“The United States reached a staggering milestone on Monday,surpassing 500,000 known coronavirus-related deaths in a pandemic that has lasted almost a year. The nation’s total virus toll is higher than in any other country in the world. It has far surpassed early predictions of loss by some federal experts. And it means that more Americans have died from Covid-19 than did on the battlefields of World War I, World War II and the Vietnam War combined.” Read more in New York Times
“Former President Donald Trump has been a private citizen for a little more than a month, but the Supreme Court just officially denied his final effort to overturn the 2020 election — although it did so over the protests of three justices.
Additionally, the Court announced that it will not prevent Manhattan District Attorney Cyrus Vance Jr. from obtaining Trump’s tax records, as part of a longstanding criminal investigation into Trump’s businesses.
The Court’s decision not to intervene in this case about Trump’s financial records, Trump v. Vance, is not surprising. In that case, Trump’s lawyers argued that the former president was entitled to absolutely sweeping immunity from criminal investigation while in office — at one point claiming that a sitting president cannot be the subject of a criminal probe if he shoots someone on a public street. But the Supreme Court already rejected this sweeping immunity argument once, in a decision handed down last July. And Trump is no longer the sitting president, so his already weak arguments are now even weaker.
The Court also announced that it will not hear two consolidated election cases on Monday, and its decision not to hear those cases, Republican Party of Pennsylvania v. Degraffenreid and Corman v. Pennsylvania Democratic Party, is also not surprising. The cases ask whether a small number of Pennsylvania absentee ballots that arrived after Election Day should be counted. But, because these ballots will not change the result of any federal election even if they are tossed out, the two Pennsylvania cases are moot.
What is surprising is that three justices — Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch — all voted to hear these two Pennsylvania cases. As explained below, these three justices’ votes show thatthe Court’s right flank is champing at the bit to dismantle one of the foundational premises of American election law.
The immediate impact of the Court’s decision not to hear the two Pennsylvania cases is that Trump and the Republican Party’s efforts to overturn the results of the 2020 election will not receive a hearing in the Supreme Court — and they appear to be dead. But the three dissenting votes in these Pennsylvania cases suggest that a larger battle over who gets to set the rules for American elections is very much alive.
The “independent state legislature” doctrine, briefly explained
The Pennsylvania cases both involve something known as the ‘independent state legislature’ doctrine, a doctrine that the Supreme Court has repeatedly rejected at multiple points throughout its history, but that is now embraced by at least four members of the Court’s Republican majority.
The Constitution provides that ‘the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.’ A separate constitutional provision provides that “each State shall appoint” members of the Electoral College ‘in such Manner as the Legislature thereof may direct.’
Proponents of the independent state legislature doctrine claim that the word ‘legislature,’ when used in this context, must refer to the legislative branch of government within a state — and thus the state’s judiciary and the state’s executive branch are both forbidden to shape the rules governing federal elections within a state. As Justice Neil Gorsuch wrote in an opinion last fall, ‘the Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.’
There are many problems with this interpretation of the Constitution, however. One of them is that the Court has repeatedly rejected the independent state legislature doctrine. For more than a century, the Supreme Court understood the word ‘legislature,’ as it is used in the relevant constitutional provisions, to refer to whatever the valid lawmaking process is within that state. As the Court held most recently in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), the word ‘legislature’ should be read ‘in accordance with the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto.’
Should the new doctrine advanced by the Court’s right flank take hold, the implications are potentially breathtaking. It could mean, for example, that Democratic governors in states like Wisconsin or Pennsylvania are forbidden from vetoing congressional redistricting bills, thus giving the Republican state legislature control over gerrymandering. It could mean that states are forbidden from drawing congressional districts using a nonpartisan commission, on the theory that a commission is not part of the ‘legislature.’ And it could forbid state courts from enforcing the state’s constitutional safeguards against gerrymandering and outright disenfranchisement, because courts are not part of the ‘legislature.’
At least four justices support the independent state legislature doctrine
Indeed, the Pennsylvania cases involved just such a dispute between a Republican legislature and a state court. In the lead-up to Pennsylvania’s 2020 election, the state’s supreme court held that mailed-in ballots that arrive up to three days after the election will be counted. Republicans sued, claiming that the state courts do not have the power to set the state’s election rules — only the legislature can.
