James.galbraith

Republicans now realize the worst thing that could happen to them politically is getting what they want substantively, and they're flailing.

Doug Mastriano’s extreme views and apparent proclivity for Christian nationalism are growing harder for him to deny by the minute. 

On Friday Rolling Stone published an exclusive report and shared for the first time a video of Mastriano—now the Republican nominee for governor in Pennsylvania—from December 2020 where he kicked off a prayer meeting organized by the extreme right-wing, pro-Trump New Apostolic Restoration movement. 

His prayer before the fundamentalist group was laden with the language of warfare and darkness and steeped in references to the battle between good and evil forces. But at the center of his remarks was the request that God “embolden” the leaders of the Republican Party, namely Mitch McConnell and Kevin McCarthy, to ignore the 2020 election results in Pennsylvania and help Donald Trump seize power.

The insurrection at the U.S. Capitol would unfold a week later. 

The video has not been published before, though Mastriano’s participation at the meeting was reported for the first time a year ago by a nonprofit organization with an eye on right-wing extremism known as Right Wing Watch. Rolling Stone only obtained the video through the help of an independent researcher and longtime analyst of the New Apostolic Restoration movement, Bruce Wilson.

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This prayer meeting was one of more than a dozen “Global Prayer for Election Integrity” sessions organized by an evangelical leader of the New Apostolic Restoration movement, Jim Garlow.

Garlow has had the support of Republican lawmakers and politicians—see Newt Gingrich—for years. His belief that the Bible, and more specifically Christianity, are the principles that should govern politics above all else make up core tenets in his ministry. God, according to Garlow, “originally established government.”

At its core, this is also what defines Christian nationalism, or the unequivocally anti-democratic belief that it is God’s most fervent intent that the United States population be 100% Christian, no exceptions. 

When Trump was in office, Garlow was a regular champion for Trump’s agenda. He prayed over the former president in the White House in 2017 along with two dozen other prominent evangelical figures. And when the 2020 election finally came around, the group lined up to vocally and unapologetically support Trump’s claims of rampant election fraud and rigged outcomes. 

Mastriano was one of many Republican voices who decried Trump’s defeat to now President Joe Biden and he promoted the lie that fraud had undercut the 45th president’s so-called “victory.” On the morning of Jan. 6, Mastriano was in Washington, D.C., just outside the Capitol building, snapping pictures with pro-Trump former Pennsylvania House Rep. Rick Saccone and walking with his wife on the Capitol’s northwest lawn.

Mastriano appeared to be enjoying the fruits of his labor. His office had, after all, paid to have people bussed to the Capitol on Jan. 6 and as The New Yorker pointed out in an extensive profile of him and his history of Christian nationalist support, he told his supporters days before the Capitol attack: “I’m really praying that God will pour His Spirit upon Washington, D.C., like we’ve never seen before.” 

Though he initially denied being there at all, Mastriano later aggressively defended his presence on Capitol grounds on Jan. 6, saying he obeyed police lines as they “shifted” throughout the day. He’s relegated scrutiny of his actions as an “obsession” by “foot soldiers of the ruling elite.”

In a radio interview with NEWSTALK 1037FM uncovered last year by the watchdog group, Pennsylvania Spotlight, Mastriano said he saw at least two people try to breach the Capitol. 

At least one person who took Mastriano’s charter bus to Washington on Jan. 6 was Sandra Weyer of Mechanicsburg, Pennsylvania. According to court records, Weyer was arrested on a single felony charge of obstructing Congress and faced four misdemeanor charges including disorderly conduct for encouraging the assault of a photojournalist with The New York Times. 

In the prayer video that surfaced Friday, Mastriano is seen clutching letters that he says Trump sent to him that morning “outlining the fraud in Pennsylvania.” 

“I pray that … we’ll seize the power that we had given to us by the Constitution, and as well by You, providentially. I pray for the leaders also in the federal government, God, on the sixth of January that they will rise up with boldness,” he said. 

He has flatly denied being involved with Garlow or the New Apostolic Reformation movement. 

A key excerpt from the Rolling Stone report highlights how flagrantly unbelievable that statement is, however. Researcher Bruce Wilson, who first secured the tape of Mastriano, weighed in:

“Wilson finds Mastriano’s denials risible. “If Mastriano wasn’t a true [New Apostolic Reformation] believer, why was he there praying before them, and taking on the heroic mantle of Gideon?” he asks. “He didn’t just wander in off the street, he was invited.”

Noting the pine-tree flag adopted by Christian Nationalists in the background,

Wilson adds that Mastriano’s prayer was pitched perfectly to a NAR audience: “He speaks their vernacular so well, it’s hard to imagine he’s not all in.” 

Mastriano did not immediately return a request for comment to Daily Kos on Friday. 

The Republican nominee for governor of Pennsylvania has a long history of aligning himself with far-right policy and values.

As underlined by The American Independent in a comprehensive piece published Thursday, his campaign has hired former Oath Keepers to serve as security. Local online news outlet LancasterOnline turned up that connection in August. Mastriano has posed in a faculty photo at the Army War College donning a Confederate uniform. He’s been caught on tape praising a man wearing a Confederate flag as a cape as he stood in front of a statute of Confederate General Robert E. Lee.

Mastriano has also vowed to ban abortions after six weeks if elected governor of Pennsylvania. He’s vowed to make entire state of Pennsylvania re-register its voters. This is something most legal experts overwhelmingly say violates federal law and most likely runs afoul of state law. 

On Friday, The Philadelphia Inquirer published a report unpacking the “paranoia” that has seemingly overwhelmed Mastriano’s campaign. Dissension of any kind appears not to be tolerated. A “loyalist” to Mastriano who mentioned the words “January 6” during a recent campaign event was threatened to be removed before those in Mastriano’s camp realized she wasn’t there to question or criticize Mastriano about the insurrection. In fact, the Inquirer reported, she was just remarking about how she was in Washington on Jan. 6, too. 

As of Friday, there are just 60 days left until the Pennsylvania midterm elections and the first date to vote early in person there is Sept. 19.

As the midterms approach, McClatchy highlighted in a report Friday that Mastriano has not aired any television commercials since May 16 and has not scheduled any upcoming ads for TV in the final weeks before the primary. Alternatively, Mastriano's Democratic opponent in the gubernatorial race, Josh Shapiro, has arranged to spend almost $30 million in on-air advertisements for his campaign.

Jim Schultz, the former counsel to onetime Republican governor for Pennsylvania Tom Corbett, told McClatchy he didn’t believe Mastriano had raised enough money to run ads in the expensive southeast Pennsylvania markets. 

 “I think the lack of support for Mastriano is unprecedented and warranted,” Schultz said. 

Meanwhile, the Jan. 6 committee remains at odds with Mastriano for now. Though he initially said he would cooperate with the probe, he’s since turned his back on investigators and sued them to avoid complying with a February subpoena.

Donald Trump and his MAGA allies came close to overthrowing our democracy on January 6, and they will try again if they win in 2022. The best thing you can do is to help get out the Democratic vote for the midterms, and we need everyone to do what they can. Click here to find all the volunteer opportunities available.

RELATED STORY: Doug Mastriano sues Jan. 6 probe, claims he cannot be deposed

Abortion rights will be on the Michigan ballot in November thanks to hundreds of thousands of voter signatures and a decision from the state Supreme Court … and Republican gubernatorial nominee Tudor Dixon is desperately trying to turn that into a positive for herself.

Dixon is an anti-abortion extremist, known for saying that a 14-year-old raped by her uncle would be a “perfect example” of Dixon’s opposition to rape and incest exceptions in abortion bans, and that pregnancy from rape can lead to “healing through that baby.” So you might think that having voters directly motivated to turn out to protect abortion rights would be bad news for her given a poll that found 60% support for the ballot measure.

Republicans tried to keep abortion rights off the Michigan ballot, but a narrow edge on the state Supreme Court means voters will get their say. Can you chip in $3 to win key state Supreme Court seats and protect our rights in moments like these?

RELATED STORY: Michigan Supreme Court orders board to place abortion protections, voting rights on November ballot

The poll, from WDIV/Detroit News, also found that support for the abortion rights ballot measure was the top factor motivating voters to the polls, ahead of inflation, education, and crime. Again, bad news for Dixon. 

She’s trying to make lemonade out of those lemons, though:

No, really. “Vote to protect abortion rights, then vote for me because I will no longer be able to take away your abortion rights. It’s almost like you’re voting for abortion and against it at the same time!” It’s pathetic, but it also shows that Dixon is as dangerously dishonest as she is extremist. 

Donald Trump and his MAGA allies came close to overthrowing our democracy on January 6, and they will try again if they win in 2022. The best thing you can do is to help get out the Democratic vote for the midterms, and we need everyone to do what they can. Click here to find all the volunteer opportunities available.

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Queen Elizabeth II has died at 96 after a 70-year reign, Buckingham Palace announced Thursday. Earlier in the day, the queen was reported to be under “medical supervision,” after months of declining mobility and missed engagements. Elizabeth’s family traveled to Balmoral Castle in Scotland, where she has long spent her summers, as the news of her rapidly declining health emerged.

At the time Elizabeth was born, in 1926, her father was the Duke of York, but he took the throne after his older brother, King Edward VIII, abdicated. King George VI died in 1952, and his daughter became queen, and, eventually, the longest-reigning British monarch. Married for 73 years to Philip Mountbatten, she had four children: Charles, Prince of Wales; Princess Anne; Prince Andrew; and Prince Edward. 

The queen’s death comes at a time of turmoil for Great Britain. Just this week, Liz Truss became prime minister after Boris Johnson was forced out by a series of scandals. Inflation is high in the United Kingdom, and expected to peak this fall. The country faces a major labor shortage. Whatever you think of monarchy in general or Britain’s in particular, Queen Elizabeth II has been a defining figure in the life of the nation for 70 years. 

She will be succeeded by Prince Charles, himself already 73 years old.

