James.galbraith

Riding high off delivering a tepid response to President Joe Biden’s State of the Union earlier this week, Iowa Gov. Kim Reynolds decided to use her opportunity in the national spotlight to push transphobia. Reynolds signed into law on Thursday HF 2416, which bars transgender female athletes from competing in women’s and girl’s sports in schools, from K-12 all the way up to universities, including those affiliated with the NCAA, NAIA, and community colleges. Reynolds, whose penmanship hews closer to a child’s than her actual understanding of protecting her state’s youth, gloated about signing the act into law, which takes effect immediately.

“This is a victory for girls’ sports in Iowa,” Reynolds said in a press release, adding that “no amount of talent, training or effort can make up for the natural physical advantages males have over females.” “It’s simply a reality of human biology,” Reynolds said, despite overwhelming evidence to the contrary. Students can only participate in sports that match the gender assigned to their birth certificate at birth, which effectively shuts the door to transgender athlete participation. Iowa is the second state to enact such disturbingly discriminatory legislation, with South Dakota adopting a similar law last month. There are now 11 states with anti-trans athlete legislation signed into law across the country—including Texas, a state that is now being advised by Gov. Greg Abbott to investigate parents of trans children for child abuse. Luckily, a judge blocked such investigations from going into effect.

Openly calling out transphobia for what it is and demonizing those who support quite literally putting the lives of the transgender community at risk is, at this point, absolutely worth it. Take the students of a class at University of North Texas who were having none of what House candidate Jeff Younger had come prepared with. 

Younger, who is so transphobic that he demonized his own child and supports a governor willing to deadname her, came to campus to promote criminalizing gender-affirming health care. If Younger is anything like Iowa’s Reynolds, the speech would’ve been about as informative as the produce sticker on an apple, and not nearly as well-thought-out. I get more out of Younger being called a fascist than I do with even a thorough reading of the transphobic drivel driving his campaign as he competes for the Texas State House and the designation of “most hateful father of the year.” There is no reason outright bigotry should be considered political savvy for Republicans. Keep calling out the fucking fascists and fight back against the states doing the most harm to the transgender community. Because, by definition, only a fascist would support such blatant oppression and transphobia.

Guilfoyle met with former President Donald Trump the morning of Jan. 6 in the Oval Office, investigators said.

The CIA’s worst-kept secret will remain a “state secret.”

There’s no reasonable doubt that Zayn al-Abidin Muhammad Husayn, a Palestinian man who is often referred to as “Abu Zubaydah,” was held by the Central Intelligence Agency at a black site in Poland. Nor is there reasonable doubt that he was tortured at this black site.

Nevertheless, the Supreme Court held on Thursday, in United States v. Husayn a.k.a. Zubaydah, that these widely reported facts are “state secrets,” and that the US government may refuse to confirm or deny them.

The upshot of the Zubaydah decision is that the Court prioritized somewhat vague concerns about national security — that foreign governments might lose faith in the United States if the US government reveals “secret” programs that aren’t really secret — over getting to the bottom of a gross human rights violation.

The facts of the Zubaydah case are horrific. Zubaydah was captured in Pakistan in 2002, and American officials incorrectly believed him to be a top al-Qaeda leader. In a vain effort to extract information that he did not possess, Zubaydah was taken to a black site in Thailand and then another in Poland, where he was repeatedly waterboarded, locked in a coffin-sized box for hundreds of hours, deprived of sleep, and forced to remain in “stress positions,” among other similar tactics.

Eventually, in 2006, the CIA concluded that it had made a mistake. Zubaydah, according to the intelligence agency, “was not a member of al Qaeda.” Nevertheless, he remains a prisoner at Guantanamo Bay, Cuba.

The Zubaydah case itself arises out of a Polish investigation into Zubaydah’s treatment. In 2010, Zubaydah’s lawyers and several human rights organizations filed a criminal complaint in Poland, asking for an investigation into Polish officials who may have contributed to Zubaydah’s mistreatment. Though Zubaydah’s complaint initially achieved little, Polish prosecutors reopened the investigation after the European Court of Human Rights determined that “the treatment to which [he] was subjected by the CIA during his detention in Poland ... amount[ed] to torture.”

To aid Poland’s investigation, Zubaydah’s lawyers asked a US court to compel two psychologists and former CIA contractors, James Mitchell and Bruce Jessen, to testify regarding how Zubaydah was treated in Poland. Mitchell and Jessen helped develop the torture techniques used by the CIA — indeed, their company was paid $81 million to devise these techniques and to oversee their use. Zubaydah’s lawyers also sought documents from Mitchell and Jessen related to Zubaydah’s torture.

A federal appeals court pointed to the overwhelming public evidence — including a 712-page unclassified version of the landmark Senate torture report, a ruling by the European Court of Human Rights examining the Polish torture site, and declassified CIA communications — confirming that Zubaydah was, in fact, tortured by the CIA in Poland. The appeals court concluded that at least some of the information sought by the man’s lawyers should be turned over. Although the federal government may sometimes conceal military and other national security secrets under a doctrine known as the “state secrets” privilege, Judge Richard Paez wrote that “in order to be a ‘state secret,’ a fact must first be a ‘secret.’”

Thursday’s Supreme Court decision reverses Paez, concluding that “sometimes information that has entered the public domain may nonetheless fall within the scope of the state secrets privilege.”

The crux of the Supreme Court’s decision: Foreign governments need to be able to trust US promises

The Zubaydah case produced a maze of concurring opinions, partial dissents, and full dissents. And the justices divided on fairly unfamiliar lines. Justice Stephen Breyer, a left-leaning Clinton appointee, wrote the Court’s main opinion. Justice Neil Gorsuch, an archconservative Trump appointee, dissented — in an opinion joined by liberal Obama appointee Justice Sonia Sotomayor.

In any event, Gorsuch spends several pages of his dissent laying out the overwhelming weight of evidence confirming that Zubaydah was tortured by the CIA in Poland. Here’s a small excerpt:

As far back as 2007, the Council of Europe issued a lengthy report finding that the CIA held Zubaydah at a black site in Poland after his capture. In 2012, Aleksander Kwasniewski, the President of Poland from 1995 to 2005, told reporters that the CIA site was established “with [his] knowledge.” In 2014, the European Court of Human Rights found “beyond reasonable doubt” that Zubaydah was detained in Poland from December 2002 until September 2003. In support of its conclusion, the ECHR cited evidence spanning over 100 pages, including declassified flight records, Polish governmental records, and eyewitness testimony.

Additionally, a 2014 Senate Intelligence Committee report detailed the CIA’s use of torture. Though the full report is classified, Zubaydah’s name appears 1,343 times in an unclassified executive summary of that report and its accompanying documents.

Despite the weight of all this evidence, the Supreme Court concluded that the federal government can refuse to “confirm or deny whether Poland had cooperated with the CIA.”

To justify this decision, Breyer points to a declaration by former CIA director Michael Pompeo arguing that America’s “‘sensitive’ relationships with other nations are ‘based on mutual trust that the classified existence and nature of the relationship will not be disclosed.’” If the US government confirmed that Zubaydah was tortured in Poland, that would “breach” this trust and threaten the United States’ ability to convince foreign governments to cooperate in the future.

Or, as Justice Elena Kagan argued in a separate opinion concurring with most, but not all, of Breyer’s approach, “official confirmation would conflict with commitments the Government has made to foreign intelligence services to never disclose clandestine relationships,” and foreign governments need to be able to trust the United States’ promises.

The Court — or, at least, its Republican majority — isn’t always so concerned about ensuring the United States keeps its promises to foreign governments. Just last August, the Court effectively forced the Biden administration to resume a controversial program requiring many Central American asylum seekers to remain in Mexico while they pursue their asylum claims in the United States. The Court did so, moreover, despite the fact that the Biden administration told the Mexican government that it would end this program.

Nevertheless, the Zubaydah case concludes with a bloodless, pragmatic assessment of national security interests, even when that assessment requires the Court to turn a blind eye to an atrocity.