As it turns out, the results of Pennsylvania’s federal elections would not change if these late-arriving ballots are tossed out, so the case is moot. And, while the majority did not explain why it decided not to hear these cases, it is likely that this mootness problem was at the front of their minds.
Yet Justices Thomas, Gorsuch, and Alito all voted to hear the two Pennsylvania cases, despite the fact that there is no longer a live controversy among the parties in those cases.
Thomas’s dissenting opinion argues that the Court needs to ‘provide clear rules for future elections,’ but the Court’s decision in the Arizona State Legislature case already set a clear rule rejecting the independent state legislature doctrine. The real dispute in these cases was whether to change the longstanding rule that was applied in that Arizona case.
A fourth justice, Brett Kavanaugh, endorsed the independent state legislature doctrine in an opinion last October, although he did not vote to hear the Pennsylvania cases now that the election is over, most likely because those cases are moot. The Court’s three liberal justices, plus Chief Justice John Roberts, have all signaled that they will not vote to impose the independent state legislature doctrine.
So that leaves Justice Amy Coney Barrett, a Trump appointee, as the one uncertain vote on the Supreme Court in the likely event that the independent state legislature doctrine comes back to the Court in the future. The bottom line, in other words, is that, while the Supreme Court just handed Trump a final round of defeats, a radical argument that could potentially have seismic consequences for US democracy may still be in play.” Read more at Vox
“Deadened Senses: A year into the pandemic, doctors are striving to better understand and treat patients who lose their sense of smell. Called anosmia, the condition is a common symptom of COVID-19. It is non-lethal but terribly vexing for long-term sufferers who many weeks after infection still cannot taste food or smell the things they love.
In the southern French city of Nice, virus olfactory disorders are being studied by medical researchers who were previously using scents in the diagnosis of Alzheimer's. They have also used fragrances to treat post-traumatic stress in children after a terror attack and now lend their expertise to help post-virus patients recover their sense of smell. John Leicester reports from Nice.” Read at AP
“The Food and Drug Administration (FDA) released new guidelines on Monday saying that drug companies and vaccine developers no longer need to conduct lengthy trials to determine the efficacy of shots created to ward off COVID-19 variants.
According to the new guidance, developers will not need large randomized control trials comparing it to a placebo, as they did in the creation of the original COVID-19 vaccines. Instead, as The Hill’s Nathaniel Weixel writes, the FDA is recommending that companies submit data from small trials comparing a person's immune response to a vaccine that has already been authorized.
The new guidance will allow pharmaceutical companies to expedite the creation of booster shots and new shots to deal with emerging variants.” Read more at The Hill
More from Around the World:
“The head of the World Health Organization pleaded with rich countries to check before ordering additional vaccine shots for themselves whether that undermines efforts to get vaccine shots to poorer nations.
Portugal’s new daily infections have dropped below 1,000 for the first time since early October. It comes just weeks after Portugal was the worst-hit country in the world by size of population. Officials credited a national lockdown that began Jan. 15 with bringing the steep drop.
Elementary students in more than half of Germany’s 16 states have returned to school after more than two months at home. It is the first major relaxation of the country’s pandemic measures since before Christmas.
Mexico has received the first shipment of Russia’s Sputnik V COVID-19 vaccine. Some 200,000 doses arrived last night.