Until about a month ago, shoppers on Dell's website looking for a new laptop could log in using their Facebook credentials to avoid creating a new username and password. That option is now gone. Dell isn't alone. CNBC: Other big brands, including Best Buy, Ford Motor, Pottery Barn, Nike, Patagonia, Match and Amazon's video-streaming service Twitch have removed the ability to sign on with Facebook. It's a marked departure from just a few years ago, when the Facebook login was plastered all over the internet, often alongside buttons that let you sign in with Google, Twitter or LinkedIn. Jen Felch, Dell's chief digital and chief information officer, said people stopped using social logins, for reasons that include concerns over security, privacy and data-sharing. "We really just looked at how many people were choosing to use their social media identity to sign in, and that just has shifted over time," Felch said. "One thing that we see across the industry is more and more security risks or account takeovers, whether that's Instagram or Facebook or whatever it might be, and I just think we're observing people making a decision to isolate that social media account versus having other connections to it." The disappearing login is the latest sign of Facebook's diminishing influence on the internet following more than a decade of spectacular growth. In the past year, the company's business has been beset by Apple's iOS privacy change, which made it harder to target ads, a deteriorating economy, competition from short-video service TikTok, and reputational damage after a whistleblower leaked documents showing Facebook knew of the harm caused by many of its products.

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Jesus Christ is listed as co-author in a few places. I tried to find his Erdos Number but couldn't figure it out. 4 Internet Points to anyone who does.

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In a just-released ruling, the Michigan Supreme Court has ordered the Board of State Canvassers to certify for the ballot the Reproductive Freedom For All petition intended to enshrine abortion rights into the state constitution. "It is undisputed that there are sufficient signatures to warrant certification," notes the court, while shooting down arguments over "sufficient space between certain words."

Republicans on the Board of State Canvassers refused to certify the ballot measure a week ago despite a record number of signatures presented, claiming missing spaces in one version of the petition was an invalidating flaw. The state's Supreme Court rejected that argument, with Chief Justice Bridget McCormack noting that "the challengers have not produced a single signer who claims to have been confused by the limited-spacing sections in the full text portion of the proposal" and calling the decision of the Republican board members a "sad marker of the times."

"They would disenfranchise millions of Michiganders not because they believe the many thousands of Michiganders who signed the proposal were confused by it, but because they think they have identified a technicality that allows them to do so, a game of gotcha gone very bad," wrote McCormack.

In a separate ruling, the court also ordered the board to certify for the ballot a measure to expand voting rights that was also blocked by the the board's Republican members. The court's willingness to reject partisan gamesmanship meant to deny the right of voters to even challenge recent Republican maneuvers to restrict rights is an important reminder of how vital state court races remain.

The Republican member of the court up for reelection in November, Justice Brian Zahra, dissented in both rulings. Democratic Justice Richard Bernstein, who is also on the ballot, voted with the majority in both cases. In a footnote in a concurring opinion, Bernstein lacerated Zahra’s dissent:

Justice Zahra notes that, as a wordsmith and member of this Court, he finds it "an unremarkable proposition that spaces between words matter." As a blind person who is also a wordsmith and a member of this Court, I find it unremarkable to note that the lack of visual spacing has never mattered much to me.

Democrats are defending a narrow 4-3 majority on the court, which they first won in 2020.

These rulings show just how important it is that we protect the Michigan Supreme Court. Click here to donate $10 or whatever you can to support Democratic candidates for the court!

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The ruling from Judge Aileen Cannon, which grants Donald Trump an unprecedented “special master” and enjoins the Department of Justice from using the documents Trump stole in their criminal investigation, will be appealed. The ruling was always ridiculous and posed a threat to both the law and national security.

Now the Department of Justice (DOJ) has announced that it will appeal Cannon’s ruling to the 11th Circuit Court of Appeals. The appeal is notably signed not just by Assistant Attorney General for the  National Security Division Matthew Olsen, but by Jay Bratt, the chief of the Counterintelligence and Export Control Section. This would certainly seem to give a very good view into the reasons why the DOJ feels it’s vital to move this case forward.

Regardless of the distortions and outright lies involved in Cannon’s ruling, there is no guarantee that the 11th Circuit will overturn her decision. Six of the court’s 11 members were appointed by Trump, and all of them were Federalist Society choices meant to tip the balance of the court. The court could choose to uphold Cannon’s ruling, or to send the case back for more proceedings at the district court level. In any case, the appeal is unlikely to rapidly make the documents available to the DOJ.

The appeal of Cannon’s ruling is likely to be just one of several actions taken over the coming weeks. Either the DOJ or the National Archives could choose to take actions to clarify control of the documents in D.C. court. The intelligence community will continue to work through the implications of what Trump has done. Republicans will continue to pretend this is no big deal.

And if, through some outbreak of reason, the 11th Circuit rapidly strikes down Cannon’s outrageous gift to Trump, there’s no doubt about what will come next: Trump will appeal.

Just when you think it couldn’t get any worse for Americans who have bodies—from denying access to reproductive care for pregnant people and attacking trans folks at every turn—now a Texas judge is deciding which drugs people can get based on the religious views of the company that employs them.

The Dallas Morning News reports Wednesday that U.S. District Judge Reed O’Connor ruled in favor of Braidwood Management Inc. as it challenged the Affordable Care Act (ACA) mandate for coverage of Gilead Science’s Truvada and Descovy, commonly known as pre-exposure prophylaxis (PrEP) drugs. PrEP is prescribed to hundreds of thousands of Americans to prevent HIV/AIDS.

As first reported by Politico in July, a group of Texas residents, employers, and supporters of former President Donald Trump launched the suit, citing a violation of the Religious Freedom Restoration Act. The group argued that obliging businesses to pay for plans that cover STD screenings and HIV prevention drugs will “facilitate and encourage homosexual behavior, prostitution, sexual promiscuity, and intravenous drug use.”

RELATED STORY: Seven Republican men are determined to dismantle all reproductive rights in South Carolina

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“All of these agency-issued preventive-care mandates are unlawful, and several of them—such as the mandates to cover contraception and PrEP drugs—violate the Religious Freedom Restoration Act as well,” the lawsuit reads.

Republican former solicitor general of Texas, Jonathan Mitchell, filed the suit. Mitchell is known for helping to create the abortion law that criminalizes anyone who helps a person get an abortion—including doctors, people who provide funding, and even unwitting parties such as Uber drivers.

O’Connor is an appointee of former President George W. Bush. In 2018, he ruled for the plaintiff in a suit that alleged the ACA was invalid; that decision was overturned.

In this latest case, he argued that the government failed to produce proof that the coverage of HIV medicines “overcame the plaintiffs’ religious objections,” the Dallas Morning News reports.

“The government defendants in the suit outline a generalized policy to combat the spread of HIV, but they provide no evidence connecting that policy to employers such as Braidwood,” O’Conner wrote. “Thus, defendants have not carried their burden to show that the PrEP mandate furthers a compelling governmental interest.”

In July, dozens of medical professionals and groups, including the American Medical Association, responded to the ridiculous lawsuit with a statement and filed an amicus brief in support of the ACA.

“With an adverse ruling, patients would lose access to vital preventive health care services, such as screening for breast cancer, colorectal cancer, cervical cancer, heart disease, obesity, diabetes, preeclampsia, and hearing, as well as well-child visits and access to immunizations critical to maintaining a healthy population,” their statement read, per The Dallas Morning News.

Abortion rights, gun safety, and the our planet are all at stake in this election. We must persuade Democratic voters to turn out in November. Click here to volunteer with Vote Forward and write personalized letters to targeted voters on your own schedule from the comfort of your own home, without ever having to talk to anyone.

At this moment, thanks to a twisted ruling from a Trump-appointed judge, the Department of Justice can’t use the classified documents recovered from Mar-a-Lago in its ongoing criminal investigation. However, intelligence agencies are still working to respond to what was found in an unsecured store room, in a faux-leather cardboard box kept on a shelf in plain view, and in the drawers of Donald Trump’s desk.

The impact on national security is hard to overestimate. Whether or not Trump actually shopped this highly classified information—including  military and nuclear secrets of at least one foreign nation—the intelligence community has to treat all of it, all of it, as compromised. 

However, as CNN reports, when it comes to the national security implications of what Trump has done, Republicans have nothing to say. In fact, most Republicans are unwilling to even face what Trump was keeping handy in his office. They’re willing to pretend that executing a valid search warrant after more than a year of attempting to obtain documents by other means represents some kind of dire threat. But actual dire threats … documents? What documents?

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Here’s a quick review of what Republicans have to say about news that Donald Trump had 103 highly classified documents in his possession, including documents classified as top secret human intelligence, military intelligence, and even nuclear weapon-related intelligence.

Josh Hawley: "I don't know what he has or doesn't have … Some of it depends on if you declassified them or not, the procedures are, what's in the documents. I don't know.”

As a bonus, Hawley replied that former National Security Adviser Sandy Berger took classified material home and “nothing was done to him.” Let’s reach back to 2006 and see what “nothing” looks like. Berger faced a single charge of unauthorized removal and retention of classified material, each with a potential sentence of a year in prison and up to a $100,000 fine.

Ultimately, Berger was fined $50,000, stripped of all access to classified information, and ordered to perform community service while receiving a suspended sentence. So … that kind of nothing.

Meanwhile, Marco Rubio continued to argue, “This is really, at its core, a storage argument that they are making. I don't think a fight over storage of documents is worthy of what they have done, which is a full scale raid." Because, obviously, if Donald Trump had kept top secret information about the military capabilities and nuclear weapons of a foreign power in a better box, this would all be fine.

This really does seem to be a situation in which Senate Minority Leader Mitch McConnell speaks for all Republicans.

Mitch McConnell: “I don’t really have any comments on this whole investigation that’s been dominating the news for the last month.”

Of course, that’s not true when it comes to attacking the FBI and Department of Justice, which have become standard stump speech material for Republicans across the country and the 24/7 purpose of right-wing media. At his Wednesday night rally, Trump provided an update on GOP talking points by saying: "The FBI and the Justice Department have become vicious monsters, controlled by radical left scoundrels lawyers and the media who tell them what to do and when to do it.”

