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Constitutional Nit Picking

(Dan here…lifted from Robert’s Stochastic Thoughts)

by Robert Waldmann

Friday, October 02, 2020

Constitutional Nit Picking

I object to this sentence in this article by Paul Kane in the Washington Post “In such a scenario, deciding the presidency falls to the House of Representatives, but in a rare twist mandated by the 12th Amendment after the contested 1800 election, each state’s delegation counts as one vote. “
In fact, we can blame the delegates at the Constitutional Convention (as well as the 7th Congress) for that particular offense against Democracy. Back in 1800, The Constitution Article II Section 1 included “But in ch00sing the President, the Votes shall be taken by States, the Representation from each State having one Vote;” The one state one vote rule does appear in the 12th Amendment, but it was already in the original Constitution. A more important point is that this is only relevant if there is a 269-269 tie in the electoral college. The 12th amendment also says ” The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed;” Notice “Electors appointed” not “More than the number of states plus half the number of representatives” or currently more than 269. It is (still in spite of everything) inconceivable that the race is called before it was agreed who won the tipping-point state, but if it is decided that a President-elect must be declared while the winner of some state is contested, the matter will not go to the House voting one state one vote (as always results must be certified by the House voting the normal way one representative one vote).
It has not always been true that all states are represented in the electoral college. It hasn’t always been true in my lifetime (I was born on November 9 1960 the day after electors were elected November 8 1960 but before those electors Kennedy). In 1960 the electors for Hawaii were never assigned because the outcome was contested when the electors voted. This means that Hawaii had to wait until 1964 to be represented in the electoral college after becoming a state on August 21, 1959.

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“Free-Exercise Protections”

The court is reversing many of the Civil Rights advances and gains (health care, labor protections, and antidiscrimination in public accommodations, etc.) for LGBTQ, women, etc. on the basis that such protections violates a religion’s practices. In essence legal protections for individuals, workers, etc. seeking to engage in ordinary commercial activity are subordinated to a religious belief. I watched such in action at a County Commission meeting as they passed a resolution to deny the right to abortion and birth control coverage for non-unionized women.

The Weaponization of the Free-Exercise Clause, The Atlantic, Howard Gillman and Erwin Chemernsky, September 2020

Some History:

There was a time when the Constitution’s protection of the “free exercise” of religion was a sort of shield, a protection for religious minorities from the prejudices of the powerful. No longer. The Supreme Court’s conservative majority is in the process of transforming this First Amendment clause into a sword that politically powerful Christian conservatives can use to strike down hard-fought advances in civil rights, especially for LGBTQ individuals and women.

At issue is whether religious believers who object to laws governing matters such as health care, labor protections, and antidiscrimination in public accommodations should have a right to an “exemption” from having to obey those laws. In recent years, religious pharmacists have claimed that they should not be required to fill prescriptions for a legal and authorized medical procedure if that procedure is inconsistent with their beliefs. A court clerk whose religion defined marriage as a union of a man and woman has claimed a free-exercise right to refuse marriage licenses to same-sex couples who have a constitutional right to marry. Religious business owners, such as bakers and florists, who object to same-sex marriage have claimed a right to refuse service to same-sex couples. And employers have successfully asserted a right to deny their workers health-care benefits that they would otherwise be entitled to, such as contraception or abortion counseling.

Providing such religious exemptions has required a dramatic change in the law by the Supreme Court. In 1990, in Employment Division v. Smith, the Supreme Court held that the free-exercise clause of the First Amendment cannot be used as a basis for an exception to a general law, no matter how great the burden on religion, unless the government’s action can be shown to be based on animus to religion. The case involved a claim by Native Americans for a religious exception to an Oregon law prohibiting consumption of peyote.