It’s unclear just how much this decision will prevent anyone from understanding what happened to Zubaydah in Poland. As Breyer notes, “Zubaydah’s need” for more evidence that he was tortured in Poland “is not great.” His lawyer conceded that “we know where Abu Zubaydah was. We want to establish how he was treated there.” Still, many of the details of his treatment can be found in the Senate Intelligence Committee report and elsewhere.

But the result of Thursday’s opinion is that the Supreme Court — and the US government more broadly — is one of the few entities on the planet that refuses to acknowledge what happened to Zubaydah.

If you can't count on anything else, you can count on the sky to be blue, rain to be wet, and Fox News host Tucker Carlson to be racist. (And actually, the former examples are less certain than the last.) Less than a week after President Joe Biden honored a campaign promise and nominated Judge Ketanji Brown Jackson, the first Black woman nominated to the Supreme Court, Carlson called for the president to reveal her Law School Admission Test (LSAT) score on Carlson’s show Wednesday night. As soon as he made the request—no, demand—it triggered a level of insult for me akin to asking the late NASA mathematician Katherine Johnson—whose orbital mechanics calculations helped send the first U.S. crew into space—if she can count to 100.

“So it might be time for Joe Biden to let us know what Ketanji Brown Jackson’s LSAT score was,” Carlson said. “Well, how did she do on the LSATs? Why wouldn't you tell us that? That would settle the question conclusively as to whether she’s a once in a generation legal talent, the next one at hand.”

America has the right to know Jackson’s LSAT score, Carlson continued. Okay, I’ll play. Sure, let’s publicize her LSAT scores, but just make sure we publish it in the same article as we do former President Donald Trump’s academic record, which a superintendent of New York Military Academy was "in a panic" about trying to hide in 2011, Evan Jones, then-headmaster of Trump’s high school, told The Washington Post. “He said, ‘You need to go grab that record and deliver it to me because I need to deliver it to them,’” Jones said of the superintendent's request on behalf of Trump's "prominent" and wealthy friends.

Jeffrey Coverdale, the superintendent in question, confirmed Jones’ account to the Post. “I was given directives, part of which I could follow but part of which I could not, and that was handing them over to the trustees,” he said. “I moved them elsewhere on campus where they could not be released. It’s the only time I ever moved an alumnus’ records.”

Michael Cohen, Trump's former personal lawyer, told Congress Trump sent him “to threaten his high school, his colleges, and the College Board to never release his grades or SAT scores.”

Meanwhile, Jackson’s record of academic excellence is already public. A U.S. circuit judge and former district judge, she graduated cum laude from Harvard Law School in 1996 after earlier graduating magna cum laude from Harvard-Radcliffe College in 1992, according to her circuit court profile. 

Her Supreme Court confirmation hearings are set to begin March 21, CNN reported. And even before she was announced as Biden’s choice, she was lauded by activists and civil rights leaders as a brilliant choice for the seat.

Journalist Elie Mystal wrote of her the day Biden announced the nomination that she “has been the front-runner for ‘the next’ Democratic Supreme Court nominee for six years for reasons beyond her race, sex, and educational credentials.”

“Her strength lies not in the immutable characteristics of who she is but in what she’s done,” he penned for the weekly progressive magazine The Nation. Mystal celebrated Jackson as a high school debate champ, as a clerk for both a judge appointed by former president Bill Clinton and another appointed by the late President Ronald Reagan, and as a public servant in a federal public defender's office and on the U.S. Sentencing Commission, which aims to underscore disparities in sentencing. "If confirmed, Jackson will come to the court with more public defense experience than any justice since Thurgood Marshall," Mystal wrote.

To even mention her name in the same sentence as Tucker’s is an insult. 

“This is textbook racism,” Pulitzer Prize-winning journalist Nikole Hannah-Jones tweeted. “Not even a dog whistle. Show clips of Tucker asking for LSATs of a white candidate. Outside of the ridiculous argument that scores to get INTO law school are the measure of qualification, the presumption that Black pp are dumb is standard white supremacy.”

As the ugly truth comes out, Republican evasions will become harder and harder to sustain.

President Joe Biden’s administration condemned a Texas effort to investigate the use of gender-affirming procedures on children Wednesday, in a move that promised to intensify the state’s fall election between Republican Gov. Greg Abbott and former Democratic Rep. Beto O’Rourke.

The interjection from Biden and the U.S. Department of Health and Human Services arrived hours after a Texas judge temporarily blocked Abbott’s administration from an investigation into the family of a 16-year-old transgender girl but did not stop the practice statewide.

A Feb. 22 directive from the governor ordered the state’s youth protection agency to inspect the use of puberty-blocking drugs or other gender-related medical procedures on children after state officials declared such care can constitute “child abuse” under state law. Abbott also called for inquiries into parents and medical providers who allegedly violate the law.

“This is government overreach at its worst,” Biden said in a statement Wednesday evening. “These actions are terrifying many families in Texas and beyond. And they must stop.”

HHS Secretary Xavier Becerra urged families Wednesday to contact the department’s civil rights office if they were “targeted by a child welfare investigation because of this discriminatory gubernatorial order.”

HHS issued further guidance to states and child welfare agencies and said restrictions on gender-affirming care would likely violate federal law.

“HHS will take immediate action if needed," Becerra said in a statement. "HHS is closely monitoring the situation in Texas, and will use every tool at our disposal to keep Texans safe."

A spokesperson for Abbott did not immediately respond to a request for comment.

The president’s remarks and court ruling arrived one day after civil rights groups, a clinical psychologist and the family of a transgender girl sued Abbott and the state’s child protection agency to halt an order that’s prompted additional scorn from medical groups and local prosecutors.

Texas lawmakers have so far failed to pass legislation to outlaw gender-affirming care for adolescents with gender dysphoria. But a Feb. 18 legal opinion from state Attorney General Ken Paxton asserted such medical care qualifies as “child abuse.”

Abbott followed up with a Feb. 22 directive to Texas Department of Family and Protective Services Commissioner Jaime Masters that ordered the youth protection agency to investigate the use of gender-affirming procedures on children and called for inquiries into parents and medical providers who allegedly violate the law.

According to a complaint filed in a state district court, the protective services department soon launched an investigation into one of its employees — who is also the parent of a transgender child.

Travis County District Judge Amy Clark Meachum granted a temporary restraining order to pause that investigation and will convene a March 11 hearing to hear arguments over the broader fate of Abbott’s orders. A spokesperson for the Texas Department of Family and Protective Services declined to comment on Wednesday's ruling.

“We will do all that’s possible to stop these abuses of power and ensure transgender young people can receive medically recommended treatment,” ACLU of Texas attorney Brian Klosterboer said in a statement after the ruling.

“We appreciate the relief granted to our clients, but this should never have happened and is unfathomably cruel,” Klosterboer said.

Smoking weed may no longer be the only potential impediment to getting a job with security clearance in the Biden administration. Investing in cannabis companies could now trip up applicants, too.

The Biden administration has expanded its employee conduct guidelines to potentially deny security clearance to individuals who have invested in companies that are involved in the marijuana business, according to an internal executive branch presentation shared with POLITICO.

“Eligibility may be negatively impacted if an individual knowingly and directly invests in stocks or business ventures that specifically pertain to marijuana growers and retailers,” according to the document. “Decisions to willfully invest in such activity could reflect questionable judgment and an unwillingness to comply with laws, rules, and regulations.”

The recently updated guidance is the latest illustration of the federal government trying to grapple with its cannabis-related HR policies as the product has become an accepted legal business, medication and recreational substance in states across the country. All told, 37 states, the District of Columbia and some territories have legalized cannabis for medical or recreational use.

The White House has adopted a more forgiving posture than its predecessors. Early on in his tenure, President Joe Biden issued a memo that stated prior marijuana use would not automatically disqualify applicants — the most lenient policy of any administration since before President Ronald Reagan.