What has Donald Trump’s theft of national security information cost? At a bare minimum, all human intelligence sources involved will be lost. Where possible, those sources may be exfiltrated from hostile nations, but more often they will simply be abandoned. Because from now on the intelligence community will have to assume that anything learned from those sources is compromised and may represent false information. 

Every document that involves some sort of technological means of data collection, whether that’s listening in on military radios or looking down from a surveillance satellite, will need to be reviewed. In some cases, those systems will be lost. In others they’ll be abandoned because, as with human intelligence, if an enemy knows the U.S. is listening in to a certain communication channel, that represents a perfect opportunity to use that channel as a pipeline for false information. Assumptions will also be made that enemies have increased awareness of the U.S. ability to monitor their activities. At the very least, the value of every system involved will be diminished.

The cost of Donald Trump’s theft will be measured in billions. And in lives. And it will take decades for American intelligence to recover. And that’s the best outcome.

If information from these documents really did get spread around, then those costs could seem trivial.

Abortion rights, gun safety, and the our planet are all at stake in this election. We must persuade Democratic voters to turn out in November. Click here to volunteer with Vote Forward and write personalized letters to targeted voters on your own schedule from the comfort of your own home, without ever having to talk to anyone.

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How Republicans could use their House majority to place Trump above the law.

Sen. Ron Johnson, the Wisconsin Republican who just can’t seem to keep his foot and his mouth separate, has managed an incredible feat. He Just put his other foot in in his mouth on the same issue that got him into trouble the last time: marriage equality.

The Senate is going to vote on a bill enshrining marriage equality in federal law in the next few weeks, Majority Leader Chuck Schumer promised Wednesday. "Let me be clear, a vote will happen—a vote on marriage equality will happen on the Senate floor in the coming weeks, and I hope there will be 10 Republicans to support it," Schumer said at a news conference. For whatever reason, right now Schumer is letting Democratic Sens. Tammy Baldwin and Kyrsten Sinema work with Republican Susan Collins try to find those 10 Republicans.

As of just a couple of weeks ago, one of the 10 was possibly going to be Johnson. Back in July, he released a statement suggesting he had no problem with that. “Prior to the Obergefell v. Hodges Supreme Court decision on gay marriage, I supported civil unions,” Johnson said in the statement. “After Obergefell, I considered the issue settled.” Apparently that was a little too much mouth-opening, so Johnson had to walk it back.

All of a sudden he’s decided that he can’t support it because of “religious freedom” gobbledygook these guys always fall back on.

Why is he still here? It’s way past time for Ron Johnson to exit the Senate. Help make that happen, and increase the Democrats’ majority while you’re at it.

And the whole reason he wrote and released a statement saying same-sex marriage was all right by him in the first place? He only did that because reporters kept asking about it. “So you just get hounded on this crap, right?" Johnson said, of fundamental human rights. That’s we he considers “this crap.”

"So just to get them off my backs, I wrote a press release, and I said I always supported civil unions. Never felt that we needed to do anything other than that."

It’s not like abortion, he says. This is absolutely settled law. 

“Now, completely different than Roe v. Wade," Johnson said of Obergefell, the marriage equality decision. “Roe v. Wade needed to be overturned to protect people in the future. Stare decisis is really powerful when, if the Supreme Court were to overrule a previous decision, even if it’s wrongly decided—that’s kind of how this all came up.” Sure. Except what the hell? That is nonsense, any way you cut it. Words that don’t string together in any kind of sense. And boy, was he on a roll with that.

“Because Justice Thomas is probably right that it was wrongly decided,” Johnson added, presumably referring to Obergefell. “But that’s a different issue as to whether or not the Supreme Court would overturn it. They never will. I do not see any scenario.” Except it’s not a different issue. The previous court did a thing to help people that the current court—and particularly Thomas—hates and will summarily overturn. There is no difference between Roe and Obergefell as far as Thomas and who knows how many of the other four or five extremists on the Supreme Court are concerned.

Nonetheless, Collins and Baldwin are working on a compromise, which you know is bad news because it is involving Collins, to address those gobbledygook religious concerns. Like—and this is real—polygamy. They are pretending like they have to explicitly say they are not codifying people marrying multiples of other people simultaneously.

Of course they don’t have to put that in there. That’s Susan Collins concern trolling like she always does, delaying the vote on this like she always does at the behest of Mitch McConnell until all the time has run out and the vote never happens. Remember her and Joe Manchin’s elections reforms? Yeah, that.

They certainly don’t need to be do anything to answer the “concerns” of assholes like Ron Johnson. Again, here’s what he said about his fellow Wisconsin senator, Tammy Baldwin: “We’ve got enough problems. We have enough things to divide this nation. Let’s not drag that back up," Johnson said. "So I’m not happy with the Baldwins of the world who are just opening that wound and opening that debate."

Why Democrats would give him an easy out two months before his tough reelection is a mystery. Schumer needs to schedule the vote. Up or down, no amendments. If Republicans filibuster it, well that will just provide a moment of clarity for voters, and help remind them of what’s at stake in November.

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Judge Reed O’Connor’s latest decision is more nuanced than his previous work, but it is still a disaster for public health.

Judge Reed O’Connor, a former Republican Capitol Hill staffer who now sits on a federal district court in Texas, is one of the most notorious names in US health policy circles. He’s best known for a 2018 decision that attempted to repeal the Affordable Care Act in its entirety — before O’Connor was smacked down 7-2 by the Supreme Court.

So when a new attack on Obamacare arrived in O’Connor’s courtroom, this time on the part of the law requiring health insurers to fully cover certain preventive medical treatments, it appeared inevitable that O’Connor would deal yet another blow to the 2010 law. On Wednesday, that blow came. O’Connor’s order in Braidwood Management v. Becerra, effectively neutralizes part — but not all — of this requirement on insurers.

Yet O’Connor’s Braidwood decision is also more nuanced than his previous work suggested it would be. Though O’Connor makes a significant cut at the law, he does not go nearly as far as the conservative plaintiffs in this case urged him to go, conceding that a binding appeals court precedent prevents him from doing so.

The ACA empowers three different entities to determine which forms of preventive medical care must be covered by insurers at no additional cost to patients. O’Connor ruled that the members of one of those entities are not constitutionally permitted to wield such authority, but his opinion leaves the other two groups’ authority intact.

So, for the time being, some preventive care, like vaccines and free contraceptive care, will remain covered by insurers.

At the same time, O’Connor’s decision is likely to lead to needless health complications and preventable deaths. For one, O’Connor explicitly says that employers with religious objections may offer health plans that do not cover pre-exposure prophylaxis (PrEP), drugs that are very effective in preventing the transmission of HIV.

And if O’Connor’s decision stands, it is likely to force at least some health care consumers to pay out of pocket for cancer screenings that otherwise would have been covered by their insurer, potentially causing patients to delay those screenings until it is too late. (Though it should be noted that O’Connor has not yet issued an injunction against the law, so Obamacare remains in full effect, for the moment.)

Moreover, it is likely that higher courts will make more expansive attacks on the Affordable Care Act as this case is appealed. O’Connor may have stayed his hand somewhat because he was bound by an appeals court’s precedent. But neither the conservative US Court of Appeals for the Fifth Circuit nor the Supreme Court — where Republican appointees have a 6-3 supermajority — are necessarily going to heed that precedent.

And the plaintiffs raise just the kind of argument that could entice the Supreme Court to upend the preventive care requirements altogether.

So what, exactly, is at stake in Braidwood?

When Congress enacted the Affordable Care Act, it delegated the power to determine which preventive treatments should be covered by insurers to three federal entities with specialized experience on vaccines and preventive medicine.

The US Preventive Services Task Force (PSTF) has fairly broad authority over preventive care for all patients. The Advisory Committee on Immunization Practices (ACIP) determines which vaccinations should be covered. And the Health Resources and Services Administration (HRSA) issues “comprehensive guidelines” governing women’s health and preventive care for infants, children, and adolescents.

This delegation of authority allowed these entities to make sure that, as new health challenges emerge and new treatments are developed, those treatments would remain broadly available to patients. If Congress had simply itemized a list of vaccines that insurers must cover when it enacted Obamacare in 2010, for example, that list could not have included the Covid-19 vaccine — because Covid-19 did not exist in 2010.

The three federal entities have placed about 80 items on the list of preventive services that health insurers must cover. These items include things like blood screening for newborns, vision screening for children, birth control, Pap smears, and screening for conditions like depression, hepatitis, HIV, and some forms of cancer.

The Braidwood plaintiffs took issue with that. Those plaintiffs are a hodgepodge of individuals and business owners (along with some businesses owned by individual plaintiffs) who object to buying insurance that covers at least some of these treatments, either on religious or economic grounds.

Their most potent legal argument is that delegating this power to federal agencies violates something known as the “nondelegation doctrine,” a judicially created doctrine that the Supreme Court briefly flirted with in the 1930s, and then abandoned for nearly a century.

This ill-defined doctrine places vague limits on Congress’s power to delegate policymaking authority to federal agencies. In a 2019 dissenting opinion that a majority of the Court has since signaled that they find persuasive, Justice Neil Gorsuch claimed that the Court should strike down any congressional delegation of regulatory power that does not set “forth standards ‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed.”

In any event, the nondelegation doctrine is not currently the law — Gorsuch’s dissenting opinion is, for now, just a dissent. And O’Connor’s decision in Braidwood concedes that existing law does not permit him to strike down Obamacare’s entire preventive care regime as a violation of the nondelegation doctrine.

But there is enormous risk that this Supreme Court will change existing law and doom the regime in fairly short order. Two years ago, in Little Sisters v. Pennsylvania (2020), all of the Court’s Republican appointees joined an opinion by Justice Clarence Thomas, which strongly implied that HRSA’s decision to require health insurers to cover birth control violates nondelegation — although Thomas ultimately declined to strike down the birth control rule because “no party has pressed a constitutional challenge to the breadth of the delegation involved here.”

The Court, moreover, has only grown more conservative since Little Sisters was decided, because liberal Justice Ruth Bader Ginsburg died and was replaced by Trump appointee Justice Amy Coney Barrett. And Braidwood presents the very constitutional question that Thomas avoided in Little Sisters.

