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Today’s read: 12 minutes.
Some wild news from yesterday’s election, the debate over police reform in Congress and a question about how the Supreme Court picks cases.
Republican Sen. Tim Scott (R-SC), who is largely responsible for leading the party’s police reform bill. Photo: Ryan Johnson / Flickr
In yesterday’s numbers section, I wrote that “87% of Americans strongly (64%) or somewhat favor (19%) requiring police officers to report peer misconduct.” As one eagle-eyed reader noted, 64+19 equals 83, which means my math was off here. The real numbers were 64% who strongly favored police reporting peer misconduct and 23% who somewhat favored it, totaling 87% of Americans. Those numbers are from a recent Associated Press poll.
This is the fifth official Tangle correction in its 10-month existence. (I will keep a running tally of Tangle corrections, which are separate from the reader feedback I publish daily).
Yesterday, I wrote about the Trump administration’s ban on new visa applications. Several readers wrote in with fascinating personal stories about how the announcement will impact them, and almost all of the reader feedback I got was against the ban.
Scott from Glenwood Springs, Colorado, said that workers on J-1 visas help operate the ski mountains every year, typically making $14 an hour. That is “enough money to get by” with housing benefits, but not a job most locals are interested in. The workers, typically from South and Central America, are usually there on summer break from college classes. “I honestly don't know what our mountains will do without the J-1 workforce!” he said.
Michelle from San Francisco said she is a recruiter in the tech sector and explained a long, arduous process for getting someone here on an H-1B visa. She contended that H-1B’s are rarely taking American jobs because they’re so hard to get for your employee. “I always feel that most of the people with opinions on the subject don't have the faintest clue what the process is actually like, and how restrictive and challenging it is,” she said. “Is it exploitable? I think Disney proved a few years ago that it is — but those exploits are very much the exception, not the rule, and can be addressed by more fine-tuned tweaking of the rules than what is currently being thrown at us.”
Shu from New Haven, Connecticut, made a similar point. He recently got his green card to work in a university, building digital tools for use in Alzheimer’s research. “Am I taking another American's job?” he asked. “I personally don't think so, because my current employer was willing to keep that position open for 6 months until I had work authorization. 6 months! Considering all the hurdles and hoops that employers have to go through to petition employees for both non-immigrant and immigrant visas, I highly doubt that people with these visas are taking away American jobs.”
Several states had primary elections yesterday. Results are still rolling in but we have some headlines and updates. It was an absolutely massive night for the progressive movement in New York and a bad night for President Trump in North Carolina.
- Alexandria Ocasio-Cortez successfully defended her seat against Michelle Caruso-Cabrera, a former CNBC contributor. AOC is a lock to hold the seat in a general election, and Caruso-Carbera became a favorite of Republicans who donated to her campaign in an effort to stop AOC from earning another term.
- Mondaire Jones and Richie Torres each won their Democratic primaries in New York. Jones is an AOC-backed progressive and Torres is a 32-year-old with the “potential to become a national star,” according to Dave Wasserman. Together, they’re expected to become the first out, Black LGBT members of Congress.
- New York Rep. Elliot Engel lost his primary to Jamaal Bowman, dealing another huge blow to the Democratic “establishment.” Bowman is a progressive insurgent who is a former middle school principal and made a late surge in the race. Engel had held his seat for 16 consecutive terms. Bowman’s victory is being compared to AOC’s shocking win in the New York primary two years ago.
- New York Rep. Carolyn Maloney is clinging to a 1.6% lead over Surah Patel, who was endorsed by Alexandria Ocasio-Cortez. Votes are still being counted.
- Kentucky Democrat Amy McGrath, aiming to take on Sen. Mitch McConnell in November, is in a tight race against State Rep. Charles Booker for the Democratic primary. The race is too close to call. McGrath is a party favorite who was reliably in control of the race before the killing of Breonna Taylor in Louisville, which catapulted Booker — a candidate endorsed by Bernie Sanders and AOC — into a competitive position. McGrath has struggled to navigate the tragedy.
- Donald Trump’s perfect endorsement record in GOP primaries came to an end. His choice for an open seat in Western North Carolina was “drubbed by a 24-year-old first-time candidate,” Politico reported. The seat was previously held by Mark Meadows, who left to become Trump’s chief of staff. In Kentucky, Rep. Thomas Massie easily defended his seat, despite Trump calling him a “disaster for America” and endorsing his opponent.
What D.C. is talking about.
