin wearing masks by Dec. 5 and workers must complete their vaccine regimen by Jan. 4.
The OSHA enacted the rule as an “emergency temporary standard” needed to protect employees from danger.
The 5th Circuit plaintiffs contend that the rule is “a quintessential legislative act—and one wholly unrelated to the purpose of OSHA itself, which is protecting workplace safety,” according to suit coverage by the New York Times.
The 5th Circuit per curiam order was signed by U.S. Circuit Judges Edith Jones, Kyle Duncan and Kurt Engelhardt.
https://www.ca5.uscourts.gov/about-the-court/fifth-circuit-judges
Chief Judge **Priscilla R. Owen**
Born 1954 in Palacios, TX
Federal Judicial Service:
Judge, U.S. Court of Appeals for the Fifth Circuit
Nominated by George W. Bush on February 14, 2005, to a seat vacated by William L. Garwood. Confirmed by the Senate on May 25, 2005, and received commission on June 3, 2005. Served as chief judge, 2019-present.
Education:
Baylor University, B.A., 1975
Baylor University School of Law, J.D., 1977
Professional Career:
Private practice, Houston, Texas, 1978-1994
Justice, Supreme Court of Texas, 1995-2005
Member, Judicial Conference of the United States, 2019-present
Other Nominations/Recess Appointments:
Nominated to U.S. Court of Appeals for the Fifth Circuit, May 9, 2001; no Senate vote
Nominated to U.S. Court of Appeals for the Fifth Circuit, September 4, 2001; no Senate vote
Nominated to U.S. Court of Appeals for the Fifth Circuit, January 7, 2003; no Senate vote
Born 1949 in Philadelphia, PA
Federal Judicial Service:
Judge, U.S. Court of Appeals for the Fifth Circuit
Nominated by Ronald Reagan on February 27, 1985, to a new seat authorized by 98 Stat. 333. Confirmed by the Senate on April 3, 1985, and received commission on April 4, 1985. Served as chief judge, 2006-2012.
Education:
Cornell University, B.A., 1971
University of Texas School of Law, J.D., 1974
Professional Career:
Private practice, Houston, Texas, 1974-1985
Member, Judicial Conference of the United States, 2006-2012
Other Nominations/Recess Appointments:
Nominated to U.S. Court of Appeals for the Fifth Circuit, September 17, 1984; no Senate vote
Born 1972 in Baton Rouge, LA
Federal Judicial Service:
Judge, U.S. Court of Appeals for the Fifth Circuit
Nominated by Donald J. Trump on January 8, 2018, to a seat vacated by W. Eugene Davis. Confirmed by the Senate on April 24, 2018, and received commission on May 1, 2018.
Education:
Louisiana State University, B.A., 1994
Louisiana State University, Paul M. Hebert Law Center, J.D., 1997
Columbia Law School, LL.M., 2004
Professional Career:
Law clerk, Hon. John M. Duhe, Jr., U.S. Court of Appeals for the Fifth Circuit, 1997-1998
Private practice, Houston, Texas, 1998-1999
Assistant solicitor general, State of Texas, 1999-2001
Private practice, Austin, Texas, 2001-2002
Associate-in-law, Columbia Law School, 2002-2004
Assistant professor of law, University of Mississippi School of Law, 2004-2008
Appellate chief, Office of the Attorney General, State of Louisiana, 2008-2012
General counsel, The Becket Fund for Religious Liberty, Washington, D.C., 2012-2014
Private practice, Washington, D.C., 2014-2018
Other Nominations/Recess Appointments:
Nominated to U.S. Court of Appeals for the Fifth Circuit, October 2, 2017; no Senate vote
Born 1960 in New Orleans, LA
Federal Judicial Service:
Judge, U.S. District Court for the Eastern District of Louisiana
Nominated by George W. Bush on September 4, 2001, to a seat vacated by Morey L. Sear. Confirmed by the Senate on December 11, 2001, and received commission on December 13, 2001. Served as chief judge, 2015-2018. Service terminated on May 15, 2018, due to appointment to another judicial position.