So when this case reaches the Supreme Court, Obamacare’s entire preventive health regime is probably in deep trouble.

O’Connor’s opinion rests on an arcane constitutional distinction

Although O’Connor turns aside the Braidwood plaintiffs’ nondelegation argument, he accepts a separate attack on the PSTF (the organization, remember, that has fairly broad authority over preventive care for all patients) while leaving intact the other two entities’ authority. This attack rests on a constitutional distinction that is so arcane it reads like a parody of a legal argument. And yet, at least under existing Supreme Court precedent, this portion of O’Connor’s opinion makes a plausible argument.

Certain federal employees are deemed “officers of the United States,” and the Constitution places fairly strict limits on who can appoint such an officer. The highest-ranking officers of the United States — Cabinet secretaries and the like — must be nominated by the president and confirmed by the Senate. Meanwhile, lower ranking officers of the United States, which the Constitution labels “inferior officers,” may be appointed by the president acting alone, by a court, or by “the heads of departments.”

In any event, the government does not claim that PSTF members were properly appointed as officers of the United States (members of this task force are selected by the director of the federal Agency for Healthcare Research and Quality). Rather, it claims that they are not officers at all. Indeed, the government argues in its brief that “the PSTF is not a federal agency,” merely a “volunteer body” of medical experts that the government relies on in making certain health policy judgments.

Under Lucia v. SEC (2018), even someone who exercises “significant authority pursuant to the laws of the United States” qualifies as an officer only if they perform “continuing and permanent” duties rather than “occasional or temporary” ones. And so, the government argues, the part-time, entirely volunteer PSTF cannot be made up of officers. In its view, “any role staffed by part-time volunteers is, by definition, not a ‘continuing and formalized relationship of employment with the United States Government.’”

To this, O’Connor responds that PSTF members serve four-year terms and do have to complete some official duties during those terms, such as submitting “yearly reports to Congress and other agencies identifying gaps in research and recommending areas for further examination.” He also notes that they “‘devote approximately 200 hours a year outside of in-person meetings’ to carrying out their duties,” and deems these duties to qualify as “continuing and permanent” and not “occasional or temporary.”

Therefore, O’Connor opines that PSTF members must be properly appointed as “officers” before they can effectively set policy for health insurers.

The honest answer to this dilemma is that the Supreme Court hasn’t really provided much detail on how much work someone needs to do for the government — or whether that work has to be paid, for that matter — before their labor crosses the line from “occasional or temporary” to “continuing and permanent.” Are 200 hours a year enough? The case law doesn’t say. And so O’Connor, being a conservative Republican, can resolve this ambiguity by choosing the outcome more favorable to conservative Republicans.

That’s terrible news for people who need cancer screenings. But it’s not a wholly implausible legal argument. O’Connor’s opinion resolves a genuine legal ambiguity in favor of less health coverage.

A quick note about PrEP

One other aspect of O’Connor’s opinion is worth noting. In a brief section at the end of his opinion, O’Connor sides with an anti-LGBTQ employer who objects to the fact that the federal government currently requires health insurers to cover pre-exposure prophylaxis (PrEP) HIV prevention medication.

These are drugs which people who are HIV-negative can take to dramatically reduce their risk of contracting the virus. One of the Braidwood plaintiffs objects to PrEP because he claims that it “facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman,” and he claims that his religion prevents him from offering insurance to his employees that includes coverage of PrEP.

About a decade ago, this legal argument would have gone nowhere. But then the Supreme Court held in Burwell v. Hobby Lobby (2014) that employers with religious objections to birth control may refuse to cover contraception in their employee health plans. Given Hobby Lobby, and given the current Supreme Court’s extraordinary sympathy for religious conservatives, it’s hard to imagine that this anti-PrEP plaintiff would not prevail before the justices.

The bottom line is that, despite O’Connor’s well-earned reputation as a judicial partisan with a vendetta against Obamacare, his opinion in Braidwood is not especially outlandish — at least if you accept the legitimacy of decisions like Hobby Lobby. O’Connor even takes the uncharacteristic step of rejecting the plaintiffs’ nondelegation arguments simply because they are precluded by binding precedents that he is legally obligated to follow.

But it is likely that, as this case proceeds, it will get worse for Obamacare — and for the health of the American people.

Following up on earlier reports that among the documents that Donald Trump stole from the White House and carried off to Mar-a-Lago were some related to nuclear weapons, The Washington Post reported on Tuesday evening that Trump’s haul included details about the military of an unidentified foreign nation, including information on its nuclear capabilities.

It was already known that among the documents recovered from Trump’s Florida country club were 103 classified documents, some of which were classified beyond “TOP SECRET.” However, this new information makes it clear that Trump walked away with the United States’ most valuable, most dangerous secrets, and refused to give them back.

Donald Trump illegally took some of the government’s secret documents. He refused to return them to the National Archives upon request. After a year, he handed over a portion of what he had taken but refused to give back the rest. After the Department of Justice and FBI became involved, Trump handed over another small set of documents, and his attorney signed a statement saying that there were no more classified documents at Mar-a-Lago. But Trump did have more classified documents. The most-highly classified documents. He had many of them right in his office, where there was no security.

The United States has to assume that everything Trump held—human intelligence, satellite intelligence, and reports on the nuclear capabilities of some undisclosed nation—were all compromised. The cost to the nation, and the threat to the world, represented by this collapse in security is tremendous.

Now … what happens to Trump?

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Thanks to a judge he put in place for just such occasions, Trump is at the moment protected by Aileen Cannon’s “special master” ruling. The intelligence community can go ahead with the sorry business of exfiltrating sources, closing down networks, and trying to gauge the extent of damage caused by Trump’s actions, but the DOJ is enjoined from using any of the documents they’ve recovered “for investigative purposes.” Whatever that means.

That doesn’t mean the case against Trump is on hold. If the DOJ intends to pursue an indictment of Trump and others over these matters, it can go ahead with witness interviews, subpoena materials held by other individuals, and use the documents recovered in January and June as a basis.

If the Justice Department doesn’t intend to seek an indictment of Trump, then it’s making a blunt statement that some people are above not just some laws, but all laws. But there’s no reason at this point to think that there will not be a grand jury indictment handed down against Donald John Trump.

However, that doesn’t address the issue of what the DOJ should do, right now, in response to Judge Cannon’s gift to Trump and the knowledge that Trump stole, and may well have shown to others for personal gain, some of the most nation’s important secrets.

One obvious move is to appeal the decision made by Cannon. Even former Trump Attorney General Bill Barr has stated his feeling that the DOJ has to appeal this ruling or risk some of Cannon’s bad interpretations of the limits of privilege standing unchallenged.

That appeal would go to the 11th Circuit Court of Appeals, where Cannon’s clearly stated refusal to follow law, precedent, facts, or procedure should net a fast reversal. Except, as Bloomberg reported back in 2020, the then Republican-led Senate helped Trump pack the 11th Circuit with a string of conservative hardliners who were opposed by Democrats, voting rights groups, and many others. Most of these judges reached the court with exactly 52 votes, along strict party lines.

Of the court’s 11 members, only four were appointed by Democratic presidents. Over half of all its members were appointed by Trump. There’s a fair chance that whether the matter goes to a traditional three-judge panel or, more unusually, all 11 judges sitting en banc, the Trump-appointed justices could uphold part or all of Cannon’s ruling. Even if they don’t—none of them are are quite as unqualified for their roles as Cannon, so there’s a chance they might have some respect for plain old reason—going through the appeal process will net Trump what he really wants anyway: a delay.

In over 3,000 lawsuits, Donald Trump has demonstrated that anyone with enough money can keep the courts tied up over the most simple decisions for months or years. When he was in the White House, Trump routinely showed disdain for Congress by punting every single request into the courts to fester, age, and circulate endlessly. As the ACLU said in 2019:

His first response was to stonewall on all subpoenas. He argued that House committees have no authority to investigate except where their investigation is tied to a specific piece of legislation. But that argument is dead wrong, and the federal courts have properly and resoundingly rejected it.

But being “dead wrong” doesn’t do a thing to stop Trump from using the courts to throw everything into slow motion. When even a “rush decision” from a court can involve months of delay … why not?

Cannon’s decision could be sent down from the 11th, go back up, get appealed at a higher level, and work its way all the way to the Supreme Court … some time in 2027. Assuming that court doesn’t give Trump a very friendly response and start the whole process over again, this would be a good time for Trump to toss a new stack of papers on Cannon’s desk so she could invent some new reason no one can peek at what he stole.

The House Ways and Means Committee subpoenaed Trump’s tax records in May 2019. The law giving them the right to do exactly this could not more straightforward or more certain. Trump sued to stop the subpoena. The federal district court in D.C. ruled that he had to turn over the documents. Trump appealed to the D.C. Circuit Court of Appeals. It also ruled he had to turn over the documents. Trump appealed to the Supreme Court. The Supreme Court … sent it back to the lower courts to “further assess the congressional subpoena.” The appeals court yet again upheld the congressional subpeona but gave Trump an opportunity to appeal once more. Which he did. That was last month.

No matter how obvious it may seem and no matter how serious the matter may be, an appeals process to knock down Cannon’s ruling could be just as frustrating, and just as endless. The Justice Department is no doubt sweating over whether an appeal will actually slow things down. Which it easily could, no matter how badly they must want, and need, to appeal.

But whether the DOJ appeals or clenches its teeth and proceeds with the selection of a special master under the assumption that at some point Cannon will be satisfied enough to stop sticking a wrench into the judicial process, there are other things that could be done.

Over at emptywheel, Marcy Wheeler has one suggestion: The National Archives and Records Administration (NARA) has at least four pre-existing claims over those same documents, claims that it is obligated to meet no matter what Judge Cannon might say. These include subpoenas from the Jan. 6 special committee; subpoenas connected to the DOJ investigation of events on Jan. 6; requests for documents in the case of Trump fundraiser (and accused illegal foreign agent) Tom Barrack; and a subpoena from former FBI agent Peter Strzok in a lawsuit related to his firing after Trump repeatedly dragged him through the mud.