Justice Antonin Scalia wrote the opinion for the Court ruling against the Native Americans and explained that it would be impossible to provide religious exemptions from civic obligations whenever a person disagreed with the law—there are just too many civic obligations and too many different religious views about those obligations. Also, if the government were to begin down this path, it inevitably would face the impossible task of defining a “religious” belief. Such an approach would force the Court to make intrinsically controversial and discriminatory decisions about which religious views were most deserving of special accommodation and which social values should be considered less important than the favored religious views.

This decision was in line with the approach taken by the Supreme Court, in almost all cases, through American history. Courts long held that the Constitution did not require an exception to general laws on account of religious beliefs—that parents could not deny medical aid to their children, that they could not have them work in violation of child-labor laws, even if the work involved dispensing religious literature, that religious schools could not violate laws against racial discrimination, and that a Jewish Air Force psychologist could not ignore the uniform requirement by wearing a yarmulke.

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September 29, 2020 – 5 Federal Courts Have Ruled Against the USPS

Prof. Steve Hutkins at Save the Post Office adds information on court rulings.

The Postal Service is now 0 and 5 in the eleven lawsuits filed against it as a result of the mail delays caused by the operational changes that went into effect in July. Yesterday two more orders were against the Postal Service.

In Pennsylvania v DeJoy, Judge Gerald McHugh of the Eastern District of Pennsylvania ruled that the Postal Service can’t restrict extra or late trips for mail delivery and can’t prohibit overtime. In Vote Forward v DeJoy, Judge Emmet Sullivan issued his second order against the Postal Service.

Here are the five orders that have been issued in federal courts banning the Postal Service from making the kinds of operational changes that caused delays over the summer:

  • Pennsylvania v DeJoyJudge Gerald A. McHugh, Pennsylvania Eastern District Court (Sept. 28, 2020)
  • Vote Forward v DeJoy, Judge Emmet G. Sullivan, District Of Columbia District Court (Sept. 28, 2020)
  • New York v USPS, Judge Emmet G. Sullivan, District of Columbia District Court (Sept. 27, 2020)
  • Jones v USPS, Judge Victor Marrero, New York Southern District Court (Sept. 25, 2020)
  • Washington v Trump, Judge Stanley A. Bastian, Washington Eastern District Court (Sept. 17, 2020)

As a result of these five preliminary injunctions, the Postal Service has had to walk back all the changes it made over the summer as well as making all sorts of commitments about what it will do to ensure timely delivery of mail ballots. That’s good news for voters and others who depend on the Postal Service for things like their medications.

These five rulings should mean something else as well. The Postmaster General and the Board of Governors have received the strongest of rebukes from four federal judges in five cases representing twenty-four states, several national organizations, and many individuals. This turn of events has to be unprecedented, and it has been a total embarrassment for the Postal Service’s leaders. It won’t happen, but they should be thinking about resigning.

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September 28, 2020 Live Blogging USPS New York v Trump

NYU Prof. Steve Hutkins at Save the Post Office

More big news: The judge in the New York v Trump case, Emmet G. Sullivan, has granted the plaintiffs’ motion for a preliminary injunction. His order is here. Much of Sullivan’s order focuses on the Postal Service’s failure to request an advisory opinion from the PRC before embarking changes that have nationwide impacts on postal services.

Judge Sullivan observes that “Plaintiffs have shown that there is a substantial likelihood that the on-going non-speculative harms they allege caused by mail delays are ‘fairly traceable’ to the Postal Policy Changes.” He goes on to state, “Plaintiffs’ complaint alleges a procedural violation—that USPS failed to comply with the requirement that ‘[w]hen the Postal Service determines that there should be a change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis, it shall submit a proposal, within a reasonable time prior to the effective date of such proposal, to the Postal Regulatory commission requesting an advisory opinion on the change.’ 39 U.S.C. § 3661.”

Addressing the question of whether judicial review is available when the Postal Service fails to request an advisory opinion, Sullivan finds that the legislative history of the Postal Reorganization Act: “In the discussion of the section of the PRA that established the ‘procedures for changes in postal service,’ the House Committee Report states the ;[t]he postal service is—first, last, and always—a public service’ and that the PRA ‘require[s] [Postal Services management] to seek out the needs and desires of its present and potential customers—the American public.’ H.R. Rep. No. 91-1104 at 3668.”

