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The Supreme Court may be running out of patience for Trump’s worst judges
“by sitting on this case, a Supreme Court dominated by conservative Republican appointees effectively let Tipton control ICE for more than a year.”
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“Texas’s lawsuit was rooted in a federal statute which states that the United States “shall take into custody any alien” who commits certain immigration offenses. In effect, they argued that the word “shall” is a mandatory command that forces ICE to make mass arrests.
But this argument runs afoul of 150 years of well-settled law. As far back as Railroad Company v. Hecht (1877), the Supreme Court held that “as against the government, the word ‘shall,’ when used in statutes, is to be construed as ‘may,’ unless a contrary intention is manifest.”
One reason for this strong presumption that federal laws do not impose arrest or prosecution mandates on law enforcement is that it is often literally impossible for a law enforcement agency to arrest every single person who violates a law — imagine the massive police state that would be required, for example, to pull over every single driver who violates a traffic law.
As the Justice Department explained in a 2014 memo, “there are approximately 11.3 million undocumented aliens in the country,” but Congress has only appropriated enough resources to “remove fewer than 400,000 such aliens each year.” That means that leaders of immigration agencies like ICE necessarily must set priorities, and make choices about which deportable immigrants will be targeted and which ones will effectively be tolerated within US borders.
Indeed, as Kavanaugh writes in his Texas opinion, this ability to set priorities and to decide when not to enforce the law has been a regular feature of federal immigration law across many administrations. “For the last 27 years since” the immigration statutes at issue in Texas “were enacted in their current form,” Kavanaugh writes, “all five Presidential administrations have determined that resource constraints necessitated prioritization in making immigration arrests.””
Did All Those Masks Help with Covid or Not?
Testimony reveals that the Hunter Biden investigation collapsed into bitter acrimony
https://www.vox.com/2023/6/29/23772637/hunter-biden-whistleblowers-irs-merrick-garland
Why streaming services are dumping shows left and right
“This was the promise of the streaming age: You can have everything, you can have it everywhere, and you can have it all, at once. Subscribe to our platform and you’ll have access to our huge library of “content” forever, on demand, whenever you want it. You want more? Look, it’s right there in the plus sign at the end of the platform’s name. (Why did everyone do that?)
This utopian fantasy was in serious contrast to the old way of watching TV, where you’d sit yourself down to watch your show at the time it aired or you wouldn’t see it at all unless you were lucky enough to catch it in reruns. Once your show was canceled, you couldn’t watch it anymore. We got VHS recorders, and then TiVos, sure, and eventually you could buy a show on tapes or DVDs after it had aired. But these all require intention and planning, an action on the part of the potential audience member. Streaming? That would be easy.
Turns out the utopian fantasy was a fantasy”
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“The first way that removing a show from a platform saves money is tied up with some of the reasons that the WGA is striking and SAG-AFTRA is considering it: residuals. Production companies pay members of various guilds (like the WGA) a fixed percentage every year if their show is available on a streaming platform. Calculation of the precise rate is byzantine and renegotiated every three years by the guilds, and can range from a pittance to a livable income, depending on the deal that was cut for that show. But it’s a cost that the company incurs, and if they remove the show entirely, the cost is eliminated.
Often, however, shows removed from a platform don’t go away entirely. In the case of Westworld, for instance, Warner Bros. Discovery removed the show from its platform (now called Max) but licensed it to free, ad-supported channels operated by Roku and Tubi. That means you can actually watch Westworld now, entirely for free, as long as you’re willing to sit through some ads — and it means Warner Bros. Discovery starts making some money on Westworld again.
What you can’t necessarily do is watch it at literally any time you want to. These free channels, called FAST (for Free, Ad-Supported Television), operate on a linear model, which is basically the same way cable TV works. You flip through channels and watch whatever is “on TV” right now. What makes FAST different from traditional cable or network TV is that it’s distributed over the internet, so you can watch on your laptop or device or smart TV, instead of over cables or airwaves.
But wait, you might ask: Doesn’t Warner Bros. Discovery now have to pay residuals to everyone involved with Westworld? Yes, it does — but the residual rates for FAST are currently lower than the SVOD rates on streaming platforms, which in turn are far lower than on broadcast television like network or cable. Additionally, Warner Bros. Discovery is getting payment from Roku and Tubi — that’s what it means to “license” your show. So there’s income and less outflow, and that’s a net positive on the balance sheet.