For all of them, NARA has a legal obligation that precedes Judge Cannon’s order. So if any of the material owned by NARA that Cannon has enjoined for Trump’s benefit is covered by these subpoenas and the Barrack discovery request, it will give NARA an additional need to intervene, on top of the fact that Cannon has made decisions about property owned by NARA.

Cannon has ordered the DOJ to put down those documents, except for reviewing the potential damage (spoiler: it’s huge). But NARA may not feel, since it’s not a part of the criminal case against Trump, that it’s affected by this ruling. Its pre-existing obligations should only be constrained by its interpretation of whether or not these documents are protected by executive privilege, and it’s already made the call on that one. So some of these documents could go from the NARA to the Jan. 6 committee or to courts involved in other cases … assuming there’s someone there with the clearance to receive them.

None of that solves the real problem, which is not just evaluating the damage that Trump has caused, or weighing the questions of privilege. It’s how Trump should pay for the intentional theft of the most sensitive documents—and for the impact that theft has already had on the nation’s security.

Trump and his followers proved on Jan. 6 how dangerously close they came to overturning our democracy. Help cancel Republican voter suppression with the power of your pen by clicking here and signing up to volunteer with Vote Forward, writing personalized letters to targeted voters urging them to exercise their right to vote this year.

It's interesting to read the youthful musings of someone like Blake Masters, but the threat he poses today is right in front of us.

Imagine living in a state where lawmakers are proposing to force pregnant people to bear the infants of their rapists. That’s the current hope of Republican lawmakers in South Carolina, who are currently debating a total ban on abortion care that does precisely that. It’s not enough to control their constituents’ bodies; now they’re attempting to control the outcomes of their lives as survivors of horrific and criminal assault.

Tuesday, the Senate Medical Affairs Committee voted 9-8 in favor of a near-total abortion ban. The Republican men on the committee voted 7-3 to remove all exceptions—even in cases of rape or incest. The Democrats refused to vote on the extreme amendment in the hopes of killing it. The bill will be debated by the 30 Republicans and 16 Democrats in the state Senate and voted on Wednesday.

State Democratic Sen. Marlon Kimpson said, “This is a bad bill,” when explaining why he withheld his vote. “You can’t put lipstick on a pig. It’s still a pig. Exceptions do not make abortion restrictions less harmful. We, as lawmakers, should not be in a position to decide who gets an abortion and who does not get an abortion.”

RELATED STORY: California-based OB-GYN plans to take abortion care off the land and out to sea in the Gulf

Politico reports that the extreme amendment to the bill was added last week. Since it is different than the bill approved by the House, it returns for a final vote.

Just before the vote was tallied Tuesday, Senate minority leader Brad Hutto said:

“You’re asking us to adopt these policies in an attempt to make a really, really bad bill a little bit better. [...] And we’re just not gonna participate in that, and I hope you respect that. And maybe you don’t understand. But those of us who abstained from voting on your amendments was not because your amendments are not worthy of our consideration. And as standalone bills next year, I can tell you I would support every single one of them. [...] But this is an awful bill. I just can’t say that enough. What we’ve witnessed here is the Republican majority’s attempt to impose an extreme total ban on abortion on women in South Carolina.”

ABC News reports that state Republican Sen. Richard Cash has had a total abortion ban in his sights for the entire five years he’s been in office.

“If you are over the age of 13, we kind of expect you to have sex. We’re going to provide you with all the contraceptives you are going to need," Cash said, responding to Davis’ proposed plan to make contraceptives available to minors with the consent of their parents or guardians. “It borders on encouraging immorality.”

Last week, the same bill appeared to falter in the House. After a few Republican machinations and several votes, the bill moved forward with the exceptions for rape and incest victims up to the 12th week of pregnancy, per ABC News.

South Carolina recently adopted a six-week “fetal heartbeat” law. This ban is currently on hold while the state’s Supreme Court debates whether or not it violates the constitutional right to privacy.

South Carolina’s HB 5399 law currently operates under the 20-week abortion ban with only limited exceptions to prevent the death of a pregnant person because of a physical condition or “the substantial physical impairment of a major bodily function of the pregnant woman.” Risks to the pregnant person include molar pregnancy, ectopic pregnancy, severe preeclampsia, and miscarriage.

The committee’s new proposal includes a requirement that the father of the fetus must pay child support beginning on the date of conception and half of all expenses related to the pregnancy. Additionally, the rapist must pay the full cost of mental health services following the attack, Yahoo News reports.

TALLAHASSEE, Fla. — The federal judge at the center of the dispute over documents taken from former President Donald Trump’s estate is a member of a prominent conservative legal society who has had brushes with other politically-sensitive cases during her short time on the bench.

U.S. District Court Judge Aileen Cannon, who was appointed by Trump in 2020 and confirmed just days after the presidential election, had faced criticism Monday for siding with the former president and his legal team in their request for a special master to review material taken from Mar-A-Lago during the FBI’s search in early August.

The Justice Department is expected to appeal her ruling.

Some legal experts had publicly chided Cannon for her ruling, claiming that she was overly-deferential to Trump’s legal team and was generally untested. Trump’s former attorney general Bill Barr, for example, told Fox News that the ruling “was wrong” and “deeply flawed in a number of ways.”

“She is obviously very bright. Obviously very conservative. And obviously very inexperienced,” said an experienced South Florida attorney who was granted anonymity because he could have cases before Cannon in the future.

Cannon did not respond to a request for comment.

The court had randomly-assigned the Mar-a-Lago case to the 41-year-old Cannon. But in April, Trump had sought to get an unrelated racketeering lawsuit against Hillary Clinton before the Southern District of Florida, where Cannon is a judge. That case went to Clinton-appointee U.S. District Judge Donald Middlebrooks instead, and Trump asked him to recuse himself from the case.

Middlebrooks took notice of Trump’s attempt to get a judge seen as friendly in that case and specifically mentioned Cannon in court documents.

“I note that Plaintiff filed this lawsuit in the Fort Pierce division of this District, where only one federal judge sits: Judge Aileen Cannon, who Plaintiff appointed in 2020,” Middlebrooks wrote. “Despite the odds, this case landed with me instead.”

“And when Plaintiff is in litigation before a judge that he himself appointed, he does not tend to advance these same sorts of bias concerns,” he added.

While the Mar-a-Lago case is by far the most high profile case before Cannon, she also oversaw a criminal case involving Paul Hoeffer, a 60-year-old Palm Beach Gardens man who threatened to behead Speaker Nancy Pelosi and Rep. Alexandria Ocasio-Cortez (D-N.Y.), a progressive who is a regular target for conservative criticism.

Federal prosecutors sought a three-and-half-year sentence for Hoeffer but Cannon gave him 18-months in federal prison.

Cannon’s background fits the profile of many Trump judicial appointees: She is young, which means she will serve on the federal bench potentially for decades, and is a member of the Federalist Society, a conservative legal organization that has huge sway over Republican-appointed judges.

Born in Colombia, Cannon attended Duke University and graduated from the University of Michigan law school. She worked from 2009-2012 in the Washington office of law firm Gibson, Dunn & Crutcher LLP and then as an assistant U.S. attorney in the Southern District of Florida.

She was approached about a position on the federal judiciary in June 2019, when Sen. Marco Rubio’s office sent an email indicating that the Florida Republican wanted to consider her for a vacancy in the district.

Her application was submitted that month to Rubio’s Judicial Advisory Committee for the Southern District of Florida. She later interviewed with that committee and GOP Florida Sen. Rick Scott’s general counsel before traveling to Washington to interview with the White House and Justice Department legal officials.

The Senate confirmed her on Nov. 11, 2020 by a 56-21 vote. A dozen Democrats supported her nomination.

Cannon’s only political contribution was $100 to Florida Republican Gov. Ron DeSantis’ first campaign in 2018, according to campaign finance records.

South Carolina Republicans on Tuesday advanced a proposed abortion ban after voting to remove exceptions for incest and rape.

The bill’s passage in its current form is not guaranteed. It will still need to be voted on by the full state Senate on Wednesday, though legislative observers say it is unlikely to pass without the exemptions. The more conservative House adopted a last-minute amendment last week to include such exceptions, and if the Senate’s version of the bill is different from what the House passed, it must return to the lower chamber for final approval.

The Senate Medical Affairs Committee sent the near-total abortion ban to the Senate floor in a 9-8 vote on Tuesday, with an exception if the life of the mother is at risk. A group of Republicans voted to remove exceptions for incest and rape earlier Tuesday, while Democrats on the committee declined to vote on the amendment to remove the exemptions — in what appeared to be a strategic effort to impede the bill’s chances of passing. The exceptions for rape and incest were removed in a 7-3 vote by all Republican men.

Amendments to add fetal anomaly exceptions to the bill and to expand sex education in schools were both tabled.

The Senate minority leader, Brad Hutto, took a few minutes before the final tally to explain the Democrats’ decision to abstain from amendment votes.

“You’re asking us to adopt these policies in an attempt to make a really, really bad bill a little bit better,” Hutto said. “And we’re just not gonna participate in that, and I hope you respect that. And maybe you don’t understand. But those of us who abstained from voting on your amendments was not because your amendments are not worthy of our consideration. And as standalone bills next year, I can tell you I would support every single one of them.”

“But this is an awful bill. I just can’t say that enough,” he continued. “What we’ve witnessed here is the Republican majority’s attempt to impose an extreme total ban on abortion on women in South Carolina.”

South Carolina Republicans have slowly chipped away at reproductive rights in the state, but the U.S. Supreme Court’s move to overturn Roe v. Wade in June cleared the way for the Legislature to ban the procedure entirely. But in a midterm year, as voters — as seen in the defeat of a Kansas ballot amendment — offer more clues about how the general electorate feels about restrictions on the procedure, Republicans are looking to find the safest political path in the run-up to November.

Republicans’ moves to ban abortion this summer have had mixed results. While Indiana passed a ban last month that’s set to go into effect later this month, West Virginia’s Legislature failed to reach a consensus on further restrictions during a special session in July.