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September 27, 2020 Live Blogging Jones vs USPS

NYU Prof. Steve Hutkins at Save the Post Office

An update on the overtime issue in Judge Marrero’s order in Jones v USPS. The proposed order indicated that the parties had not agreed on the wording of the overtime passage, but the final order issued on Sept. 25 said, “USPS shall pre-approve all overtime that has been or will be requested for the time period beginning October 26, 2020 and continuing through November 6, 2020.” That seemed to indicate that the issue had been resolved. But yesterday the USPS filed an additional affidavit by David E. Mills, Manager of Labor Relations and Program, challenging the wording of this section of the order.

Mills says the overtime passage in the order “will create a severe burden whereby employees other than local management, in whom such decisions are current vested, may request and work overtime hours, including on behalf of others, on the basis of the Order, even though they have no role in planning or management of operations.” Implementing the overtime passage as written “would be impracticable and would likely lead to widespread confusion among employees and management officials.”

Along with the Mills’ testimony, the USPS has submitted a Memorandum of Law arguing about the overtime passage in the order. The Government wants clarification of the passage “or relief from these provisions through their modification.” “In the alternative, the Government requests that the Court extend the stay of Paragraphs 3 and 7(f) currently in effect, pending a determination by the Office of the Solicitor General of whether to appeal from the PI Decision.”

The parties are still working on a revision of the passage.

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September 26, 2020 Live Blogging the USPS Jones v USPS

Prof. Steve Hutkins at Save the Post Office

New in Jones v USPS: Late yesterday, Judge Marrero issued his order on the case. It’s essentially the same as the proposed order, but the parties are still trying to work out the overtime issue.

The Postal Service has provided much more information to the Court concerning its policies and practices in handling Election Mail over the coming weeks:

DOJ letter to Judge Marrero, Sept. 25, 2020: This letter describes the contents of the material being submitted to the Court and provides a good overview of how the Postal Service will handle Election Mail.

Calculations on Cost for Delivering Election Mail as First Class: Judge Marrero asked the Postal Service to provide an estimate for how much it will cost to treat Election Mail sent at Marketing Mail rates as First Class (one of the points on which the parties have agreed). The Postal Service says that between Oct. 15 and Nov. 3, it expects to handle about 170 million pieces of such mail (a mix of letters and flats). Figured as “revenue foregone” (i.e., based on the rates mailers pay), it will cost the Postal Service $69.4 million. Figured in terms of the Postal Service’s own direct (attributable) costs, it will cost the Postal Service $39.1 million.

Clarifying Operational Instructions (Sept. 21, 2020) Memo from Executive Vice Presidents David E Williams and Kristin A. Seaver to Officers, PCES, and Band Managers. This memo clarifies the Postal Service’s practices concerning overtime, hiring, retail hours, collection boxes, late and extra trips, mail processing, and Election Mail as they currently stand.

Additional Resources for Election Mail Beginning October 1 (Sept. 25, 2020) Memo from David E. Williams and Kristin A. Seaver to Officers, PCES, and Band Managers. This memo describes the additional resources being made available with regard to mail processing, transportation, delivery/collections, and overtime. Between Oct. 26 and Nov. 3, the Postal Service will take “extraordinary measures” to ensure the timely delivery of Election Mail, including expedited handling, extra deliveries, and special pickups.

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September 25, 2020 Live Blogging the USPS Jones v USPS

Prof. Steve Hutkins at Save the Post Office

The plaintiffs in Jones have reached an agreement with the Postal Service that settles the case for now. The outline of the agreement is similar to the commitments in the Sept. 24 Standup Talk on Election Mail, but there are some more specific details.

