Feb 25, 2020

The Supreme Court plunges into politics.

The Supreme Court plunges into politics.

Plus, is Trump's base souring on his immigration plan?

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Today’s read: 8 minutes.

The Supreme Court gets dragged into the mess, a story about Trump’s base stirring against him and a question about The Logan Act.

Photo: Fred Schilling, Collection of the Supreme Court of the United States

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There’s another debate (yes, another one!) in South Carolina. Unlike the last debate, though, this one will feature two billionaires — not just one. Tom Steyer will be on stage and he is polling surprisingly well in South Carolina, which votes in the primary race on Saturday. The latest Marist poll shows Joe Biden leading the pack in South Carolina with 27% of the vote to Bernie’s 23%. But many South Carolinians are still “persuadable.” It’s the tenth debate of the cycle and you can watch it on CBS at 8 p.m. EST.

What D.C. is talking about.

The Supreme Court. Last night and into this morning, President Trump has been attacking liberal justices like Sonia Sotomayor and Ruth Bader Ginsburg. His attacks came after Sotomayor issued a sharply written dissent in a Supreme Court ruling last week that stemmed from some big wins for the Trump administration over the last few months. It started a few weeks ago when the court allowed the Trump administration’s “public charge” rule to go into effect. The rule expanded the definition of “public charge” to include immigrants who would be dependent on government benefits like Medicaid or food stamps. If an immigrant is a public charge, immigration officials have the right to block them from entry.

But it’s not so much that the court allowed the rule to go into effect — it’s how they allowed it to go into effect. The court granted “emergency” relief, or a “stay,” essentially lifting a lower court’s national injunction that blocked the new rule from going into effect. It is sort of like the Supreme Court is punting — telling the administration they will let them move forward with a policy position while the lower courts sort out combatting rulings.

Then, last week, the court again issued a stay on the same public charge case — but this time in a lower court ruling that applied only to Illinois. In her vote against issuing a stay on the lower court ruling, liberal Supreme Court Justice Sonia Sotomayor wrote a critical dissent accusing the court of “thumbing the scale” in favor of the federal government when it seeks emergency relief, which is supposed to be an extraordinary position for the government to take. “It is hard to say what is more troubling: that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it,” Sotomayor wrote. In order to get an emergency stay from the Supreme Court, the government is supposed to demonstrate “irreparable harm” if a lower court order is allowed to go into effect. After a Fox News report on Sotomayor’s writing which alleged that she accused other justices of being biased in favor of Trump, the president attacked Sotomayor in a pair of tweets, even dragging in Ruth Bader Ginsburg (who once called him a “faker” in 2016). He demanded both “recuse” themselves from Trump-related cases.

What the left is saying.

Sotomayor has a point. Stephen Vladeck, a professor at the University of Texas Law, actually pointed it out before Sotomayor did. Via The Washington Post:

In November, he wrote that Trump’s solicitor general “sought emergency stays in 20 cases in the first two-and-a-half years of Trump’s term, including six to stop nationwide injunctions against Trump’s travel ban and three involving the transgender military ban. By comparison, in all 16 years of the Obama and George W. Bush administrations, the solicitor general filed a total of eight stay applications.”

Others just stared, jaw agape, as the president tried to tell two Supreme Court justices to “recuse” themselves. Brian Fallon said “Trump is attacking her for speaking the truth” and said progressives were “planning a protest at the Supreme Court next week to speak out against the Court's pro-Trump bias.” Others say Trump is crossing “another red line” and “no one does anything about it.” All of this comes just days after a report that Supreme Court Justice Clarence Thomas’s wife helped the Trump administration put together a list of people to purge from his administration.

What the right is saying.

Elections have consequences. President Trump’s victory gave him the right to nominate the justices he wanted, they were approved through the procedures put in place by our constitution and they are acting well within the law. Give Trump some credit for his clever strategy of fighting back against the liberal judges in the lower courts — he’s taking every issue all the way and buying himself some time while the courts sort things out. Sotomayor’s statements were out of line — she’s essentially accusing justices that come to a different conclusion than her of somehow working alongside the Trump administration. “I just thought it was so inappropriate, such a terrible statement for a Supreme Court justice,” Trump said in India today. “She’s trying to shame people with perhaps a different view into voting her way, and that’s so inappropriate.”

As for the court’s decision, it’s not actually the Supreme Court that is out of control. It’s the lower courts. The “real problem,” Neil Gorsuch argued, is that district court judges all over the country are issuing far too many nationwide injunctions to stop Trump’s policies from ever going into effect. Those injunctions cause “chaos” by leaving some states operating on different federal policies than other states. Then they force the Supreme Court to make a decision when the Trump administration brings the cases forward.