This political tap dance has already played out in the more conservative South Carolina House, which pushed forward the near-total abortion ban with the added exemptions for rape and incest. A previous version of the House bill, without exceptions for rape and incest, appeared to fail. Tuesday’s move by Senate Democrats to abstain from voting appeared to mimic House Democrats’ strategy to make the bill undesirable to some Republicans who may be unwilling to vote for a ban without such exceptions.

Multiple Republican South Carolina senators have also said they won’t support a bill without these exceptions, The Associated Press reported. The Senate's makeup is 30 Republicans and 16 Democrats.

Even if the exemptions were to be added back in, patients attempting to use such exceptions to receive care face a multitude of legal hurdles and may have an easier time traveling across state lines for an abortion.

The Associated Press and Megan Messerly contributed to this report. 

Trump Judge Aileen Cannon’s order is egregiously wrong and could be overturned on appeal. But it helps Trump run out the clock.

Judge Aileen Cannon’s order suspending one of the Justice Department’s criminal investigations into former President Donald Trump, at least until a court-appointed official can review documents the FBI seized from Trump, is a trainwreck of judicial reasoning. Cannon mangles the law so completely that it’s hard to know where to even begin in criticizing her opinion in Trump v. United States.

For starters, Cannon, who was appointed to the federal bench by Trump days after he lost the 2020 election, argues fairly explicitly that Trump is entitled to special rules that apply to virtually no other criminal defendant, because he used to be a powerful person.

Seriously, Cannon argued that the rules don’t apply to Trump in large part because, as a former president, he faces “reputational harm” that is of a “decidedly different order of magnitude” than that facing another person who may be indicted.

This opinion is an affront to anyone who believes that all Americans, whether a pauper or a former president, are subject to the same laws.

On a practical level, it could also allow Cannon or other judges to delay this criminal investigation into Trump indefinitely. Cannon’s opinion is not simply wrong, it plays with legal concepts, such as executive privilege, which she seems to barely understand. And it races to grant relief to Trump that could impose countless hurdles between the Justice Department and its ability to investigate Trump.

Indeed, just the portions of Cannon’s opinion dealing with executive privilege, which make up only a small part of the decision, are complicated and uncertain enough that they could potentially force months or even years of litigation to resolve. And, Cannon ordered the United States to halt its criminal investigation into the documents seized from Trump — something she decidedly does not have the power to do — until after the process she set up to review those documents is complete.

In the worst-case scenario for the Justice Department, in other words, Cannon may have claimed the power to delay investigation and possible prosecution of Trump for months or years. And it’s far from clear that higher courts dominated by Republican appointees will stop her, even though the DOJ took the first step to appeal Cannon’s decision on Thursday.

How we got here

About a month ago, FBI agents searched Mar-a-Lago, Trump’s Florida residence, and removed several boxes of documents. Many of these documents were clearly marked as classified, some of them at high levels of classification. The Justice Department says it took these documents as part of a criminal investigation into potential violations of several statutes prohibiting authorized retention of national security documents, including the Espionage Act.

As part of its search, the Justice Department also says it took some non-classified “documents that were collectively stored or found together with documents with classification markings.” These documents were initially reviewed by a “privilege review” team, whose purpose was to identify any documents that might be protected by attorney-client privilege and screen them out so that they are not seen by criminal investigators. Additionally, if Trump is eventually indicted, and he believes that the Justice Department used any of these seized documents improperly, he could raise that point at his criminal trial and seek to have that evidence dismissed.

In virtually all criminal investigations, these procedural safeguards are considered sufficient to protect that defendant’s rights. But two weeks after the documents were seized, Trump’s team decided they weren’t enough. His legal team asked Cannon to add another level of review: appointing an official known as a “special master,” who will conduct their own review of the seized documents.

As Cannon notes, there is some precedent indicating that, in cases involving particularly egregious actions by criminal investigators, courts should impose additional safeguards. Specifically, Cannon relies on a nearly half-century old appeals court decision in Richey v. Smith (1975), which held that such extraordinary safeguards may be justified if certain factors are present. “Perhaps foremost” among these factors, the court said in Richey, is whether the government displayed “a callous disregard for the constitutional rights” of the person being investigated.

And yet, Cannon admits in her opinion that “there has not been a compelling showing of callous disregard for Plaintiff’s constitutional rights.” The fact that she nonetheless granted Trump’s request is one of the many red flags in her opinion. As noted above, Cannon believed that extraordinary relief is justified in large part because, as a former president, Trump would somehow face greater “stigma” if he is indicted than any other private citizen.

(To be clear, the Constitution does provide all citizens with a safeguard against the “stigma” of an arrest — police generally must have “probable cause” to arrest someone or to search their home. The Constitution does not say that former presidents enjoy heightened protections against searches or seizures.)

And so Cannon gave Donald Trump, the man who gave her a job as a federal judge, two forms of relief. She agreed to appoint a special master, and she prohibited the Justice Department “from further review and use of any of the materials seized from Plaintiff’s residence ... for criminal investigative purposes” until the special master’s review is complete.

It’s not yet clear what this special master’s full duties will be, but Cannon strongly implies that the special master will screen the documents both for items that might be protected by attorney-client privilege and for items that might be protected by “executive privilege.”

The legal justification for this search for documents protected by executive privilege is highly dubious, and such a search could lead to considerable delay — delay that could be hugely consequential because Cannon has effectively forbidden the DOJ from using the evidence it has against Trump until the special master process plays out.

Cannon appears to have no clue what executive privilege is or how it works

The concept of “executive privilege” arises from a president’s need to receive candid advice from aides, who may be reluctant to give unpopular advice if they know that advice could become public in the future. As the Supreme Court said in 1974 in United States v. Nixon (Nixon), one of its foundational executive privilege cases, “human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.”

A subsequent 1977 decision, Nixon v. Administrator of General Services (GSA), held that this privilege “survives the individual President’s tenure,” but a former president’s ability to keep information secret is much weaker than a sitting president’s, and it is especially weak when the sitting president determines that a former president’s communications should not remain secret.

Although President Joe Biden has not specifically weighed in on how executive privilege should apply to the Mar-a-Lago investigation, he previously determined that “an assertion of executive privilege is not in the national interest” with respect to Trump White House documents sought by the congressional investigation of the January 6, 2021, attack on the US Capitol. He is highly unlikely to side with Trump’s efforts to thwart a criminal investigation.

Moreover, even if Trump were able to override Biden’s judgment here, there are several other reasons why executive privilege should not apply to the FBI’s investigation into Trump’s possession of classified documents. For one thing, Nixon held that a criminal prosecution is the quintessential case where executive privilege may be breached. “The allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial,” Nixon explained, “would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.”

So, if Trump is eventually indicted, executive privilege should not bar the Justice Department from using the seized documents as evidence against him.

An even more basic reason why executive privilege should not apply to this investigation is that Trump is trying to assert executive privilege against, well, the executive. Nixon held that the concept of executive privilege is “rooted in the separation of powers under the Constitution” — that is, the separation of powers among the executive, legislative, and judicial branches.

So, if Congress or a court seeks a presidential document, that might raise executive privilege concerns. But the FBI, and the Justice Department more broadly, are part of the executive branch. And there are no separation of powers concerns raised by one part of the executive branch obtaining documents that allegedly belong to another part of the executive branch.

And then there’s the difficult task of determining which, if any, of the Mar-a-Lago documents are even arguably protected by executive privilege — a question that could potentially require months or even years of litigation to resolve.

The question of which documents are protected by executive privilege is not straightforward

Although the concept of executive privilege stretches back to the Washington administration, disputes involving this privilege are rarely litigated. As the Supreme Court said in Trump v. Mazars (2020), Congress and the White House have historically maintained a “tradition of negotiation and compromise” when the former seeks the latter’s documents.

For this reason, the Supreme Court has never fully articulated what sort of documents are and are not protected by executive privilege.

That said, the US Court of Appeals for the District of Columbia Circuit’s 1997 decision in In re: Sealed Case is probably the most robust attempt by a federal court to define the scope of this privilege. Sealed Case held that the “executive privilege” has two different forms.

The stronger form, known as the “presidential communications privilege,” applies to communications directly with the president, or communications “authored or solicited and received by those members of an immediate White House adviser’s staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate.”

Meanwhile, a weaker privilege, known as the “deliberative process privilege,” permits “the government to withhold documents and other materials that would reveal ‘advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’” But this privilege is extraordinarily weak. Indeed, it “disappears altogether when there is any reason to believe government misconduct occurred.”

Special masters are sometimes used by federal courts — albeit not very often — to screen out attorney-client privileged documents. And a special master is well suited to such a task because it is relatively easy to determine which documents might be protected by this privilege. Was the document a communication between an attorney and their client? Mark it as presumptively privileged.

But a special master is poorly suited to determine which documents might be protected by executive privilege. For starters, the DC Circuit’s decision in Sealed Case does not bind Judge Cannon, so it is unclear whether the special master should follow it or some other definition of the term “executive privilege.”

And even if we assume that the DC Circuit’s definition applies, how is a special master to determine that a particular document fits within this definition? Sealed Case held, for example, that the presidential communications privilege is “limited to communications ‘in performance of [a President’s] responsibilities,’ ‘of his office,’ and made ‘in the process of shaping policies and making decisions.’”

Now suppose that one of the documents seized by the FBI turns out to be a memo laying out how the price of gasoline in Michigan fluctuated between 2016 and 2019. Absent more evidence, how is a special master supposed to know if this document was delivered to Trump because he considered proposing some kind of price control on gasoline (and thus the document is privileged), or if Trump wanted to know the price of gas because he wanted to mention it in a campaign speech (and thus the document is not privileged because it was not produced “in the process of shaping policies and making decisions.”)

And even assuming that a special master could answer these factual questions, there are still a whole raft of legal questions that will arise. Suppose, for example, that President Biden formally declares, pursuant to his authority under GSA, that none of the documents seized at Mar-a-Lago should be subject to executive privilege. The significance of that declaration would need to be litigated, and it could need to be litigated for every single document that the special master flags as potentially subject to executive privilege.

And, again, for the entire period that these issues are being litigated, Cannon’s order suspending the criminal investigation into Trump could remain in effect — unless, of course, an appeals court steps in to block her.