But he hasn’t been altogether forgiving. Last year, the White House did fire some employees and rescinded employment offers due to prior marijuana use in the early days of the administration. According to the internal presentation, the White House has not changed its position, despite calls from House Democrats to do so.

The growth of the weed industry has presented additional complications. The new “clarifying guidance” was presented in a memo to agency heads in December from Avril Haines, the director of national intelligence, as GovExec reported in January. The presentation noted that any marijuana-related investment “through a diversified mutual fund that is publicly-traded on a U.S. exchange” should be presumed to have been made unwittingly. At the same time, the presentation ended with a warning graphic that states: "NOT KNOWING IS NOT AN EXCUSE." The new guidance also states that “divestment or disassociation of willful, direct investment in such activities should be considered a mitigating factor.”

As the guidance has worked its way across the sprawling executive branch, it has annoyed some members of the Biden administration who think the rules are antiquated.

Additional scrutiny of marijuana investment is not new for the federal government. Under the Trump administration, the U.S. barred some Canadian citizens from entering the country for investing or planning to invest directly in marijuana companies. Private investment is the primary source of capital for the marijuana industry, as it largely cannot access bank loans due to its federal illegality.

What isn’t clear, however, are which marijuana stocks the White House is referring to. American marijuana companies are not traded on U.S. exchanges, because they are not federally legal companies. Instead, U.S.-based marijuana companies trade on the Canadian securities exchange, a lower–tier stock exchange in a country where cannabis is federally legal. Any cannabis companies traded on U.S. exchanges are either selling only legal CBD products or are manufacturing and selling marijuana in a country where it is federally legal, like Canada. The White House and the Office of the Director of National Intelligence declined to clarify this language.

As such, the issuance of the new guidance could suggest that the White House is gearing up for the further normalization of the business of cannabis and that they’re looking to ensure that conflicts of interests do not exist should the federal government begin the complex process of additional regulation.

Asked about the new policy, a spokesperson for ODNI told POLITICO that, “Increased legalization of marijuana use at state and local levels has prompted questions on how the federal government treats an individual’s involvement with marijuana.” The spokesperson added: “The December 21, 2021 memo … provides clarifying guidance to federal agencies charged with determining such eligibility.”

In modernizing their language, though, the White House risks sending contradictory messages. The guidance says that not knowing the rules is “not an excuse,” but also that adjudicators should “consider whether an individual is knowingly facilitating violations of the Controlled Substances Act.”

Cannabis activists have often referred to Biden as being “behind the times” on cannabis policy. Sixty-eight percent of all Americans — including 83 percent of Democrats — support federal marijuana legalization, according to Gallup. But in 2020, Biden didn’t join his Democratic primary challengers in committing to legalize marijuana nationwide, instead only saying that no one should be in jail for using marijuana, and promising to make medical marijuana research easier to conduct.

In a long-awaited win, the House of Representatives passed the Emmett Till Antilynching Act, which would make lynching a federal hate crime. Yes, for those of you who did not know: Lynching was not a federal hate crime before. The bill passed Monday night, 422 votes to 3. The legislation would have passed with unanimous support if it weren't for three Republicans who voted against the bill, Reps. Andrew Clyde, Thomas Massie, and Chip Roy.

The bill aims to amend Section 249, Title 18 of the U.S. Code to specify lynching as a hate crime act. According to the bill, anyone who conspires to commit such an act resulting in death or serious bodily injury shall be punished by up to 30 years in jail.

Rep. Bobby L. Rush, who introduced the bill, issued a statement following the bill’s passage. He recalled the killing of Emmett Till, the 14-year-old boy after whom the bill is named. Till was killed in 1955 by a group that accused him of flirting with a white woman.

“I was eight years old when my mother put the photograph of Emmett Till’s brutalized body that ran in Jet magazine on our living room coffee table, pointed to it, and said, ‘This is why I brought my boys out of Albany, Georgia,’” Rush said. “That photograph shaped my consciousness as a black man in America, changed the course of my life, and changed our nation.”

Rush also called out Clyde, Massie, and Roy for their votes against the bill. He added that one of the lawmakers previously described lynching as “an example of justice.”

Of course, they don’t even feel bad. Massie took to Twitter to explain his “no” vote, claiming that penalties for “hate” impact and endanger other liberties, such as freedom of speech. He also argued that lynching is illegal in all states already, so the bill was not needed.

Roy followed suit and issued a statement Tuesday explaining his decision, as well.

“Lynching is an unspeakably heinous crime,” he said. “But this bill doesn’t have anything to do with lynching, other than its name.” He called the bill “an effort to advance a woke agenda under the guise of correcting racial injustice” and said it is a “matter for the states.”

Roy is not new to backlash due to his ignorant and racist comments. Last year, during a hearing about AAPI hate crimes, the GOP legislator said: “We believe in justice. There’s old sayings in Texas about ‘find all the rope in Texas and get a tall oak tree.’ You know, we take justice very seriously, and we ought to do that. Round up the bad guys. That’s what we believe.”

Lawmakers and others alike condemned his comment, calling it a dog whistle.

But despite this GOP opposition, the bill passed—making it the first time Congress codified lynching as a hate crime. While several anti-lynching bills have been introduced to Congress since 1918, they have always been stopped by a Senate filibuster.

According to the NAACP, at least 4,743 lynchings occurred in the U.S. between 1882 and 1968. The number of actual lynchings is expected to be higher, as many went unreported. Approximately 72% of all lynching victims were Black, followed by other people of color.

House Speaker Nancy Pelosi noted that the passing of the bill was made possible by "generations of brave activists," including Rush. "Nearly seven decades later, the brutal murder of Emmett Till is forever seared into our collective memory," Pelosi said.

"Sadly, hateful attacks are not yet a relic of the past: from the scourge of police violence to assaults on houses of worship. That is why the Democratic Congress is hard at work empowering our legal system with more tools to bring perpetrators to justice."

Don't believe Republicans for a second when they say they abhor 'judicial activism.'

The Court’s Republican supermajority will hear a case about the Commerce Clause. God help us.

The Supreme Court announced on Monday that it would hear four cases challenging the Indian Child Welfare Act (ICWA), a 1978 law enacted to prevent states from breaking up American Indian families and removing American Indian children from their indigenous cultures.

The four cases will likely be consolidated under the name Haaland v. Brackeen. But the most alarming of these four cases is Texas v. Haaland, because that case targets a provision of the Constitution that is the foundation of much of the federal government’s power.

In the worst-case scenario for, well, pretty much everyone who doesn’t share Clarence Thomas or Neil Gorsuch’s policy preferences, the Texas case could do considerable violence to a wide range of federal laws — including the ban on child labor, the ban on whites-only lunch counters, the Affordable Care Act, and nearly all federal laws governing the workplace.

The Constitution permits Congress to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” This power to regulate commerce is the basis of the modern American regulatory state, and it includes the federal government’s respective powers to set a minimum wage, protect the right to unionize, prohibit discrimination by private businesses, and protect the environment.

(Federal statutes and court opinions frequently refer to Native Americans as “Indians.” For this reason, this piece will include many quotes and legal references that also use this terminology.)

Indeed, the overwhelming majority of federal laws governing private companies exist because of this commerce power.

But the Supreme Court hasn’t always respected Congress’s broad power to regulate the national economy. In the late 19th and early 20th centuries, the Court adopted an exceedingly narrow reading of the Constitution’s Commerce Clause — and then used that reading to strike down child labor laws, sabotage antitrust laws, and strip workers of their right to organize.

This miserly reading of the Commerce Clause is now ascendant on the far right of the judiciary — Justice Thomas is its most prominent evangelist. And Texas is the first Commerce Clause case to reach the justices since Republicans gained a 6-3 supermajority on the nation’s highest court. So it could give us our first window into how the Court’s new majority views this singularly important constitutional question.