My take.

It’s really not that unusual for a president to criticize the decisions of the Supreme Court or even the lower courts. What’s Trumpian here is that he’s going after specific justices by name. I do think RGB’s comments from 2016 were inappropriate — and so did she. That’s why she said she regretted making them. But I’m far less sold on the way Sotomayor is being framed or any alleged bias she has towards her fellow justices and Trump. There’s no doubt she is a liberal justice, but there seems to be some mishandling of this story.

Sotomayor never actually accused conservative justices of pro-Trump bias. That’s really just what Fox News ran in a television segment and it’s what Trump ran with on Twitter. What Sotomayor did, if you read her seven-page dissent, is accuse the majority of repeatedly tipping the scales in favor of the federal government when emergency relief filings are being made. And that is a pretty fair take on what’s happening. A stay is supposed to be the answer when the courts can’t remedy a case — not when a case hasn’t made its way through the courts yet. The numbers tell the story: 20 cases in two-and-a-half years versus eight cases over the 16 previous years. It is also concerning that the court continues to grant these stays when the White House is supposed to be demonstrating “irreparable harm.” As Sotomayor asked, in this case, the federal government is claiming irreparable harm because one state — Illinois — had a court rule against changing a 20-year-old status quo. They’d already put a stay on the national injunction weeks ago; what is the irreparable harm of not changing a longstanding rule in one state when the courts in that state have ruled against the public charge policy?

Vladeck put it like this: “A majority of the Justices now appear to believe that the government suffers an irreparable injury for purposes of emergency relief whenever a statute or policy is enjoined by a lower court, regardless of the actual impact of the lower court’s ruling.” I think that pretty much hits the nail on the head.

Your questions, answered.

Reminder: Tangle is all about reader questions. To ask something, all you have to do is reply to this email and write in.

Q: Senator Chris Murphy posted a thread yesterday on Twitter talking about a discussion he had with the Iranian Foreign Minister while in Europe. A lot of replies were about the Logan Act and how he violated it and this was a hypocritical move as he was a supporter of Impeachment of Donald Trump. If you're familiar with the thread is it a violation?

- Branden, Kansas City, MO

Tangle: First off, this story didn’t actually start with Murphy’s Twitter thread. It started with reporting from conservative websites like The Federalist about Murphy meeting with Iranian Foreign Minister Javad Zarif in Munich last week — without the State Department’s approval or knowledge. It should be noted that The Federalist is a news outlet with an agenda, one that hides its own funding and frequently peddles in what I’ll call selective and overtly biased reporting. However, that doesn’t mean all their reporting is bad — just like HuffPost or Jacobin have overt biases, they also have great reporting sometimes.

In this case, The Federalist’s reporting appears to be rock solid. Murphy initially didn’t respond to their request for comment, and then on Tuesday he finally published an account of his trip and described it as a “mission.” Murphy said he “cannot conduct diplomacy on behalf of the whole of the U.S. government, and I don’t pretend to be in a position to do so. But if Trump isn’t going to talk to Iran, then someone should.”

Now, The Logan Act. It’s sort of like the emoluments clause — it’s a piece of semi-archaic, obscure U.S. law that a lot of people like to cite to pretend they know what they’re talking about. The general gist is that the Logan Act says an individual can’t negotiate with foreign governments without U.S. approval. It hasn’t been used since 1852, and it was drafted after a Philadelphia doctor named George Logan traveled to Paris and got concessions from their government that George Washington was opposed to. The Act was authored to stop people from doing what he did again.

It’s come up recently, too. Rudy Giuliani was accused of violating the Logan Act for conducting bizarre business-politics in Venezuela where he was conducting all sorts of negotiating on transfers of power while also poking around on some business dealings. Democrat and former Secretary of State John Kerry, too, was accused of violating the Logan Act for talking to Iran’s regime in 2018. In fact, Giuliani was one of the people who accused Kerry of the violation. And now, as more details about this story have come out, we learned that Kerry was once again involved. He was with Murphy at the meeting in question just a couple of weeks ago.

As you may be picking up here, the accusation that someone violated the Logan Act is basically a political play disguised as genuine concern for the law. In reality, there’s a reasonable case Murphy, Giuliani and Kerry all violated the Logan Act — but it’s not that big of a deal on its own. I’d say Murphy, who serves on the Committee on Foreign Affairs (and the subcommittee on the Middle East) is the most legit of all these actors. I mean, it is literally his job. Now, in a normal administration or normal times, the Secretary of State or State Department would know about such meetings. In this case, they didn’t — and that’s concerning. It’s also worth noting that Murphy could be undermining the State Department’s prerogatives which, whether you agree with him not, is not a successful blueprint for diplomacy. The Federalist reporters also tried to pin Murphy for hypocrisy, noting:

In 2017, Murphy demanded an investigation into then-National Security Adviser Mike Flynn because he had a phone call with a counterpart in Russia. “Any effort to undermine our nation’s foreign policy – even during a transition period – may be illegal and must be taken seriously,” Murphy said.