DOJ has appealed Cannon’s order, but it’s not clear that will help much

Because Cannon’s opinion is so riddled with legal errors — my analysis of the opinion only scratches the surface of the many problems with this decision — a higher court could potentially permit DOJ to resume the investigation on appeal.

But the DOJ’s first line of appeal is the 11th Circuit, a GOP-dominated court where six of the 11 active judges were appointed by Donald Trump. In the fairly likely event that the DOJ draws a panel of Trump appointees (or other similarly ideological judges) to hear its appeal, that panel could sit on the case for months before issuing a decision that mirrors Cannon’s.

And what then, appeal to the Supreme Court, where Republican appointees enjoy a 6-3 supermajority?

In fairness, since Trump left office, the justices haven’t tripped over themselves to protect the former president. Last January, after Trump asked the Supreme Court to prevent the congressional committee investigating the January 6 attack from obtaining hundreds of pages of records from the Trump White House, the Court denied Trump’s request.

But even if this Court ultimately rules in the DOJ’s favor, such a ruling may not be handed down for years. And a significant delay could potentially allow Cannon’s order to remain in effect until well into the next presidential election cycle — or even later.

In the Mazars case, for example, the Court changed the rules governing congressional investigations of a sitting president, after House investigators sought some of Trump’s financial records. This decision ensured that these investigators would not see those records — if they ever do see them — until long after the 2020 election had already passed.

Similarly, last June the Supreme Court handed down a decision in Biden v. Texas, holding that a Trump judge in Texas egregiously misread federal immigration law when he ordered the Biden administration to reinstate a Trump-era border policy. But even though the Court eventually rejected this Trump judge’s order, it left that order in place for 10 months, effectively allowing the dead hand of the Trump administration to set border policy long after Trump was voted out of office.

Then, in July, the Supreme Court used a similar process to allow a different Trump judge to effectively override the Secretary of Homeland Security’s command and control of Immigration and Customs Enforcement (ICE). While it remains likely that the Supreme Court will eventually restore the Secretary’s lawful authority over ICE’s enforcement priorities, that decision may not come until next June.

The Supreme Court, in other words, has shown extraordinary willingness to use the judicial calendar to benefit the Republican Party. When Trump was in office, the Court often moved so quickly when Trump’s lawyers asked it to block a lower court order that Justice Sonia Sotomayor accused her colleagues of “putting a thumb on the scale in favor of” the Trump administration. But the Court shows no inclination to move quickly when a lower court judge errs in a way that benefits Republicans.

And so, Judge Cannon could effectively prevent Trump from being investigated for possibly stealing national security documents for months or even years. If the DOJ appeals her decision, the case may linger in appeals courts for a long time without resolution. But if it does not appeal, the DOJ will give up its shot to end this highly partisan judge’s supervision of one of the most sensitive criminal investigations in US history.

Update, September 8, 4 pm: This story has been updated with the news that the Justice Department appealed Judge Cannon’s decision.

NBC News has a long read about the successful efforts of a far-far-right "Christian" cellphone provider (and yes that is a thing) to take over Texas school boards and rewrite what teachers are and aren't allowed to do in classrooms. There's a lot to go through, but it's an effective look at the American fascist movement and their efforts to, mainly, hurt anyone who isn't them.

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"Patriot Mobile" is a minor-tier wireless provider that promises a political bent: You pays them your moneys, and they use part of your moneys to screw over your neighbors—sorry, to promote "conservative" and "Christian" values, the first a hell of a lot more than the second, and it got its big break because Steve Bannon, an outright fascist, has been hyping them to his audience of greasy militia freaks as the sort of thing fascists need to be doing more of.

At this point you might be thinking that I'm throwing around the fascist label pretty freely, but read the piece. It's instructive. The company is "Christian" only in the way that most far-right "Christian" groups are, meaning they don't care if you're a child-raping serial liar so long as you let good Christians rub assault rifles against their naughty parts:

"Initially, Patriot Mobile’s founders said their goal was to support groups and politicians who promised to oppose abortion, defend religious freedom, protect gun rights and support the military."

And then Trump came along and they loved the hell outta that grifting con artist, which led to the "Christian" phone company advertising their services using. NBC includes the picture, a picture of Donald Trump in a Rambo get-up "holding a machine gun." It's that kind of Christian. It's also this kind of "Christian":

"This spring, the PAC blanketed the communities of Southlake, Keller, Grapevine and Mansfield with thousands of political mailers warning that sitting school board members were endangering students with critical race theory and other 'woke' ideologies. Patriot Mobile presented its candidates as patriots who would 'keep political agendas out of the classroom.'"

And that's how they took over four Texas school boards: By lying, outright, with claims that "critical race theory" was coming for your kids. An outright hoax, and one that the fascist right has been promoting extravagantly despite it being entirely made up. Nobody gets taught critical race theory in schools. You wish you had a kid capable of understanding advanced law school classwork between lunch and football practice, but you don't. None of these people have kids commuting from Texas public schools to elite law colleges, bullet-resistant backpacks strapped firmly on in case some of that good Christian freedom comes their way. But they spent a hell of a lot of money on school board campaigns that usually see near-zero amounts of spending, and that money went specifically towards lying to voters.

This is what distinguishes fascism and similar authoritarian movements from democratic ones: a reliance on known-false propaganda for political gain. Not "the occasional use of," but an adaptation of hoaxes as a primary means of winning and keeping power.

There's another element of fascism that is particularly distinctive, and it quickly reared up as the Patriot Mobile-purchased school boards began clarifying what, in their conservative Christian minds, the word "woke" was referring to. "Woke," as it turns out, means having even the barest shred of tolerance for LGBT students.

The agenda of the "Patriot Mobile" school boards has been to ban discussions of race and to hurt non-straight students as much as possible, as soon as possible. Their enemies turn out to be the same enemies that past fascist movements have focused on, and go figure:

"[T]his week at a tense, eight-hour school board meeting, the Grapevine-Colleyville Independent School District’s board of trustees voted 4-3 to implement a far-reaching set of policies that restrict how teachers can discuss race and gender. The new policies also limit the rights of transgender and nonbinary students to use bathrooms and pronouns that correspond with their genders. And the board made it easier for parents to ban library books dealing with sexuality."

What's the point of all that? There isn't one, other than to enforce prejudices of the far-right as the new status quo. The once-slaveholding state of Texas won't be abiding classroom discussions of how racism might have played a role in everything that happened afterwards, and the little tin-pot dictators installed on Texas school boards cannot possibly abide a student identifying as a boy if Patriot Mobile, LLC, believes them to be a girl.

There is, you will note, not a bit of Jesus in any of this stuff. It's just the usual laundry list of far-right enemies, period. Children of the white race must not be exposed to possible sad feelings upon learning about the more unpleasant aspects of their glorious nation; homosexuality shall not be acknowledged, much less tolerated.

There ain't no Patriot Mobile School Boards who have made it their mission to make sure none of their students go hungry or that none of their classrooms get turned into horrific murder scenes because some patriot wielding war weapons wandered from Texas streets into a Texas school. There's no turn the other cheek with this crowd.

Instead they're (1 banning books, (2 prohibiting classroom discussions of racism, and (3 demanding that LGBT students not be recognized at all. Based, in large part, on outrages they completely made up in order to demonize their targets.

There you go, there's your American fascist movement. NBC's consulted expert correctly pins it as Christian Dominionism, a movement that believes it has a duty to capture and remake America into a purely Christian, purely far-right autocratic state, but the movement is "Christian" only in the sense that German Naziism was "Christian." It's a cultish caricature of mainstream Christianity, one more obsessed with symbolism and public displays and, again, hating your neighbor good and hard for the sake of doing as much damage to them as possible. It's been increasingly dropping even the pretenses of religious belief to instead focus on secular culture battles.

Which is how you get Patriot Mobile advertising itself with cutouts of a slim and trim, glisteningly sweaty Donald Trump preparing to fire 30-odd rounds towards an unseen movement enemy. Ain't no loaves and fishes crap anywhere near this brand of nationalism.

As I said, it's an informative read. A fascist movement spent just a little money to turn four school boards into tools of its agenda, and its agenda consists of promoting hoaxes that target movement enemies and create justifications for retaliating against them.

In this case, schoolchildren they don't like and any teachers suspected of supporting them. Books explaining human sexuality. And anyone who isn't Christian. Those are the targets, and nobody's even pretending otherwise.

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A federal judge on Monday ordered a halt to the Justice Department’s review of materials seized from former President Donald Trump’s Mar-a-Lago estate, describing a threat to institutions and the risk of media leaks that could cause harm to Trump.

“Plaintiff faces an unquantifiable potential harm by way of improper disclosure of sensitive information to the public,” U.S. District Court Judge Aileen Cannon wrote in a 24-page ruling issued on Labor Day.

Cannon’s order included permitting a so-called special master to review the seized materials for potential attorney-client and executive privilege. Prosecutors expressed exasperation at Trump’s demand to review for executive privilege, noting that there is no precedent for a former executive to assert privilege to bar review of materials by a sitting executive branch — particularly when the government has determined the need is urgent.

Anthony Coley, a department spokesperson, said it was “examining the opinion and will consider appropriate next steps in the ongoing litigation.”

Cannon, a Trump appointee who was confirmed by the Senate a week after Trump’s defeat in the 2020 election, gave the Justice Department and Trump’s lawyers until Sept. 9 to submit a joint filing to propose a list of special master candidates and outline their duties and limitations. In the meantime, Cannon ruled that the documents would not be returned to Trump.

The Justice Department has indicated that if Cannon were to make a ruling of this kind, she should formally enjoin the department, a format that would permit an appeal. In her order on Monday, she did make the findings required for an injunction that is subject to appeal, although she said she was unsure those findings were required in this instance.

In her ruling, Cannon specifically wrote that the appointment of a special master “shall not impede” the intelligence community’s ongoing assessment of whether Trump’s possession of the top-secret documents caused harm to U.S. national security. That review, which began in response to inquiries from Congress, is being spearheaded by the Office of the Director of National Intelligence.