The Indian Child Welfare Act, briefly explained

The ICWA was enacted in response to a centurieslong effort to, as federal Judge James Dennis described it, “‘Christianize’ the supposedly heathen Native peoples.” As far back as the George Washington administration, Congress provided funding to raise Native children in white Quaker homes. Beginning in the 1800s, the federal government forcibly removed Native children from their homes and enrolled them in boarding schools intended to divorce them from their tribe’s culture.

As Commissioner of Indian Affairs T.J. Morgan described this project in 1896, its very purpose was “for the strong arm of the nation to reach out, take [American Indians] in their infancy and place them in its fostering schools, surrounding them with an atmosphere of civilization ... instead of allowing them to grow up as barbarians and savages.”

Though these federal boarding schools declined over the course of the 20th century, state governments continued to remove Native children from their families into the 1970s. As Judge Dennis writes, “surveys of states with large Indian populations during the 1960s and 1970s showed that between twenty-five to thirty-five percent of all Indian children were removed from their families.” A survey of 16 states, conducted in 1969, found that “approximately 85% of all Indian children in foster care were living in non-Indian homes.”

The ICWA sought to put an end to this practice of tearing Native children from their homes and placing them in unfamiliar settings — often with white families. Among other things, it provides that, if a state court determines that a child who is either “a member of an Indian tribe” or “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe” must be removed from their home, then the state typically should place that child in another American Indian home:

In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.

The various parties challenging the ICWA raise several objections to the law. Their strongest argument is that the law violates the “anti-commandeering doctrine,” a legal doctrine that strictly limits the federal government’s ability to compel state governments to behave in a certain way. The ICWA would be less vulnerable to this attack if it transferred child welfare cases involving Native children to federal courts, rather than regulating how state courts should handle these cases.

Some parties challenging the ICWA also claim that the law is unconstitutional because it classifies children based on race — although astute readers of the ICWA will notice that it does no such thing. It classifies children based on their membership in (or eligibility for membership in) a tribe, and this is not a racial classification. Some tribes, for example, offer tribal citizenship to the descendants of Black people who were enslaved by members of the tribe, even though these Black tribal members may not be blood descendants of the tribe’s indigenous members.

And then there’s the claim that the ICWA exceeds Congress’s power to regulate under the Commerce Clause.

A brief history of the Commerce Clause

Recall that the Commerce Clause actually gives Congress three separate powers. It permits the federal government to regulate commerce “with foreign nations, and among the several states, and with the Indian tribes.” The Court has, at various times, read Congress’s power to regulate commerce with tribal and foreign nations much more expansively than its power to regulate commerce “among the several states.”

The “Indian Commerce Clause”

The Court held in Cotton Petroleum Corp. v. New Mexico (1989) that “the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs” — “plenary power” means that Congress can do whatever it wants, provided that it does not violate any of the individual rights protected by the Constitution.

From the earliest days of the American Republic, the federal government was understood to have wide discretion to set policy with respect to Native American tribes. In 1789, for example, Secretary of War Henry Knox wrote to President George Washington that “the independent nations and tribes of Indians ought to be considered as foreign nations, not as the subjects of any particular state.” He later wrote that “the United States have, under the constitution, the sole regulation of Indian affairs, in all matters whatsoever.”

Thus, much like the federal government has one national policy toward Russia, France, or Mozambique — not 50 different policies set by 50 different states — it must also have a single national policy with respect to tribal relations. And this policy must be set by Congress, the only legislative body that speaks for the entire nation.

The “Interstate Commerce Clause”

The history of the Interstate Commerce Clause — the provision permitting Congress to regulate commerce “among the several states” — is much more fraught.

For those who want the longer version of this history, I spend several chapters discussing it in my first book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, but the short version goes something like this:

Early Americans lived in a nation where local marketplaces were often quite distinct from the economy of the nation as a whole. A farmer in Iowa, for example, would grow their grain in Iowan land, sell it in a nearby town to other Iowans, and never really compete with other farmers in other states.

As the United States industrialized, however, it built a nationwide network of railroads to transport goods among the states. In this industrialized nation, the same Iowa farmer’s grain would be shipped to Chicago on a rail car, where it would be intermingled with grain grown by farmers throughout the Midwest. Then it might eventually be sold to consumers in New York or Virginia or even somewhere overseas.

This economic history matters because the framers intended for the Interstate Commerce Clause to give Congress the power to regulate the national marketplace — what one early Supreme Court case described as “commerce which concerns more States than one.” Meanwhile, state governments would retain exclusive authority over purely local marketplaces.

But in a modern, industrialized economy, there’s no such thing as a purely local marketplace. Merchants routinely trade across state lines. And even if an individual merchant only trades locally with residents of the same state, that local merchant’s goods compete with other goods produced in other states, which impacts the price of those goods throughout the country.

And so Congress’s power to regulate interstate commerce grew to encompass the entire national economy — and every economic transaction that impacts that economy. As the Court held in United States v. Morrison (2000), Congress’s power to regulate interstate commerce extends to all “activities that substantially affect interstate commerce.”

There are, however, some limits on Congress’s power to act under the Interstate Commerce Clause.

For several decades, beginning in the late 19th century, the Court placed artificial limits on this power — most notably, the Court permitted Congress to regulate the transport of goods across state lines, but not the actual production of those goods. This distinction formed the basis of the Court’s decision in Hammer v. Dagenhart (1918), for example, which struck down a federal law seeking to ban child labor.

But this distinction between transport and production proved unworkable, not just because it led to cruel results like the one in Dagenhart, but because there’s no clear line between a law that regulates the production of a good and a law regulating its sale across state lines. Even if Congress can’t ban factories from employing 8-year-olds, why can’t it ban those factories from transporting goods produced by children across state lines?

Modern-day cases such as Morrison, by contrast, draw a distinction between economic and non-economic activity. Congress’s authority over economic matters is quite expansive, but the interstate commerce power does not apply to many non-economic activities.

So Congress could not pass a nationwide ban on assault, for example, because beating someone up is not an economic activity and typically does not have much of an impact on the national economy. And, for similar reasons, family law — the body of law governing marriages, divorces, child custody, and the like — is typically beyond the reach of Congress’s power over interstate commerce.

Which brings us back to the Indian Child Welfare Act.

Texas wants the Supreme Court to erase the distinction between the Indian Commerce Clause and the Interstate Commerce Clause

The primary thrust of the state of Texas’s argument in Texas v. Haaland is that the vision of Congress’s power over American Indian affairs that has prevailed since the Washington administration is wrong, and that “the notion that Congress has plenary power over some vaguely defined area of ‘Indian affairs’ ‘rests on shak[y] foundations.’”

Instead, Texas would have the Supreme Court read the Indian Commerce Clause and the Interstate Commerce Clause to “mean substantially the same thing.”

The immediate impact of such a decision is that it would likely doom the ICWA, and permit state courts — including Texas’s courts — to make child custody decisions that violate the ICWA. Again, the interstate commerce power typically does not permit Congress to regulate the family. So, if Congress’s power over Native American affairs is similarly limited, then the ICWA is in deep trouble.

And a decision redefining the Indian Commerce Clause to be coextensive with the Interstate Commerce Clause would also mean that anything the Supreme Court says about the scope of the former clause would also impact the later clause. That is, if the Court’s decision in Texas includes language limiting Congress’s ability to pass laws governing American Indians, that same language could also place limits on Congress’s much broader power to enact economic regulations such as the minimum wage or the Affordable Care Act.

One might expect the Supreme Court to show some humility when it is asked to scrap an understanding of the Constitution that has prevailed for more than 200 years. But that has not always been the Roberts Court’s practice. And it certainly hasn’t been the practice of so-called “originalist” justices, who frequently argue that their understanding of the Constitution’s text should prevail, even if it is at odds with decades or even centuries of precedent.

Justice Thomas has even argued that the Court should bring back the unworkable distinction between laws regulating transit of goods and laws regulating production — the very same legal reasoning that the Court once used to strike down child labor laws.