Speaking of balance sheets, there’s one more reason this might happen. For companies like Disney, Paramount, and Warner Bros. Discovery, every show on their platform is an asset. If an asset’s value declines more rapidly than anticipated, you can “write down” its value, meaning it’s now worth less; that ultimately creates a loss on your balance sheet, which translates to a tax deduction. If you remove a show from your platform, it’s now “impaired” in terms of earning power, and thus literally worth less. It’s all pretty complicated, but companies seem very eager to incur write-downs, perhaps in part to show their shareholders that they are serious about getting their financial houses in order. (That’s key for companies like these, which are feeling a squeeze after years of relentless, profligate spending on content to populate their platforms — especially during the pandemic.) Disney, for instance, announced that it will incur a whopping $1.5-$1.8 billion impairment charge from removing content from its platforms, which translates into a very sizable write-down and a lower tax burden.”
The monstrous arrogance of the Supreme Court’s affirmative action decision
“Chief Justice John Roberts’s opinion for the Court’s six Republican appointees faults the two universities for having affirmative action programs that “lack sufficiently focused and measurable objectives warranting the use of race.” But there’s an obvious reason why they do not. The Court’s previous decisions permitted some limited forms of affirmative action, but they explicitly ban racial quotas and other mathematical formulas that could allow universities to determine whether they are achieving “focused and measurable objectives warranting the use of race.”
The Harvard case, in other words, is rooted in a Catch-22. Universities may neither have mathematically precise programs that violate the Court’s earlier decisions, nor may they have the more vaguely defined programs that the Court prohibits in its newest decision.
I wish that the Court had shown more humility instead.
That’s because the military leaders’ views are shared by an equally long list of America’s largest employers — a list that includes companies as diverse as Apple, Levi Strauss, Northrop Grumman, Starbucks, and United Airlines — all of whom warn that American business will be less dominant because of the Supreme Court’s decision in Students for Fair Admissions.
To appeal to diverse markets, the business brief argues, major employers need “university admissions programs that lead to graduates educated in racially and ethnically diverse environments.” “Only in this way,” their brief emphasizes, “can America produce a pipeline of highly qualified future workers and business leaders prepared to meet the needs of the modern economy and workforce.”
And then there’s the medical profession’s brief. This brief, filed on behalf of a wide range of medical organizations including the American Medical Association itself, argues that “an overwhelming body of scientific research compiled over decades confirms” that “diversity literally saves lives by ensuring that the Nation’s increasingly diverse population will be served by healthcare professionals competent to meet its needs.””
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“six lawyers with little specialized expertise in business, education administration, national defense, or medicine, declared that they have found the answer to America’s longstanding questions about race and diversity — and that they know more than individuals and institutions with far greater expertise than someone who spends their days reading documents in a marble palace could ever have.”
How Republicans turned a must-pass defense bill into an “extremist manifesto”
“House Republicans narrowly passed their version of an annual defense bill 219–210, after stacking it with controversial amendments on social issues that are dead on arrival in the Senate.
The debate on the National Defense Authorization Act, or the NDAA for short, now heads to the Democrat-controlled upper chamber, which is set to consider its own take on the bill later this month. Eventually, the two chambers will work to reconcile their differences between the two in the hope of finding a compromise.
The NDAA, one of Congress’s must-pass bills, effectively lays out what the military’s budget could look like for the next year and which programs will be funded. This year’s House bill authorizes $886 billion in funding, including a 5.2 percent pay raise for service members and the appointment of an inspector general to oversee Ukraine funding.
Much like the debt ceiling legislation and annual spending bills, the NDAA is a prime opportunity for lawmakers to add unrelated amendments making policy changes to pet issues, since it has to pass every year. This week, Republicans capitalized on this opportunity to put forth controversial amendments favored by their right flank, including restrictions on abortion and LGBTQ rights. It’s a move that’s meant to send a message about their position on social issues, and it’s also one that makes what was a bipartisan bill much more contentious.”
Trump got a new legal headache this week. Then another, then another.
https://www.vox.com/2023/7/18/23799114/donald-trump-indictment-special-counsel-jack-smith-jan-6-classified-documents
The far right’s war on “woke” has real-world consequences for the military
“Alabama Sen. Tommy Tuberville has held up the confirmation of more than 260 generals for new command posts — including members of the Joint Chiefs of Staff and the head of the Marine Corps — over his objections to the Pentagon’s abortion policy.
Tuberville, a former football coach who is closely allied with former President Donald Trump, has refused to go forward with the routine confirmations and is essentially using defense policy as leverage to promote his cultural ideology. But the Department of Defense has repeatedly warned that holding up the confirmations is damaging the military’s chain of command at the highest levels, including the Joint Chiefs of Staff — especially concerning amid a time of increasing tension between the US and China, and as the US supports Ukraine against Russia’s invasion.
“These are our nominees who have incredibly important jobs all around the world, who are working with our partners and allies,” Deputy Pentagon Press Secretary Sabrina Singh said in an interview with Fox News Thursday. “And it sends a message to our adversaries.”