Judge, U.S. Court of Appeals for the Fifth Circuit
Nominated by Donald J. Trump on January 8, 2018, to a seat vacated by Edith Brown Clement. Confirmed by the Senate on May 9, 2018, and received commission on May 10, 2018.
Education:
Louisiana State University, B.A., 1982
Louisiana State University, Paul M. Hebert Law Center, J.D., 1985
Professional Career:
Law clerk, Hon. Charles Grisbaum, Louisiana Court of Appeal, Fifth Judicial Circuit, 1985-1987
Private practice, Metairie, Louisiana, 1987-2001
Other Nominations/Recess Appointments:
Nominated to U.S. District Court for the Eastern District of Louisiana, August 2, 2001;no Senate vote
Nominated to U.S. Court of Appeals for the Fifth Circuit, October 5, 2017; no Senate vote
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Circuit Halts Enforcement of the OSHA ETS
Today, November 6, 2021, the Fifth Circuit granted the emergency motion to stay enforcement pending further action by the Court. The Fifth Circuit provided the Federal government until 5:00 p.m ...
Federal Court Temporarily Stays OSHA Employer Vaccination ...
But I also believe the OSHA employer mandate is a case of executive overreach, and might set a dangerous precedent, if upheld. We may soon learn whether and to what extent the Fifth Circuit agrees ...
Here Are the Arguments That Persuaded the 5th Circuit To ...
Vaccine mandates. Here Are the Arguments That Persuaded the 5th Circuit To Block OSHA's Vaccine Mandate for Private Employers The appeals court said the rule, which was published on Friday, raises ...
5th Circuit temporarily stays OSHA's vaccine mandate for ...
The 5th U.S. Circuit Court of Appeals at New Orleans on Saturday granted an emergency motion to stay the federal government's vaccine mandate for larger employers pending expedited judicial review.
U.S. Fifth Circuit stays OSHA vaccination mandate - The ...
The U.S. Fifth Circuit Court today issued an order staying the Biden administration's Occupational Safety and Health Administration mandate covering private businesses with 100 or more employees.. The court blocked implementation pending further action, saying there is "cause to believe there are grave constitutional and statutory issues" with the Biden administration's order.
5th Circuit Blocks OSHA's Emergency Temporary Standard
Court of Appeals Stays OSHA's Emergency Temporary Standard. Sunday, November 7, 2021. On November 6, 2021, the United States Court of Appeals for the Fifth Circuit granted a stay of the ...
5th Circuit Deals Biden Major Blow, Orders Temporary Halt ...
5th Circuit Deals Biden Major Blow, Orders Temporary Halt to OSHA Mandate. A federal appeals court has temporarily halted Biden's vaccine mandate pending further action by the court. A federal court issued Texas a temporary victory in its lawsuit against the Biden administration's coronavirus vaccine mandate issuing a stay on the ...
5th Circuit temporarily blocks Biden's OSHA vaccine ...
Here's some good news: the 5th Circuit Court of Appeals has granted an emergency motion that blocks President Joe Biden's OSHA vaccine mandate for businesses employing more than 100 people.
BREAKING: Federal Court Stays Biden Vaccine Mandate for ...
2 days agoOn Saturday, the the U.S. Court of Appeals for the Fifth Circuit issued a temporary stay against the Biden administration's vaccine mandate using a rule the Occupational Safety and Health ...
5th Circuit temporarily blocks Biden's COVID-19 vaccine ...
The U.S. Court of Appeals for the Fifth Circuit issued a stay on Saturday temporarily halting the Biden administration's COVID-19 vaccine mandate that would have required companies of 100 employees or fewer to force their workers to get vaccinated or be tested weekly for the virus. In its ruling the Fifth Circuit stated: pending expedited ...