Japan’s Emperor Naruhito expressed concern about the impact the pandemic has had on people in remarks for his 61st birthday.” Read at AP
“Democratic New Mexico congresswoman Deb Haaland, who hopes to become the first Native American Cabinet secretary in U.S. history, faces confirmation hearings Tuesday before the Senate Energy and Natural Resources Committee. Many Native Americans are hopeful Haaland, 60, can improve the Interior Department's Bureau of Indian Affairs and help fix inadequate healthcare, poor education and crumbling infrastructure. But she must also weigh the needs of other factions, including energy companies looking to extract mineral rights and conservation groups hoping to preserve the national parks.” Read more at USA Today
“Merrick Garland told senators that the Capitol riot investigation would be his first priority as attorney general. He appears headed for an easy confirmation, five years after Republicans blocked his Supreme Court nomination.” Read more at New York Times
“Also today, Neera Tanden — Biden’s nominee to head the Office of Management and Budget — is facing her confirmation hearing. Her chances are dimming.” Read more at New York Times
NASA releases Mars landing video: ‘Stuff of our dreams’
“NASA has released the first high-quality video of a spacecraft landing on Mars. The footage is so amazing that members of the rover's landing team say they feel as though they're riding along. The Perseverance rover landed last Thursday near an ancient river delta. The Jet Propulsion Laboratory landing team shared the three-minute video after spending the weekend binge-watching it. Five of the six descent cameras provided stunning footage of the enormous parachute popping open and the dust kicking up as the rocket engines lowered the rover to the surface with a sky crane.” Read more at AP
“Legislation to set up a recreational marijuana marketplace, decriminalize cannabis and loosen penalties for underage possession of the drug and alcohol was signed into law Monday by New Jersey Gov. Phil Murphy, more than three months after voters overwhelmingly approved a ballot question to legalize adult use of the drug.
The Democrat-led Assembly and Senate passed the last-minute measure Monday to ease penalties on underage possession of both alcohol and marijuana as a way to secure Democratic Gov. Phil Murphy’s signature on legislation they had sent him in December.
Murphy faced a deadline to act on the December measures. He had earlier said he backed the legislation, but delayed signing them for more than two months amid concerns that young people of color could still face arrests, running afoul of his goal of undoing the effects of the war on drugs in Black communities.” Read more at NBC News
“It was supposed to be a dark winter for the economy. But buoyed by government stimulus checks, falling COVID-19 cases and the vaccine rollout, growth is expanding briskly and the economy is projected to boom this year as pandemic-related restrictions ease . Barclays, Morgan Stanley and Oxford all forecast about 6.5% growth this year, which would be the best since 1984, while Goldman Sachs is looking for a 7% advance. Other economists aren’t quite so bullish, but still expect significantly stronger growth than previously anticipated. Some even predict that by late 2021 and throughout 2022, the nation’s gross domestic output will be larger than it would have been if the health crisis hadn’t occurred. That doesn’t mean the crisis will avoid the long-lasting scars experts have feared, and some experts say the faster growth poses the risk of a run-up in inflation that could ultimately trigger a recession, but the more robust recovery should limit the damage.” Read more at USA Today
“Top Capitol law enforcement officials are set to testify Tuesday before key Senate panels, according to a Senate Homeland Security and Governmental Affairs Committee aide not authorized to speak on the record. Lawmakers are set to ask questions about failures in preparation by law enforcement as they probe the buildup to the Jan. 6 riot at the Capitol and the subsequent response. Officers were overwhelmed by rioters despite intelligence suggesting protests could turn violent, and the Capitol Police Union has faulted their leadership for insufficient preparation and equipment for officers.” Read more at USA Today
“The wife of convicted drug lord Joaquin “El Chapo” Guzmán Loera is scheduled to appear in court Tuesday after being arrested in Washington, D.C., for her alleged role in the distribution of heroin, cocaine, methamphetamines and marijuana . Emma Coronel Aispuro, 31, a dual U.S.-Mexican citizen, is charged in a conspiracy to distribute drugs in the U.S. and is alleged to have assisted in her husband's elaborate 2015 escape from a Mexican prison. She also is suspected of plotting another escape before Guzmán's 2017 extradition to the U.S. Guzmán, a leader of Mexico's Sinaloa narcotics cartel, was sentenced to life in prison following his 2019 trial in Brooklyn, N.Y.” Read more at USA Today