Police reform. Earlier this month, Democrats in the House of Representatives released a wide-reaching police reform bill. Then, last week, Senate Republicans unveiled their own version of a police reform bill, led by Sen. Tim Scott (R-SC), the lone black Republican in the Senate. The bills have some common ground: both lay out plans for more data collection on police use of force, more training for law enforcement in de-escalation and more incentives for law enforcement to wear body cameras. Both bills also make lynching a federal crime because a separate anti-lynching bill is being held up by Sen. Rand Paul (R-KY) on the grounds that lynching is defined too broadly.
But the bills also have major differences, and on Tuesday, Senate Democrats said they would block the Republican bill, calling it “woefully inadequate” (Reminder: generally speaking, the House of Representatives passes legislation, sends it to the Senate for mark-ups and changes, and then it gets sent back down to the House for a final vote before going to the president).
Senate Republicans are set to have a test vote on their bill Wednesday morning, and the House is expected to pass the Democrats’ version of the bill on Thursday. Senate Democrats’ announcement that they would oppose the Senate GOP’s version of the bill could set up a clash that delays or altogether tanks hopes of police reform at the federal level.
It’s emblematic of the political moment we’re in. By opting to oppose the bill, Senate Democrats are signaling that they believe they will “gain more by blocking what they consider a fundamentally flawed measure — and blaming Republicans for the demise of reform efforts — than trying to salvage it,” The New York Times reports.
What the left is saying.
Democrats in the House believe this moment calls for major changes. Right now, the law protects government employees from being punished for violating someone’s rights if they “reasonably” believe their conduct was lawful or if the rights of a defendant were not “clearly established” — i.e. there has to be precedent for their misconduct. The Democratic House bill would fundamentally end that doctrine, called “qualified immunity,” for police officers, explicitly removing local law enforcement officers and state correctional officers from qualified immunity protections.
The Democratic bill also lowers the bar for prosecution. Right now, federal prosecutors have to prove an officer “willfully” violated someone’s rights. The Democratic bill strikes the word “willfully” and replaces it with “knowingly or with reckless disregard” violated a person’s rights.
Democrats’ bill also imposes broad chokehold bans. The language in their bill prohibits the use of any maneuver that restricts blood or oxygen flow to the brain or restraints that “prevent or hinder breathing or reduce intake of air,” bans no-knock warrants like the one that ended in Breonna Taylor’s death, and calls for the elimination of any policies, procedures and practices that “permit or encourage” racial profiling.
Given that 88% of Americans want to require the use of body cameras, 85% of Americans want to prosecute officers who use excessive force and 69% of Americans believe the justice system needs a complete overhaul or major changes, Democrats argue their bill meets the moment and delivers what the people are asking for.
What the right is saying.
Republicans in the Senate say they’re moving forward with a compromise bill, one that can pass the Senate, will be signed by the president and usher in actual change.
The Republicans’ proposal does not change the qualified immunity doctrine, which Sen. Scott called a “poison pill,” arguing changes to qualified immunity for police would never pass. However, some Senate Republicans have been on board, and Indiana Sen. Mike Braun said Tuesday he was going to introduce a separate bill that changes how qualified immunity is applied. The bill also leaves the current prosecutorial standard for police force in place, and instead provides incentives for local law enforcement officers to address excessive use of force by providing de-escalation and bystander training.
Instead of banning no-knock warrants, the Republican bill requires police forces to report when no-knock warrants are used to the Attorney General. Sen. Rand Paul (R-KY) said he wants to strengthen that part of the Republican bill by further limiting when no-knock warrants can be used. The Republican bill also does not address racial profiling, though it calls for disseminating a national curriculum to educate police on the history of racism and establishing training programs to improve “relationships between law enforcement and the communities they serve.”
The Wall Street Journal editorial board blasted Democrats for signaling that they would block the bill from even being debated or amended on the Senate floor, calling it “unfair to the Scott bill that is a good-faith effort to nudge local police departments toward better practices.”
The board argues that the federal government’s role in policing is and should be limited, and that Scott’s bill “sensibly stresses data collection, which shouldn’t be controversial.”
“Democrats want to go much further and require law-enforcement agencies to report traffic stops and pat-downs by the race and ethnicity of both the officers and civilians involved,” the board argues. “Their goal is to use a paint-by-colors ‘disparate impact’ analysis to show ‘patterns and practices’ of policing. This will make it easier for the Justice Department to sue local police departments under the 1994 Violent Crime Control and Law Enforcement Act,” despite the fact “there’s little evidence that federal control has reduced racial tension or improved policing in the 20 or so cities under consent decrees since the early 1990s.”
If I had to pick a bill wholesale, I’d pick the Democrats’ bill. As I’ve written before, I tend to land fairly left on the issue of police reform. But the single most important thing to me — and something both conservative and liberal Americans support — is ending the protections that police officers enjoy from being prosecuted for misconduct. Reforming the qualified immunity doctrine would do that, as would lowering the prosecutorial standard, and the Democrats’ bill is the easiest path forward for making those things happen.