Realistically, there probably aren’t five votes on this Supreme Court to force children back into cotton mills. But every time the Court takes up a Commerce Clause case, the stakes are astronomically high. And we don’t really know yet how this Court’s 6-3 Republican majority will approach this all-important clause.

And even if the Court decides that a case about Native American children isn’t the proper vehicle to roll back the modern understanding of the Interstate Commerce Clause, the Court’s present majority is likely to stick around for many years. Which means they have many years to find other cases that they can use to set fire to one of the most important provisions of the Constitution.

What’s the remedy if a federal official violates your constitutional rights? The answer may soon be nothing.

Robert Boule owns a bed and breakfast along the border between Washington State and Canada, which is cheekily named the “Smuggler’s Inn.” It’s a business that has a fairly shady reputation.

Boule admits that some of his guests used his property to illegally cross the border into Canada. In 2018, Canada charged Boule with multiple criminal violations “for his alleged involvement in helping foreign nationals enter Canada illegally between April 2016 and September 2017.”

Those charges were later dismissed by a Canadian court on constitutional grounds. But now, Boule’s somewhat sketchy inn is the subject of a Supreme Court case that could grant federal law enforcement officers sweeping immunity from lawsuits alleging that they violated the Constitution — even when those officers target people who are entirely innocent.

Egbert v. Boule could radically expand federal officers’ legal immunity

In March of 2014 Boule welcomed a guest who had recently arrived in the United States from Turkey. Although the guest was lawfully present in the United States, federal border patrol agent Erik Egbert decided to confront this guest when he arrived at Boule’s inn.

When the guest arrived, Egbert drove onto Boule’s property and approached the car containing the guest. After Boule asked Egbert to leave, and Egbert refused, Boule stepped between the border patrol agent and his guest. Egbert then allegedly shoved Boule against the car, grabbed him, and pushed him to the ground.

Then, after Boule complained to Egbert’s supervisor about this treatment, Egbert allegedly retaliated against him by contacting the Internal Revenue Service and asking that agency to investigate Boule’s tax statute.

Boule, in other words, alleges that Agent Egbert violated his constitutional rights. The Fourth Amendment forbids “unreasonable searches and seizures,” and if Egbert did, indeed, assault Boule, that could form the basis for a valid Fourth Amendment lawsuit. Boule also claims he had a First Amendment right to complain to Egbert’s supervisor without facing retaliation.

And yet, in Egbert v. Boule, a case being argued in front of the Supreme Court this Wednesday, the Court is likely to cut off Boule’s lawsuit against Egbert before it even gets off the ground. In the process, the Court could gut a seminal precedent from the early 1970s establishing that federal law enforcement officers can be held personally responsible when they violate the Constitution.

The primary issue in Boule is the continued viability of Bivens v. Six Unknown Named Agents (1971), which permits federal lawsuits against federal officials who allegedly violated the Constitution. Although the Court has not yet overruled Bivens, it has already stripped that case of much of its force. The Supreme Court’s most recent case applying Bivens, for example, said that a border patrol agent — who allegedly shot and killed a Mexican child, from across the US-Mexico border, and in cold blood — could not be sued.

So the most likely outcome in the Boule case is that Agent Egbert receives lawsuit immunity. The more difficult question is whether any meaningful part of Bivens will remain in effect after Boule is decided.

Bivens, briefly explained

Although the Constitution places numerous limits on federal law enforcement, including the limits imposed by the First and Fourth Amendments, it is silent about what the proper remedy is when a law enforcement officer violates those rights. A federal law does permit suits against state law enforcement officers who violate “any rights, privileges, or immunities secured by the Constitution and laws,” but there is no similar statute that explicitly authorizes suits against federal agents.

Nevertheless, the Court concluded in Bivens that a right to sue federal law enforcement officers is implicit in the Constitution. “Power,” Justice William Brennan wrote for the Court in Bivens, “does not disappear like a magic gift when it is wrongfully used.” An officer who acts unlawfully “in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own.” And thus there must be some legal remedy to ensure that officers do not abuse this power.

Brennan, in other words, articulated something very similar to the Spider-Man rule: With great power, comes great responsibility.

But Bivens fell out of favor with the Supreme Court almost as soon as it was decided. Months after Bivens was handed down, President Richard Nixon made his third and fourth appointments to the Court — giving it a new majority that was less favorable to the rights of criminal defendants. And the Court has moved inexorably to the right ever since, in large part because the Electoral College and Senate malapportionment allow Republicans to confirm their own nominees, and to block Democratic nominees, even when Republicans do not enjoy majority support from the nation as a whole.

As a result, the Court’s more recent decisions have described Bivens suits as “a ‘disfavored’ judicial activity.” In Hernández v. Mesa (2020), the case where a border patrol agent shot a Mexican child, the five Republicans in the majority concluded that it is “doubtful that we would have reached the same result” if Bivens were “decided today.” And Hernández also instructed lower courts to be very reluctant to hear Bivens claims.

Under Hernández, courts should be skeptical of any Bivens suit that is “different in a meaningful way from previous Bivens cases decided by this Court,” and should dismiss these suits if there are any “special factors counselling hesitation.”

All of which is a long way of saying that Boule faces an uphill battle in a Supreme Court that’s only grown more conservative since Hernández was decided.

The Court could give the entire border patrol sweeping immunity from constitutional litigation

Indeed, given the Hernández decision, it wouldn’t be difficult for the Court’s Republican majority to craft an opinion rejecting Boule’s lawsuit. Justice Samuel Alito’s majority opinion in Hernández is a love letter to the federal border patrol, and can easily be read to immunize every member of that agency from Bivens suits.

Recall that Bivens suits will typically be dismissed if a court determines that the case presents “special factors counselling hesitation.” Alito’s Hernández opinion claimed that several such factors were present in that case, some of which are not at all present in Boule. Among other things, Alito noted that the US and Mexican governments disagreed about what should happen to a US official who shoots a Mexican child from across the border, and suggested that this disagreement should be resolved through “diplomatic channels” and not through a lawsuit.

But Alito’s opinion also spoke reverently about the job of border patrol agents, and the role they perform “by attempting to control the movement of people and goods across the border.” Quoting from a federal statute, Alito noted that the border patrol’s responsibility is to “detect, respond to, and interdict terrorists, drug smugglers and traffickers, human smugglers and traffickers, and other persons who may undermine the security of the United States,” and that border patrol agents might be deterred from doing this job aggressively if they could face lawsuits for illegal conduct.

“Since regulating the conduct of agents at the border unquestionably has national security implications,” Alito wrote, “the risk of undermining border security provides reason to hesitate before extending Bivens into this field.”

So there really isn’t too much uncertainty about how the Court will resolve Boule. Hernández is pretty clear that the courts should not bother themselves with trivial things, such as the First and Fourth Amendments, if those amendments could interfere with the important work of US border patrol agents.

The more uncertain question is whether the Court will use Boule as a vehicle to neutralize Bivens altogether, or at least to cut off many Bivens suits that do not involve the border patrol.

Boule is, admittedly, not the most sympathetic plaintiff who has ever filed a Bivens lawsuit. But the Supreme Court deals in broad legal rules that bind every federal court in the country. In the likely event that the Court rules against Boule, it could do considerable violence to the public’s ability to hold rogue law enforcement officers accountable.

you can (not) touch butts

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Democratic leaders are reportedly in a bit of a panic about the upcoming midterm elections, and have approached President Biden in a White House meeting, asking him to designate a point person for administration help. They want “a consistent strategy for dealing with hot-button issues such as the coronavirus pandemic and inflation.” This is The Washington Post reporting, and not the traditional ‘Dems in Disarray’ Politico, for what it’s worth.