Any senator can hold up these confirmations, even if the other 99 wish to move forward with them, because of the Senate concept of unanimous consent, which is not a formal Senate rule but allows the body to make changes to regular order to expedite legislating such as allowing batch confirmations. Unanimous consent can apply to all different parts of the Senate’s legislative process — everything from limiting debates and amendments to scheduling votes — and essentially means that the body has decided to dispense with the Senate’s usual procedures in the interests of moving business forward. It’s not always part of the legislative process, but it’s used so often that there are rules and precedents surrounding it.
The Senate has long relied on unanimous consent to promote military personnel through batch confirmations, but with Tuberville’s hold, the only way to move the confirmations forward would be to vote on them one by one, through regular order. Sen. Jack Reed, a Democrat from Rhode Island and the chairman of the Senate Armed Services Committee, told the Associated Press that doing so would take up to 84 days with the chamber working regular, eight-hour days, or 27 days if they worked “around the clock.”
Tuberville’s hold, which could affect 650 military promotions by the year’s end, is based on a misrepresentation of how the Pentagon’s abortion policy works. And he isn’t the only Republican using legislation related to the military to force right-wing policies into defense policy. House Freedom Caucus members scored a victory this week when the House passed a version of the National Defense Authorization Act (NDAA) that included amendments limiting abortion, LGBTQ+ rights, and diversity, equality, and inclusion programs. “This bill has been transformed into an extremist manifesto,” House Minority Whip Katherine Clark told CNN after the bill passed.
In a macro sense, right-wing Republicans’ push to undo progress in the DoD both echoes and foreshadows their intent to halt the business of governing to try to codify policies that many Americans don’t support. And on a more specific scale, it affects the overall functioning of the military — everything from funding, to the chain of command, down to military families trying to plan moves to new bases. Tuberville and House Freedom Caucus members are also breaking with decades of Republican tradition by failing to support the military and military policy.”
The SCOTUS decision on affirmative action in colleges, explained
“The immediate question in the two lawsuits before the Supreme Court — Students for Fair Admissions v. President & Fellows of Harvard College and Students For Fair Admissions v. University of North Carolina — was whether the Supreme Court should overrule Grutter v. Bollinger, the 2003 case that held that race may play a limited role in college admissions. In practice, race often functions as a tiebreaker when universities are deciding among many well-qualified students.
According to Vox’s Ian Millhiser, the decision does not explicitly overrule the Court’s previous decisions permitting affirmative action, but it will almost certainly have the same effect as a total ban.
The overarching stakes in these cases, however, are much broader. The plaintiffs advocated a “colorblind” theory of the Constitution that would prohibit the government from considering race in virtually any context, including efforts to voluntarily integrate racially segregated grade schools and other institutions. Decisions such as Grutter have given the government limited authority to foster racial diversity. The Harvard and UNC decision is likely to eliminate that authority altogether.”
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“Affirmative action has been used for more than half a century by colleges and universities, initially to encourage the participation of historically marginalized groups and mitigate the effects of decades of segregation by university systems. Since the landmark Regents of the University of California v. Bakke case in 1978, the Supreme Court has repeatedly held that such programs can be used as a tool to foster diversity among a university’s student body, and that an applicant’s race or ethnic background could be deemed a plus when deciding between applicants who are similarly qualified. The Court determined that students from underrepresented racial backgrounds could “promote beneficial educational pluralism” that benefits all students — a goal compelling enough to the justices that they have continued its use. Since Bakke, the Court has upheld affirmative action in admissions despite multiple challenges, including Fisher v. University of Texas, decided as recently as 2016, in which Abigail N. Fisher, a white woman, claimed that she was rejected from the University of Texas at Austin because of preferences given to applicants of color.
Although decades of research support the conclusion that more diverse campuses benefit all students, the premise of the “colorblindness” theory is that race-conscious policies are so inherently misguided that they cannot be sustained regardless of their benefits. This theory has been around for a very long time — President Andrew Johnson, the white supremacist who spent much of his time in office frustrating Reconstruction, vetoed laws seeking to lift up enslaved people who had been freed because he claimed they would “establish for the security of the colored race safeguards which go infinitely beyond any that the General Government has ever provided for the white race.” More recently, conservatives including President Ronald Reagan have made similar attacks on affirmative action — often describing such programs as “reverse discrimination.”
Now, this kind of rhetoric is being echoed by Blum (who was, notably, also involved in the Fisher case). “In a multi-racial, multi-ethnic nation like ours, the college admissions bar cannot be raised for some races and ethnic groups but lowered for others,” Blum said in a statement in January. “Our nation cannot remedy past discrimination and racial preferences with new discrimination and different racial preferences.””