The agreement states the following (the rest is quoted from the proposed order):

The USPS shall, to the extent that excess capacity permits, treat all Election Mail as First-Class Mail or Priority Mail Express.

Specifically, USPS shall prioritize identifiable Election Mail that is entered as Marketing Mail, regardless of the paid class, including advancing Election Mail entered as Marketing Mail ahead of other Marketing Mail and processing it expeditiously so that it is generally delivered in line with the First-Class Mail delivery standards; expanding processing windows on letter and flat sorting equipment to ensure that all Election Mail received prior to the First-Class Mail Critical Entry Time is processed that same day; and prioritizing Election Mail, including ballots entered with Green Tag 191, when loading trucks.

This paragraph (Paragraph 1) shall not be construed to require USPS to change its policies that generally do not include the transportation of Election Mail entered as Marketing Mail by air; or to extend other features of First-Class Mail, distinct from delivery speed, to Election Mail entered as Marketing Mail. However, USPS will employ special individualized measures to expedite handling of individual voter ballots mailed close to Election Day, regardless of paid class, which may include manually separating them and moving them by air or according to Priority Mail Express delivery speed standards, consistent with practices used in past elections.

No later than October 1, 2020, USPS shall submit to the Court a list of steps necessary to restore First-Class Mail and Marketing Mail on-time delivery scores to the highest score each respective class of mail has received in 2020, which are 93.88 percent for First-Class Mail and 93.69 percent for Marketing Mail, and shall thereafter make a good faith effort to fully implement the listed steps.

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Questions for Amy Coney Barrett

I would like to propose a set of questions for the Amy Coney Barrett confirmation hearings.

I would ask about her interview with Donald Trump.

1) in the interview, did the president talk about himself at all ?

Both answers are costly. We all know he did (he always does) so to answer no is to blatantly like.
A yes answer leads to following questions (which I would ask in any case).

Barrett will refuse to answer, saying the conversation should be private.

2. I’m not asking if he said he had a headache, My concern is whether he said anything about the upcoming Presidential election aand whether it might be contested.

Again the answer no is an obvious lie. Also refusing to answer suggests that the answer is damaging to her (as the true answer certainly is).
She will refuse to answer

3. So you refuse to say that he didn’t suggest that he wants you confirmed so you can side with Trump in a possible upcoming Trump V Biden case ?

She has to refuse.

4. Did he ask you to assure him that you would vote in his favor if there were such a case ?

Here she has to answer no. It is very costly to refuse. If she answers yes (almost certainly the honest answer) then she can’t refuse to answer when asked how she replied.

5. Here under the extremely unlikely hypothesis that she answers yes, she would have to claim she told him she can’t make that promise about a purely speculative case for which the facts haven’t even occurred yet. That would be an obvious lie. If she had been asked and gave that answer, she would not have been nominated.

So she will answer no, but then argue that the conversation is confidential and she shouldn’t answer other questions about it. I think the questions lead her to contradicting herself.

She could stick to refusal to answer, but if she refuses to answer “did you promise to President Trump that you will favor him in an upcoming Trump V Biden case ?”

Then she has some trouble.

Then ask if she promises to recuse herself if there is a Trump V Biden case (she has to answer that one).

This doesn’t distract from the gross impropriety of blocking Garland then rushing Barrett.

The questions are not polite or normal, but the situation is clearly not normal either.

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Republicans and McConnell’s Lies

Nine Supreme Court vacancies in place during election years in SCOTUS’s post – Civil War era. It is simple, Republicans as led by McConnell lied to the American people. McConnell would call out to Democrats stating “the American voters” want truthful politicians. Has McConnell been truthful to “the American People?”

2016: McConnell’s Lies: “I believe the overwhelming view of the Republican Conference in the Senate is that this nomination should not be filled, this vacancy should not be filled by this lame duck president.

The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be.”

All we are doing is following the long-standing tradition of not fulfilling a nomination in the middle of a presidential year.