Here’s a suggestion for Democrats: Go on offense. Run against the Russified Republican Party, the Republicans who are  cynically blaming President Biden for Putin’s Ukraine attack even as the war rages. It’s not like there isn’t ample material. Like this trip down memory lane from Laura Clawson: “There are 46 Republicans in the Senate today who in 2020 voted against convicting Donald Trump for withholding military aid from Ukraine in an attempt to get President Volodymyr Zelenskyy to dig up or manufacture dirt against a political opponent Trump feared,” Laura writes. That military aid Zelenskyy was asking for was specifically Javelin anti-tank weapons, the weapons that have been so essential in Ukraine’s ability to hold off the invaders this long.

It’s absolutely not just Trump and his love affair with Putin, because Putin and his oligarchs have had plenty of love to spread around the GOP since 2006.

That $164.6 million has not been going to help Democrats, you can bet on that. There’s been untold billions in Russian dark money circulating in the West, used to undermine the U.S. and other democracies. We saw it happen right before our eyes with the election of Trump. But it’s not just Trump, and that’s what Democrats have to keep reminding the nation.

Take, for example, the $100,000 accepted by Jesse Benton and Doug Wead from a foreign national to arrange a meeting with Trump during the 2016 campaign. Here’s who Benton and Wead are: Benton was a former campaign manager for both Sen. Rand Paul and Senate Minority Leader Mitch McConnell, and Wead was a White House adviser during former President George H.W. Bush’s presidency who also worked for Paul.

Speaking of McConnell, remember how he threatened President Barack Obama with scorched earth to keep the nation in the dark about what the government knew—before the election—about Russia’s interference on behalf of Trump? In 2016, when the Obama administration’s intelligence agencies knew that Russia was interfering to help Trump, McConnell covered it up.

He and then-Democratic Minority Leader Harry Reid were told that Putin was overseeing an operation to disrupt the election and to help Trump. McConnell’s reaction, in the words of Washington Post reporter Greg Miller, who initially broke this story: “’McConnell is basically telling [the CIA], ‘you’re telling us that Russia is trying to help elect Trump. If you try to come forward with this, I’m not going to sign onto any sort of public statement that would condemn Russian interference. But I will condemn you and the Obama administration for trying to mess up this election.’”

And don’t forget that aluminum mill that McConnell’s home state of Kentucky was going to get back in 2019, the mill backed by Rusal, a huge Russian company owned by Oleg Deripaska, the oligarch buddy of Putin. Deripaska was under sanctions at the time, sanctions McConnell and two of his former staffers lobbied the Treasury Department and Congress to lift in order to get the project through. That mill, by the way, has been put on ice by Rusal, undoubtedly waiting to see what McConnell can do for them if he takes control of the Senate again.

Do we need more evidence? How about that 4th of July Senate Republicans spent in Moscow—hanging out in the Kremlin. That would be Sens. Richard Shelby (R-AL), Steve Daines (R-MT), John Hoeven (R-ND), Ron Johnson (R-WI), John Kennedy (R-LA), Jerry Moran (R-KS) and John Thune (R-SD). Texas Rep. Kay Granger tagged along. That was ahead of the 2018 midterm elections, which the senators were there to tell Russia not to interfere with again (wink, wink).

Just a few weeks after that, Sen. Rand Paul (R-KY) played errand boy for Trump, hand-delivering a letter from the would-be autocrat to Putin’s people (Putin himself was out of town). “The letter emphasized the importance of further engagement in various areas including countering terrorism, enhancing legislative dialogue and resuming cultural exchanges,” Paul said. The White House called it “a letter of introduction” for Paul, saying that in it Trump “mentioned topics of interest that Senator Paul wanted to discuss with President Putin.”

That, by the way, is one more dangerous divergence from procedure for Trump, using a channel outside the State Department and his national security team to communicate with Putin. Who knows what the hell the letter actually said. Toss that in with the concealed notes of those five meetings Trump had with Putin. They probably all ended up going down the toilet.

Then there’s that infamous exchange in 2016, between House Republican leadership, discussing Putin’s intentions to destroy Western civilization.

Now Republican leader Kevin McCarthy: There’s … there’s two people, I think, Putin pays: Rohrabacher and Trump… [laughter]… swear to God.

Then House Speaker Paul Ryan: This is an off the record…[laughter]…NO LEAKS…[laughter]…all right?! […] This is how we know we’re a real family here. … What’s said in the family stays in the family.”

Should Democrats be talking about all this now, when the world is seeing exactly what Putin is? Hell, yes. They can start with taking up the anti-corruption bill from Democratic Sen. Elizabeth Warren and Rep. Pramila Jayapal. Among other things, the bill would ban foreign lobbying and “disrupt the system of dark money for influence that allows the wealthy, well-connected, and foreign actors to tilt the political process in their favor.” It’d be great timing to put Republicans on that spot.

There are myriad ways in which the Republican Party of the 21st century has demonstrated just how anti-democratic it is. From the years of collusion with Putin and his oligarchs to the fascist plan for a Republican takeover from Sen. Rick Scott, it’s all there for the taking, and it would be political malpractice for Democrats not to go on the attack with it.

Related stories

As GOP blames Biden for Russia-Ukraine, remember these words: ‘I would like you to do us a favor’

Worse than Trump: Head of the NRSC releases Republican plans for a dystopian, fascist America

Remember when Mitch McConnell covered up Putin’s interference to elect Trump?

Two former staffers of Moscow Mitch lobbied for $200 million Russian-backed Kentucky project

Trump concealed records of five Putin meetings, took possession of interpreter’s notes

Ryan and McCarthy want you to believe they were joking about Russia’s war on Western civilization

What did Paul Ryan and Mitch McConnell know about Trump/Russia collusion and when did they know it?

SFGate reports: The largest plane ever built has been destroyed at an airport outside Kyiv, Ukraine Minister of Foreign Affairs Dmytro Kuleba said Sunday.... The Antonov An-225 Mriya was built in Ukraine in 1985 when the nation was still controlled by the Soviet Union. It has six turbofan engines and is the heaviest aircraft ever built. It was created as a strategic airlift cargo craft, carrying Soviet space orbiters, but was later purchased by Antonov Airlines. It's since been used to airlift oversized cargo and large loads of emergency aid during natural disasters.... Although Kuleba's tweet confirmed the plane's demise, Antonov says it is still gathering information on the massive plane's fate.

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There are 46 Republicans in the Senate today who in 2020 voted against convicting Donald Trump for withholding military aid from Ukraine in an attempt to get President Volodymyr Zelenskyy to dig up or manufacture dirt against a political opponent Trump feared. (Fifty-two Republican senators voted to acquit Trump, but six are no longer in the Senate.) The specifics here are important as we consider how those Republicans are responding to the Russian invasion of Ukraine—and how they are characterizing President Joe Biden’s response.

During a 2019 phone call, Zelenskyy said, “We are ready to continue to cooperate for the next steps specifically we are almost. ready to buy more Javelins from the United States for defense purposes.” Javelins are an anti-tank weapon and have been essential in Ukraine’s defense against Russia. All you really need to know about Trump’s response is that it began, “I would like you to do us a favor though ...”

Trump froze $400 million in military aid to Ukraine as he made his extortion attempt, only unfreezing the aid months later after a whistleblower complaint about it. That frozen aid, coupled with his “I would like you to do us a favor, though,” as a direct response to Zelenskyy’s ask for more Javelins were at the center of Trump’s first impeachment, on which Mitt Romney was the only Republican senator to vote guilty.

Romney voted guilty, and Sens. Bill Hagerty of Tennessee, Cynthia Lummis of Wyoming, Roger Marshall of Kansas, and Tommy Tuberville of Alabama were not in the Senate at the time. Every other Republican in the Senate—along with all 195 Republicans who voted in the House—voted against holding Trump responsible. (And Hagerty, Lummis, Marshall, and Tuberville absolutely would have voted not guilty given the chance.)