“Police in Aurora, Colorado, involved in the 2019 death of Elijah McClain had no legal basis to stop or detain him. This is the conclusion of an independent investigative report that criticizes officers and medical responders at the scene. McClain, a Black man, died three days after he was stopped by Aurora police, put in a carotid hold and injected with ketamine. No charges were brought against the officers because prosecutors said they couldn't prove they caused McClain's death or used unjustified force. Meanwhile, police are investigating the arrest of a Baton Rouge teenager last weekend after video posted online showed an officer pinning the 13-year-old to the ground with his arm under the boy's neck. The Louisiana city and police department have petitioned to allow the full body-worn camera video to be made public.” Read more at CNN
“Facebook and the Australian government have been at odds for months over proposed legislation that would force tech platforms to pay publishers for news content. As a result, last week Facebook barred Australians from finding or sharing news on its service. The decision appeared to be the most restrictive move the company has ever taken against content publishers and forced the pages of media organizations and even some unrelated essential services to go dark. Now, Facebook will restore news pages after the government agreed to change the planned media code, allowing Facebook to retain greater control over what appears on its platform.” Read more at CNN
“19% — The percentage of vaccine recipients, as of Feb. 19, in California who are Black or Latino, despite those groups together accounting for 59% of Covid-19 cases in the state. Meanwhile, white Californians make up 33% of vaccine recipients and about 20% of Covid-19 infections. California's government pledged to prioritize distributing vaccines to the hardest-hit communities, including racial minorities, but more than two months into the rollout, those efforts appear to be lagging.” Read more at Wall Street Journal
“Daft Punk, the French electronic-music duo, broke up after almost 30 years.” Read more at New York Times
“Lives Lived: A Harvard-trained lawyer, Ahmed Zaki Yamani was a longtime oil minister in Saudi Arabia and the architect of the Arab world’s drive to control its own energy resources in the 1970s. Yamani died at 90.” Read more at New York Times
A man plays a trombone last month at the Robert E. Lee statue on Monument Avenue in Richmond, Va. Photo: Jim Urquhar/Reuters
“160 public Confederate symbols were taken down or moved from public spaces last year, AP writes from a Southern Poverty Law Center tally.
Why it matters: The movement to remove these symbols from public spaces became part of the national reckoning on racial injustice following the May death of George Floyd.
The center says 704 Confederate monuments remain across the U.S.” Read more at Axios
“Human rights and trade are a tricky combination.
China faces international condemnation for its treatment of the Muslim minority in Xinjiang province, where rights organizations and the United Nations have documented evidence that Uighurs are locked up in camps, forcibly sterilized, deprived of their religious rights, prevented from traveling and holding certain jobs. The U.S. calls it genocide.
Beijing insists Uighurs have just as many freedoms as anyone else in China. It says its ‘training centers’ are meant to prevent separatism and extremism. Foreign Minister Wang Yi says locals in Xinjiang lead ‘safe and happy lives.’Tensions over Xinjiang are bleeding into broader ties. China and the U.K. have taken each other’s state broadcasters off the air. The U.S. has sanctioned some Chinese companies it says profit from exploited labor, and banned imports of cotton products and tomatoes from the region.
Even so, governments are cautious. Some parliaments have debated calling the treatment of Uighurs genocide, but the moves are generally initiated by the opposition and non-binding. In Canada yesterday, Prime Minister Justin Trudeau’s cabinet abstained from a vote on a genocide motion.
Germany is mulling legislation aimed at combating human rights abuses in supply chains, but progress is slow.
Industry groups in turn argue the complexity and length of supply chains means it’s unreasonable they be held to account.In any case, it’s hard to avoid the world’s second-biggest economy entirely. China regained its position as India’s top trade partner in 2020, as New Delhi’s reliance on imported equipment outweighed its efforts to curb commerce with Beijing over a border conflict.
Governments may be calling out China on human rights but they’re wary of triggering a full trade spat. In the meantime, Beijing continues to act as it sees fit on Xinjiang.” — Rosalind Mathieson Read more at Bloomberg“U.S.-Saudi ties. The families of the three U.S. service members killed and 13 others injured by Mohammed Alshamrani, a Saudi airman who went on a shooting spree at Naval Air Station Pensacola in 2019, are suing Saudi Arabia’s government, alleging that the kingdom failed to screen him appropriately before sending him to the United States for training. The families are filing the lawsuit against Saudi Arabia based on a 2016 law that allows U.S. citizens to sue foreign governments over terrorist attacks—legislation that was initially passed in order to allow the families of 9/11 victims to bring a civil suit against Saudi Arabia.” Read more at Foreign Policy
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