Again: it’s absolutely insane that police in the United States need to violate “clearly established rights” or know the law they are violating in order to be held accountable for their crimes. There aren’t enough words to describe how much injustice and hypocrisy exists in the dichotomy between how the law treats citizens and how it treats police. As USA Today reporters Patrick Jaicomo and Anya Bidwell explained, in the last year alone, qualified immunity has allowed courts to grant immunity to “officers who stole $225,000, a cop who shot a 10-year-old while trying to shoot a non-threatening family dog, prison officials who locked an inmate in a sewage-flooded cell for days,” among many other examples.
The Wall Street Journal editorial board’s argument that police reform needs to happen at the state and local level is true. I don’t want the federal government overseeing every police department in the U.S. and I certainly don’t want them writing wholesale laws for local police. I get that. I also believe that a healthy debate on police reform is needed, which the right is pushing for. The argument is sound: Why vote a bill down now out of hand when we could debate it? It’s a perfectly fine approach to let it move forward and try to win the argument on the merits — with the country watching — and then reject it or change the legislation.
But all of these arguments about the Republican bill work under the assumption that incremental change will meet this moment. It doesn't and it won’t. As a different Wall Street Journal opinion piece explained, polling has shown consistently that an overwhelming majority of Americans want a ban on chokeholds, they want police to be held accountable for excessive force, they want police disciplinary records to be public, and 73% (including 55% of Republicans) want Americans to be able to sue police when they believe excessive force has been used against them — an absolute home run of consensus for eliminating qualified immunity.
Congress’s job is to legislate and represent their constituents. America is speaking — and Democrats are trying to seize the moment on a lasting, wide-reaching and appropriate police reform bill. Their legislation isn’t perfect, but it’s the bill that most closely matches what Americans want. It’s the bill that should be getting amended, debated and altered, not the Republican bill that falls well short of what our country is asking for.
4 quick hits.
- The United States just recorded 35,000 new COVID-19 cases, the third-highest total of new daily cases ever as hospitalizations rose in some states. The New York City Marathon, the world’s largest, was canceled. Cases are now rising in 20 states, mostly in the South and West. Washington state governor Jay Inslee said he will begin mandating masks in public as cases rise there. More than 121,000 Americans have now died of the virus.
- Joe Biden took a dominant lead in the national race against President Trump this week, with a new New York Times/Siena College poll showing him up by 14 points. Such a lead would be nearly insurmountable if it holds until November, pollsters say, and the advantage is largely built on the backs of white women and nonwhite voters.
- A federal appeals court panel ordered an immediate end to the case against former national security advisor Michael Flynn, telling the judge to accept the Justice Department’s reversal and drop the charges. It’s a major win for Flynn, Trump and the Justice Department, but could be contested by a full federal appeals court.
- A prosecutor plans to testify before Congress that senior law enforcement officials intervened to seek a more lenient prison sentence for President Trump’s friend and ally Roger Stone, a salacious allegation of corruption at the Justice Department. “What I heard — repeatedly — was that Roger Stone was being treated differently from any other defendant because of his relationship to the president,” the prosecutor, Aaron S.J. Zelinsky, said in a written opening statement. Zelinsky’s allegations will be undercut by the fact they are second hand in nature.
Your questions, answered.
Reminder: Reader questions are one of my favorite parts of Tangle. You can ask a reader question, or chime in, by simply replying to this email.
Q: How does the Supreme Court choose which cases to hear, and why are they immune from having to comment on why they passed on a case? Do they have to hear a certain percentage of cases during each term? Furthermore, why do they get 2-3 months off each year? Considering their yearly salaries it doesn't make much sense to me unless it's usual for them to be putting in longer-than-average weeks during their term?
— Lyndsey, Philadelphia, PA
Tangle: The first and most important reason that the Supreme Court may decide not to take a case is simple: math.
Every year, there are about 10,000 petitions that make their way to the Supreme Court. That’s 10,000 cases the Supreme Court is asked to consider or hear. The court uses what’s commonly called “the rule of four,” an idea that if four of the nine Supreme Court justices feel a case should be heard, they issue a writ of certiorari. This is a request for the lower courts to send documents up to them for review. Ultimately, the court hears about 75-85 cases a year — meaning some 9,915 cases are turned away.
Generally speaking, the court tries to take on cases it thinks have the most wide-reaching implications or haven’t been previously addressed. It will look to address legal issues that are going to impact the most Americans. Most cases in the Supreme Court are also there because they moved up via appeals in the lower federal courts. Occasionally SCOTUS will hear a case from a state Supreme Court.