Again, I think Murphy was more in his right for such contact than Flynn (who was not yet serving an acting president) or Kerry (who was not working in government) or Giuliani (who seemed more interested in his own business dealings). Kerry’s involvement again is particularly bad optics. He defended himself by noting that he did “no negotiating” and said simply: “I did what any senator and secretaries of state in history have done, which is continue to go to conferences abroad or have meetings in order to be well-informed.” Fine. But once again sitting down with Zarif after already being accused of violating the Logan Act two years ago seems like a dumb move, especially when you have no role in government. I think all of it is not great, but the Logan Act accusations aren’t anything to take too seriously. It’s more political theater than anything else. I’d say Giuliani’s offenses are the worst, Kerry’s are a close second and Murphy’s are a level or two down. But given that no person has been prosecuted for the Logan Act in nearly 200 years — and even in the 19th century there were just two indictments for such violations — I wouldn’t expect this to go anywhere.

Special thanks to Cameron Guidry, my research assistant who did a big dive on the history of the Logan Act this weekend.

A story that matters.

It’s quite rare that President Trump receives friendly fire from conservative news outlets, but he is suddenly taking on some heat from American Greatness — one of the most reliably pro-Trump conservative websites out there (and one that has been accused of racism and white supremacy by other conservatives). In a story titled “Trump is betraying the working class,” Pedro Gonzalez makes the case that the president is facilitating illegal immigration, undermining the wages of vulnerable Americans and perpetuating a system ripe for exploitation. This comes after Trump officials confirmed plans to invite 45,000 seasonal guest workers under the H-2B visa program, the most seasonal workers invited into the U.S. since Trump was elected. That’s after 34 Republicans signed the Farm Workforce Modernization Act, which gives a pathway to citizenship for an estimated 1.5 million foreign workers who are in the U.S. illegally. For the last three years, liberals and some far-right conservatives (like Ann Coulter) have called out Trump for hypocrisy on immigration. He preaches a hardline immigration stance in front of audiences who love that rhetoric, but he hires undocumented immigrants at his properties, has fumbled his best chances to build the wall and is now capitulating on immigration reform in a way that will certainly anger his base. Despite all that, it’s been rare to see this level of awareness and anger from some of Trump’s most reliable voters. It’s worth keeping an eye on, especially with an election looming and — as far as I can tell — no plans for Trump to change course now. These immigration plans will impact millions of Americans. You can read the American Greatness story here (again, this is an openly far-right news outlet) or the more center-right coverage of the H-2B program from The Wall Street Journal here.


  • $2 million. The amount of the money the RNC has spent at Doral, Trump’s Florida property, since Donald Trump’s election.
  • $2.5 million. The amount of money convicted rapist Harvey Weinstein has donated to or raised for the Democratic party.
  • 20%. The percentage of Democratic primary voters/caucus-goers who said they regularly use Twitter for political news, according to Edison Research exit polls.
  • 43%. The percentage of likely voters polled in Kentucky who say they will vote for Mitch McConnell in the upcoming 2020 Senate race.
  • 40%. The percentage of likely voters polled in Kentucky who say they will vote for McConnell’s challenger, Amy McGrath, in the upcoming 2020 Senate race.
  • 12%. The percentage of voters who are still undecided in that election.
  • 27%. Joe Biden’s support among likely Democratic voters in the critical South Carolina primary, which will take place on Saturday.
  • 23%. Bernie Sanders’s support among likely Democratic voters in the critical South Carolina primary, which will take place on Saturday.

Have a nice day.

A Texas company says it has successfully developed a coronavirus vaccine and it just needs the government’s approval. The “genetic engineering company” Greffex says it completed the vaccine this week and is moving onto animal testing as required by the U.S. government. Greffex says it will distribute the vaccine to other countries for free if the U.S. government can fast track its approval. In September, the National Institute of Health’s National Institute for Allergy and Infectious Diseases gave the company $18.9 million to fight infectious diseases, which it says it put into a coronavirus vaccine when the outbreak started. The vaccine has not yet been approved or verified by outside companies but Fox Business has reported on its development — and it is giving a sliver of hope that legitimate help may be moving its way to the public. Click.

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