Trump has praised Vladimir Putin as Russia invaded Ukraine, and insisted that the invasion would not have happened if he had been in office. Trump is now claiming credit for NATO’s strength (after he threatened to pull the U.S. out of NATO) and for U.S. military aid to Ukraine, all part of his campaign to insist that this would not be happening if he were in the White House. In reality, what Putin would or wouldn’t be doing if Trump was in the White House is a mystery, but what we absolutely know is that if Putin invaded Ukraine, a Trump-led United States would not be taking a leading role in a major international diplomatic response.

Republicans, meanwhile, have largely either dodged answering whether they’re with him on his view of Putin or have tacitly supported Trump’s stance.

The Republican talking points are much more focused on blaming Biden than on blaming Putin. “Vladimir Putin’s decision to launch a renewed invasion of Ukraine is reprehensible,” House Republican leaders said in a group statement last week, before moving directly to their real interest. “Sadly, President Biden consistently chose appeasement and his tough talk on Russia was never followed by strong action.” These are people who literally voted against impeaching Donald Trump for withholding military aid to try to create a scandal that would harm Biden’s chances in 2020. Many House Republicans followed their leaders in blaming Biden more than they blamed Putin, and the same is true in the Senate.

And no wonder. Once Trump got Republicans to back him in attempting to extort elections help from Ukraine, where wouldn’t they go with him?

The continent has come together in the face of Moscow’s invasion of Ukraine.

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I'm starting to think panmoronism should be the philosophy of our age, but then again if panmoronism is true then it's probably a stupid idea.

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When asked about his support for Rogers on Thursday, Ducey defended his independent expenditures, which spent half a million dollars to support her. Despite her white nationalist ideology, he said he was “proud of what we’ve been able to accomplish” in the 2020 election, adding that “she’s still better than her opponent, Felicia French.”

According to the Anti-Defamation League, a national organization that advocates for acceptance and equality, Rogers is at the top of the list of extremist politicians.

“We’ve just released an analysis of extremist rhetoric in the elections this year, and Wendy Rogers is at the top of that list,” Tammy Gillies, Anti-Defamation League regional director for San Diego and Phoenix, said in January.

The analysis came after Rogers shared a message on Martin Luther King Jr. Day on Twitter that said: “Celebrate Lee-Jackson Day.” The tweet included photos of confederate leaders Stonewall Jackson and Robert E. Lee, who fought against the Union to preserve slavery, NBC News 12 reported.

In other tweets, Rogers has referred to herself as being “pure blood” and claimed that such individuals are being “replaced and invaded” by “illegal immigrants.” The theory is called the Great Replacement Myth.

“Words matter,” Gillies said. “And words motivate people. Anti-Semitic tropes and hateful language can lead to actual physical violence, and we’ve seen that over and over again.”

Not only has Rogers publicly supported the Stop the Steal movement, but she has also proudly said she is a member of the Oath Keepers militia, according to NBC News. The list of right-wing conspiracies she supports is endless.

She even supported an event that looked to “cancel Hannkuh” and only celebrate Christmas in the country. Clearly, she is someone you do not want to support.

ATLANTA — The Georgia Senate approved legislation Thursday to require students to participate in high school sports according to the sex that appears on their birth certificate. The Senate backed the measure on a party-line vote of 32-22, with Republicans voting in favor of the bill. Similar bills have been proposed in previous years, but this is the first time such a measure has had a vote by a full chamber. State Sen. Marty Harbin, a Republican, said the bill will create fairness for girls who play sports in Georgia schools. “It is our responsibility as legislators and as adults with common …

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Expect Republicans to blame her for the recent increase in crime, and who knows what else.

ST. PAUL, Minn. — Three former Minneapolis police officers were convicted Thursday of violating George Floyd’s civil rights.

Tou Thao, J. Alexander Kueng and Thomas Lane were charged with depriving Floyd of his right to medical care when Officer Derek Chauvin pressed his knee into Floyd’s neck for 9 1/2 minutes as the 46-year-old Black man was handcuffed and facedown on the street on May 25, 2020.

Thao and Lane were also charged with failing to intervene to stop Chauvin.

The videotaped killing sparked protests in Minneapolis that spread around the globe as part of reckoning over racial injustice. Chauvin was convicted of murder last year in state court and pleaded guilty in December in the federal case.

Kueng knelt on Floyd’s back, Lane held his legs and Thao kept bystanders back.

Kueng and Lane both said they deferred to Chauvin as the senior officer at the scene. Thao testified that he relied on the other officers to care for Floyd’s medical needs as his attention was elsewhere.

Conviction of a federal civil rights violation that results in death is punishable by life in prison or even death, but such sentences are extremely rare. The former officers will remain free on bond pending sentencing.

During the monthlong trial, prosecutors sought to show that the officers violated their training, including when they failed to move Floyd or give him CPR. Prosecutors argued that Floyd’s condition was so serious that even bystanders without basic medical training could see he needed help.

The defense said their training was inadequate and that the officers deferred to Chauvin as the senior officer at the scene.

Prosecutors told jurors during closing arguments that the three officers “chose to do nothing” as Chauvin squeezed the life out of Floyd. Defense attorneys countered that the officers were too inexperienced, weren’t trained properly and did not willfully violate Floyd’s rights.

A handful of protesters stood outside the courthouse Thursday morning holding large signs, including one mocking the officers that said, “If I only had a brain, a heart, the nerve." It was decorated with pictures of the Scarecrow, Tin Man and Cowardly Lion from “The Wizard of Oz.”

All 12 members of the jury — eight women and four men — appeared to be white, although the court has not released demographics such as race or age. A woman who appeared to be of Asian descent was excused Tuesday from the panel without explanation; a man who appeared to be of Asian descent remains as an alternate if one of the current 12 cannot continue.

Lane is white, Kueng is Black and Thao is Hmong American.

That was a sharp contrast to the jury that deliberated the state murder case against Chauvin. That jury was half white and half nonwhite.

The federal jury pool was selected from throughout the state, which includes areas much more conservative and less diverse than the Minneapolis area from which Chauvin’s jury was drawn. Chauvin was convicted of murder and manslaughter, and later pleaded guilty to a federal civil rights charge.

Prosecutors sought to show during the monthlong trial that the officers violated their training, including when they failed to roll Floyd onto his side or give him CPR. They argued that Floyd’s condition was so serious that even bystanders without basic medical training could see he needed help.

But the defense said the Minneapolis Police Department’s training was inadequate and that the officers deferred to Chauvin as the senior officer at the scene.

Chauvin and Thao went to the scene to help rookies Kueng and Lane after they responded to a call that Floyd used a counterfeit $20 bill at a corner store. Floyd struggled with officers as they tried to put him in a police SUV.

Thao watched bystanders and traffic as Kueng knelt on Floyd’s back and Lane held his legs.

The jurors were not sequestered — isolated from outside influences that could sway their opinion — which is sometimes done by having them stay in hotels during deliberations. They were allowed to watch videos from the scene and view other evidence as much as they wanted during deliberations.

Federal civil rights violations that result in death are punishable by up to life in prison or even death, but those sentences are extremely rare, and federal sentencing guidelines suggest the officers would get much less if convicted.

Lane, Kueng and Thao also face a separate trial in June on state charges alleging that they aided and abetted murder and manslaughter.

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Personally I keep trying to sell out, but the buyers aren't forthcoming.

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DidgetMaster writes: Hard drive costs now hover around $20 per terabyte (TB). Drives bigger than 20TB are now available. Fast SSDs are more expensive, but the average user can now afford these in TB capacities as well. Yet, we are still using antiquated file systems that were designed decades ago when the biggest drives were much less than a single gigabyte (GB). Their oversized file records and slow directory traversal search algorithms make finding files on volumes that can hold more than 100 million files a nightmare. Rather than flexible tagging systems that could make searches quick and easy, they have things like "extended attributes" that are painfully slow to search on. Indexing services can be built on top of them, but these are not an integral part of the file system so they can be bypassed and become out of sync with the file system itself. It is time to replace file systems with something better. A local object store that can effectively manage hundreds of millions of files and find things in seconds based on file type and/or tags attached is possible. File systems are usually free and come with your operating system, so there seems to be little incentive for someone to build a new system from scratch, but just like we needed the internet to come along and change everything we need a better data storage manager. See Didgets for an example of what is possible. In a Substack article, Didgets developer Andy Lawrence argues his system solves many of the problems associated with the antiquated file systems still in use today. "With Didgets, each record is only 64 bytes which means a table with 200 million records is less than 13GB total, which is much more manageable," writes Lawrence. Didgets also has "a small field in its metadata record that tells whether the file is a photo or a document or a video or some other type," helping to dramatically speed up searches. Do you think it's time to replace file systems with an alternative system, such as Didgets? Why or why not?