The Supreme Court has wide latitude on controlling its workload, which (in part) explains both the vacation days and the lack of explanation for taking a case. The simple answer for why it doesn’t have to explain a rejection is because there’s no law that says they have to. It’s also, again, the math of it. There aren’t enough hours in the day for the court to be legislating, ruling on and writing about some 100 cases a year, while also taking the time to explain how or why it decided to reject the other 10,000. Oftentimes, though, the court will just announce that it upholds the ruling a lower court made — which means there weren’t a majority of justices who felt a case was worth reviewing or arguing.
As for the vacation question — you’re not the only one asking it.
Plenty of people have actually spilled ink excoriating the court for its vacation days. Chief Justice John Roberts, before he led the Supreme Court, once joked that “Only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” Slate published a piece in 2012 hammering the Supreme Court for having a 3-month summer vacation. Here’s an excerpt from that piece:
The justices are free to leave town as soon as they issue their last decision of the term in late June, and they are usually not to be found back in the nation’s capital until the first Monday in October—the official start of the new Supreme Court term. Many of the justices use this chunk of free time to travel, lecture, write books, and teach, among other activities. This summer is no exception: Justice Antonin Scalia spent most of the summer teaching in Austria; Chief Justice Roberts chose to teach in Malta, while Justice Ruth Bader Ginsburg and Justice Samuel Alito did the same in Italy. Not only are these teaching gigs a delightful respite from the swampy heat of D.C., they also let the justices pad their wallets with about $20,000, a supplement to the justices’ $213,000 salaries.
Amanda Frost, who wrote the piece, is a law professor. She essentially argued that by taking the 3 month vacation, SCOTUS allows thousands of potential cases to go unreviewed, and dozens more to go unheard. Even worse is that because those cases pile up, the justices come back to a massive backlog and rush through reviewing them in the month of September. (“For this reason,” Frost notes, “savvy appellate attorneys know that it is best to avoid filing petitions over the summer if they can.”)
Frost also noted in the 2012 piece something I didn’t know: the 80-95 cases the court now hears a year is about half of what it used to hear 20 years ago.
But there are some important benefits, too. First, the justices serve life terms. That means for nine months out of the year, for decades in a row, many of them are cooped up in their chambers debating the law five days a week. That’s a lot of time together, and it’s probably a healthy break to spend a few months away.
It’s also worth noting that the summer vacation, despite being a financial benefit for them, can also be an enriching experience. They travel abroad, teach, meet potential law clerks, interact with the citizens of the country they are presiding over. And that’s to say nothing of the point to make the job attractive to the best legal minds in the world. All of those things seem good to me.
Ultimately, I’m not really sure where I land on the vacation thing — but the reason for it is rather unclear. No other federal judiciaries get summers off, and in 1789 Congress required the first Supreme Court to meet in August, a month earlier than they do now. I think we could probably shave a month off the current three-month recess they get without impacting the court’s psyche too much, and perhaps make room for 10-15 more cases or some more thorough reviews of petitions.
A story that matters.
The IRS just made it a lot easier to take out a loan or withdraw money from your retirement account. The CARES Act had several provisions that temporarily increased how Americans can borrow against their retirement plans and waived the customary penalty for early withdrawal from retirement funds. Those provisions only applied to individuals directly impacted by COVID-19 (people who tested positive or had a spouse or dependent that became ill). Now, though, new guidance widens that category to include anyone financially impacted by the pandemic or who has someone living with them who was financially impacted by the pandemic. As other forms of aid expire, this provision could be a saving grace for some. Click.
- 20,000. The number of pieces of “space junk” and satellites tracked by the U.S. Defense Department.
- 28%. The percentage of college-aged students who think Elizabeth Warren should be Joe Biden’s choice for VP, highest of any candidate.
- 175,000. The number of people who contributed to Joe Biden’s fundraiser alongside Barack Obama, according to the Biden campaign.
- 86%. The percentage of Trump voters who think Trump is going to win the 2020 election.
- 77%. The percentage of Biden voters who think Biden is going to win the 2020 election.
- 3. The number of presidential debates that Joe Biden has agreed to participate in.
- 4. The number of presidential debates that Donald Trump’s campaign has asked for.
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Ontario, Canada, will offer a new curriculum that teaches first graders financial literacy and coding to better prepare them for the future. The curriculum was put together alongside parents, math educators and academics over the course of two years. "I made a promise to parents that we would fix the broken education system we inherited, get back to basics, and teach our children the math fundamentals they need for lifelong success," Premier Doug Ford, Ontario's head of government, said in a statement. By the end of grade 1, students in Canada will understand the basics of coding and financial literacy. Click.