Such a carve-out for the ODNI, though, could be potentially unworkable because the FBI, an arm of the Justice Department, is a member of the intelligence community and could be consulted as part of the ODNI assessment. A spokesperson for ODNI declined to comment on Cannon’s ruling Monday.

Director of National Intelligence Avril Haines described the review to lawmakers last month as an “assessment of the potential risk to national security that would result from the disclosure of the relevant documents.” She also said her office was working in tandem with the Justice Department on a classification review of the documents that were seized from Trump’s Florida estate, pledging that it will not “unduly interfere with DOJ’s ongoing criminal investigation.” It’s unclear how Cannon’s order would affect that review.

Cannon premised her ruling primarily on Trump’s claims of potential harm of the materials becoming public. She noted that a still-sealed report of items seized by a Justice Department “filter team” — tasked with screening out attorney-client-privileged material — said that “medical documents, correspondence related to taxes, and accounting information” were among them.

Cannon also described “leaks” to the media of information related to the seized materials as a potential risk to Trump, though she acknowledged being unsure of the provenance of those purported leaks.

She also repeatedly emphasized the extraordinary circumstance of the search of a former president’s residence.

“As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own,” she wrote. “A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.”

Cannon also criticized the government’s process for screening potentially privileged material, noting that investigators twice revealed that they had flagged potentially privileged material that was not screened by the filter team.

Justice Department attorneys said these flags were actually “examples of the filter process working.”

“The Court is not so sure,” Cannon wrote. “These instances certainly are demonstrative of integrity on the part of the Investigative Team members who returned the potentially privileged material. But they also indicate that, on more than one occasion, the Privilege Review Team’s initial screening failed to identify potentially privileged material.”

Cannon, citing Nixon-era case law that the Justice Department said decisively undercut Trump’s effort to cite executive privilege, rejected the government’s contention that Trump could never, under these circumstances, be able to successfully assert executive privilege to block the department’s review of the materials.

“The Supreme Court did not rule out the possibility of a former President overcoming an incumbent President on executive privilege matters,” she wrote.

Cannon noted that Trump has not asserted executive privilege over any of the materials seized from his home. Notably, Trump opted against taking the matter to court in May, when the Justice Department first expressed an interest in reviewing the classified material taken from his home and the National Archives granted access to the investigators over Trump’s protests.

In her new order, the judge did not rule in favor of Trump's privilege claims over any specific documents. Rather, she created a process for him to raise such issues. However, it seems likely that the process could delay by weeks or months the government's investigation, which a prosecutor recently said was in its early stages.

Special masters are typically appointed in matters in which an attorney’s office is raided or a phone is seized in order to prevent the disclosure of privileged information to investigators. The Justice Department emphasized that Trump’s home does not fit into that traditional rubric. But Cannon noted that courts have discretion to appoint special masters to promote the appearance of fairness.

“True, special masters ordinarily arise in the more traditional setting of law firms and attorneys’ offices,” she wrote. “But the Court does not see why these concerns would not apply, at least to a considerable degree, to the office and home of a former president.”

She also cited the recent example of a special master ordered in the case of the conservative organization Project Veritas, whose leaders’ phones were seized as part of an ongoing investigation. In that case, Cannon noted, a special master was appointed even though the search did not directly involve an attorney.

Among the logistical issues Cannon left unresolved Monday was the question of whether the government will have to shoulder the bill for the special master, whether Trump must do so or whether they will split the cost.

Josh Gerstein contributed to this report.

Lawmakers are finally back from recess. Here’s what they still need to get done.

Congress may have gotten one big agenda item done before leaving for August recess, but a lengthy to-do list awaits lawmakers as they return this week (in the Senate) and next (in the House). At the top of it: a vote on legislation to protect same-sex marriage that will force some Republicans to stop dithering and take a position on an issue that some still view as politically fraught.

Although a Senate vote on the bill got delayed this summer, Sen. Tammy Baldwin (D-WI), the Democrat leading the push for the legislation, is working to ensure a vote can take place in September, according to a spokesperson.

There’s a lot more on Congress’s docket as well, and a very short time to do it: Both chambers are scheduled to take off a large chunk of October as the midterm elections approach on November 8.

Between now and then, there’s a major deadline on passing appropriations to keep the government open, more judicial vacancies that Democrats want to fill, and a backlog of other bills lawmakers are eying. All of these items take on new urgency given the high likelihood Republicans will take control of the House in January, allowing them to block pretty much anything Democrats want to get done.

Here’s a look at what Congress needs to do, what Democrats really want to do, and one big priority that could crop up later in the year.

1) Passing legislation to protect same-sex marriage

In July, the House passed the Respect for Marriage Act, legislation that would codify protections for same-sex marriage into federal law. Since then, there’s been an ongoing question of if the bill can pass the Senate, given the 60 votes it would need to overcome the filibuster.

The bill passed with a surprising number of House Republican votes (though most of the caucus opposed it), seemingly catching Democratic leaders in the Senate off guard. Democrats in the upper chamber now have a chance to shepherd it into law before the end of this term.

Schumer said right before recess that he wanted to bring the bill to the floor and that Democrats were working to get the Republican support it needed to pass. Several Republicans including Texas Sens. John Cornyn and Ted Cruz have already said they oppose the bill and don’t see a need for it since they don’t believe these rights will be threatened. Democrats, meanwhile, have pointed to an opinion written by Supreme Court Justice Clarence Thomas that referenced Obergefell as a decision he would be interested in revisiting.

Thus far, four Republicans have publicly backed the bill including Sens. Susan Collins (ME), Lisa Murkowski (AK), Rob Portman (OH), and Thom Tillis (NC). Sen. Ron Johnson (R-WI) has signaled that he won’t oppose the bill but has not committed to supporting it, either. Baldwin and Collins, who is also a bill co-sponsor, are trying to address some outstanding Republican concerns by adding an amendment that would clarify the impact the bill would have on religious liberty, Axios reports.

As of last week, Baldwin still seems bullish that the legislation will eventually garner sufficient Republican backing. “Senator Baldwin feels confident there is the Republican support needed to pass the bipartisan legislation,” her spokesperson said.

2) Keeping the government open

It’s that time of year, again. Appropriations — also known as spending bills that fund government agencies — expire at the end of September. At that point, Congress has to pass a whole new set of 12 appropriations bills to keep the government funded and open.

Typically, Congress has been unable to complete its work on all 12 appropriations bills by this deadline, resulting in lawmakers passing what’s known as a continuing resolution (CR), or short-term funding bill, which keeps funding levels for all federal agencies at the same level as the previous year. That route may not be ideal, especially for programs that may need new funding, but doing so means the government won’t shut down because it still has money to operate.

Sen. Patrick Leahy (D-VT), the chair of the Appropriations Committee, plans to introduce a CR in the coming weeks, according to a spokesperson for the panel.

The push to pass the CR could become more complicated if lawmakers try to attach other provisions to the legislation. Already, a group of House lawmakers is opposing the addition of measures that would bolster fossil fuel production, which were offered to Sen. Joe Manchin (D-WV) as part of a deal to support the Inflation Reduction Act. Given Democratic control of both chambers, it’s unlikely the government will shut down, though slim margins in the Senate give Republicans more leeway to put forth their priorities and slow the process.

3) Judges, judges, judges

One major task the Senate has in addition to passing bills is confirming judicial and executive branch nominees. In the last two years, especially, it’s become a high priority for many Democrats who want to even the scales after the Trump administration aggressively filled vacancies. Thus far, Biden has already seen more judges confirmed than recent administrations at the same time.

If Democrats lose the Senate this fall, however, they would also lose the ability to push through judges without Republicans voting for them, meaning it would be hard to approve any judges. That possibility has fueled activist calls for Democrats to approve more judges while they still can. In a recent Slate op-ed, Chris Kang, Demand Justice’s chief counsel, noted that Democrats could still leave over 60 vacancies open at the end of the year.

Kang is urging the White House to expedite the nominations of additional judges and the Senate Judiciary Committee to hold more confirmation hearings, and consider more nominees in those hearings. Senate Judiciary Chair Dick Durbin (D-IL) is committed to keeping judges a “top priority” for the upper chamber, according to a committee spokesperson.

4) Electoral Count Act reform

A bipartisan group of lawmakers is trying to prevent another effort to overturn an election like the one that came to a head on January 6. They want to do that by making changes to the Electoral Count Act, laying out how Congress counts each state’s electoral voters and would make it harder for lawmakers to challenge the outcomes in different states.

A new bill that has the backing of ten Republican senators would clarify the vice president’s role in the vote certification process and require more lawmakers to sign on in both the House and the Senate in order to register a contest to a state’s election results.

Lawmakers have stressed the importance of passing this bill quickly, as some Republicans continue to question the results of the 2020 election and indicate a willingness to do the same if their preferred candidate doesn’t win in 2024.

5) One they might not get to: Raising the debt ceiling

An increase to the debt ceiling is less of an immediate priority and more of an issue that could come up during the lame-duck Congress session later this year.

Last December, lawmakers raised the debt ceiling by $2.5 trillion, an amount that likely means another increase won’t be needed until 2023, according to the Bipartisan Policy Center.

Still, Democrats may want to raise the debt ceiling during the lame-duck portion of the congressional session after the midterms if Republicans win back the House, as they are expected to. If control of Congress is split next year, it’s likely that routine votes like the debt ceiling and appropriations will become much more contentious.

In the last few decades, it’s become more common for lawmakers to use must-pass votes like the debt ceiling to make a political statement. One of the riskiest standoffs took place in 2011, when House Republicans refused to suspend the debt limit until President Barack Obama agreed to spending cuts. That year, the country nearly defaulted and saw its credit rating downgraded because of how close Congress cut to the deadline.

Democrats could raise the debt ceiling and avoid a repeat when they still have full congressional control, by the end of the year.

Without the urgency of a pending deadline, however, Shai Akabas, the economic policy director of the Bipartisan Policy Center, thinks lawmakers probably won’t move quickly. “Given how much else they have on the table and that this won’t be an imminent problem at that time, my guess is that it’s less likely” to happen during lame duck, he told Vox.