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Yet another case might allow justices to carve out exceptions for conservative Christians.

According to web developer Matt Ortega, his attempt at signing up as Devin Nunes Cow got him banned from TRUTH Social. Wait, what?

Ortega showed the email banning his account to Business Insider and explained that after being put on a waitlist to get his account through (one of the many glitches that took place during the launch), he received news of his ban the following evening. "The next evening, I received the email notifying me of the ban. I was never able to log in, leading me to believe the account was banned simply for the username mocking the media company's CEO with a well-known meme." Maybe it is No. 23, “disparage, tarnish, or otherwise harm, in our opinion, us and/or the Site.”

Business Insider did go through the TMTG’s Terms of Service to try and figure out why-oh-why this censorship was happening on a platform made out of American flags and freedom (and suckers’ money). Maybe it’s “17.) harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Site to you.” Hard to say.

The background here is that in March 2019, Nunes decided that the best way to promote the GOP brand of the First Amendment was to sue a parody Twitter accounts Devin Nunes’ Mom and Devin Nunes’ Cow. This made the Trump crime family’s choice of having Nunes become TMTG’s new CEO an extra perfect bit of comedy. Yes, the whole Grand Old Party is a joke, but the ramifications of their almost satire-proof fascism are a lot less funny.

And an update:

At the same time, right-wing anti-vaxxer and true wildman Stew Peters took time away from having guys on claiming to be magnetized by a COVID-19 vaccine and wondering out loud why people who aren’t getting vaccinated keep getting COVID-19 to be allowed to set up an account well before everyone else. And guess what? He says he’s getting censored!

According to Peters, he posted one of his deep thoughts and got stamped with a “Sensitive Content” label. What did he say? According to him, all he said was: “The people in our government responsible for allowing our kids to be killed with these dangerous COVID shots, should be put on trial and executed.” That’s a special kind of stupid. But as Peters lamented—and in my mind’s eye he sounds like a little child who has been up too late after a sugar bender—“Free speech isn’t free.”

Be still my laughing heart.

DeJoy is brazenly flouting the administration’s goals on labor and on environmental protection. Biden has committed to converting the entire federal fleet of vehicles to electric power. The USPS fleet is about one-third of all those vehicles. The USPS is an independent agency and doesn’t have to abide by Biden’s executive order on zero-emissions electric vehicles.

So he’s not. “Our commitment to an electric fleet remains ambitious given the pressing vehicle and safety needs of our aging fleet as well as our fragile financial condition,” DeJoy said in a news release. Meaning he really doesn’t have a commitment to an electric fleet. “The process needs to keep moving forward. The men and women of the U.S. Postal Service have waited long enough for safer, cleaner vehicles.”

On the other hand, federal courts previously have held that the USPS is bound by the National Environmental Policy Act when making major policy decisions. If a court found the agency didn’t adequately analyze the environmental impact of this decisions, the contract could be invalidated. And this decision is going to go to court, with environmental groups already preparing to sue. Adrian Martinez with environment group Earth Justice told Bloomberg that the USPS “is playing a very high-stakes game” by “going against what the law requires.”

“The United States Postal Service’s ill-informed and costly decision will lock Americans into an overwhelmingly gas-powered mail delivery system for generations to come,” the Zero Emission Transportation Association, which represents electric vehicle makers and electric utilities, said in a statement. “This decision directly subverts federal regulations and our international commitments — and President Biden’s executive order to electrify the federal fleet.”

DeJoy clearly feels untouchable at this point, and he might be despite the fact that he was in the top five of the most corrupt Trump hires, and is definitely the most corrupt Trump holdover. For whatever reason, President Biden made the decision to wait on filling the Board of Governors with his people, making it clear to them that getting rid of DeJoy was a priority. Over the past year, there hasn’t been a great deal of pressure from Democrats in Congress to do it—even though they loathe DeJoy—because they’ve been prioritizing their Postal Service reform bill and haven’t wanted to rock that boat.

Now that bill is headed for a Senate vote next week. It’s got broad bipartisan support, but that doesn’t mean Republicans are going to allow it to pass easily. They’ve already delayed it once for no good reason.

Senate Republicans have also begun a concerted campaign of blocking Biden’s nominees in committee, so the future of the two remaining Biden nominees to the Postal Service Board of Governors has to be in question, particularly if it looks like their appointment would end up with DeJoy’s ouster.

DeJoy’s assault on the environment could potentially be stopped in the courts, but that doesn’t mean he shouldn’t be out on his ear. That’s going to take a concerted and unified Senate Democratic conference that is willing to change the Senate’s rules on nominations to defeat Republican obstruction. It’s going to take Biden prioritizing saving the institution.

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According to Magness, who has since been fired from ERCOT, even though power systems were coming back on line within 48 hours of the initial collapse, he got a message from the governor’s office.

“She told me the governor had conveyed to her if we emerged from rotating outages it was imperative they not resume,” Magness testified. “We needed to do what we needed to do to make it happen.”

What ERCOT could do was what ERCOT did: keep prices punishingly high. Prices were held at $9,000 per megawatt hour, over 150 times greater than the average price.

According to the Chronicle, the thinking behind this was that it would “encourage large power users like factories and petrochemical plants to stay offline.” In other words, the cost of electricity was set so high that business didn’t dare operate, because they couldn’t face the bills. However, that same price was passed along to consumers by many providers, generating costs that found ordinary households facing bills well above $15,000 for a single month of power. 

It was also a strategy that ignored the real problems with the grid, like how natural gas providers had failed to insulate pipelines and storage facilities, meaning that many Texas power plants were simply unable to get fuel. Raising the prices for power did nothing to help.

Instead, this was punitive pricing, designed to punish anyone who dared use power. Except that it also came in the middle of an intense wave of cold, at a time when people had to use electricity to warm their homes.

And even if that punish-them-with-pricing strategy seemed like a good idea on Feb. 15, when the Public Utilities Commission first pushed ERCOT to set the needle at the maximum price, there doesn’t seem to be a good excuse for keeping it there an additional two days after the system had stabilized.

Magness explained concerns about the remaining potential for failures, and the bankruptcy judge seemed to sympathize, saying the former ERCOT official was “looking into the unknown” when trying to figure out the best response.

But the biggest news may be the testimony that Abbott was directly involved in setting the electrical price high and keeping it there. That’s because last year, Abbott’s office denied any connection to ERCOT’s pricing strategy. Abbott spokesman Mark Miner said that Abbott was not “involved in any way” in the decision to keep prices at the maximum, despite having an aide seated with the ERCOT board during the crisis. That statement is directly counter to Magness’ testimony. 

On the question of whether lowering prices would have put the power grid at risk of additional failures, the answer isn’t completely clear. The way pricing structures are set up at ERCOT, the incentive to fail is high. When average price for a megawatt of power is less than $60, the opportunity to see it shoot up to $9,000 is rarely missed. While Texas may have few outages as bad as those that happened last February, even in the average year, electrical providers make most of their money in just a few days when the system is at or near collapse.

Those prices help ensure that no one in Texas is actually building backup capacity, or investing in hardening their facilities against bad weather. The incentives are all there to make more money through failure instead of reliability.

However, what appears to be 100% clear is that Abbott lied to the state, and to regulators, when he claimed to have no involvement in the decision to keep prices high.