There is no such tradition. The table (Brookings) shows the nine Supreme Court vacancies in place during election years in the Court’s post-Civil War era – once Congress stabilized the Court’s membership at nine and the justices largely stopped serving as trial judges in the old circuit courts. Furthermore, McConnell and Republicans care less able the American people. It is the 1-percenters Republicans care about.

2020 McConnell’s Lies:“Since the 1880s, no Senate has confirmed an opposite – party president’s Supreme Court nominee in a presidential election year.”

From the 1890s until the 1950s there were only unified governments and offers no test of whether divided government would have confirmed them. McConnell lies again. Second, McConnell does not include the 1880s’ when there were two divided-government confirmations. There were also two more recent divided-government vacancies which were filled by a divided Senate:

– In 1988, the Democratic-majority Senate voted 97-0 to confirm Justice Kennedy (after the 1987 rejection of the controversial Bork nomination).
– In 1956, Eisenhower made an uncontested October recess appointment of Justice Brennan. Had the Senate been in session, it would have confirmed a Brennan nomination as it did early in 1957.

The problem is simple. Republicans should own up to McConnell’s lies in 2016 and his present lie in 2020 they are using to justify their actions in support of trump. In 2016, they established a basis for their actions (by lying) which they now want to ignore in 2020. This is not about a process. It is about politics where none existed before historically and the subsequent lies to change it for political advantage.

McConnell’s Fabricated History to support his claims.

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Who Is Replacing Justice Ruth Ginsburg?

DAILY KOS’s Joan Mc Carter gives an excellent rundown on trump’s two dumpster candidates (Amy Coney Barrett and  Barbara Lagoa) for SCOTUS to replace Justice Ruth Ginsburg. Putting their names in the same  sentence as Justice Ruth Ginsburg’s should not diminish her but it does not preclude how low Repubs will stoop to achieve their goals as their power continues to diminish. Trump’s Supreme Court short list includes member of the sect that inspired the ‘Handmaid’s Tale’. The author takes care to assign a name to each detailing their character.

Amy Coney Barrett, “representing The Handmaid’s Tale as societal model wing

 She belong to an extreme, charismatic wing of the Catholic Church called People of Praise, which actually did serve as the inspiration for Margaret Atwood in her dystopian novel, The Handmaid’s Tale. The book was published in 1985 after Atwood “delayed writing it for about three years after I got the idea because I felt it was too crazy,” she told The New York Times Book Review in 1986. “Then two things happened. I started noticing that a lot of the things I thought I was more or less making up were now happening, and indeed more of them have happened since the publication of the book.” Specifically: “There is a sect now, a Catholic charismatic spinoff sect, which calls the women handmaids. They don’t go in for polygamy of this kind but they do threaten the handmaids according to the biblical verse I use in the book—sit down and shut up.” Yeah, that’s Barrett’s church. Except they’ve dropped the “head” moniker for male leadership and “handmaids” title for women who keep their fellow women in line because the television series based on the novel forced a change. They are now all called “leaders,” who direct such intimate life decisions of members as who they marry, where they live, and how they raise their children.

Barrett:  a “legal career is but a means to an end and to that end, is building the Kingdom of God.” She’s also written that judges shouldn’t necessarily be held to upholding Supreme Court precedents like Roe v. Wade, which she almost certainly would vote to restrict out of existence. Barrett’s religion came up briefly in her confirmation hearing for her current position on the U.S. Court of Appeals for the 7th Circuit. California Democrat Dianne Feinstein mentioned: “The dogma lives loudly within you,” and the entire Republican world erupted, accusing Feinstein of trying to impose an unconstitutional “religious test” on nominees. The issue pretty much ended there. It can’t end there in hearings should Trump nominate Barrett. That is, if McConnell and Judiciary Chairman Lindsey Graham don’t just decide to forego hearings and send her straight to the floor. At this point, McConnell could probably get 51 Republican senators to do anything for Trump.

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