- On Monday, Amy Coney Barrett was officially sworn in as the new justice on the Supreme Court, ending a highly contentious partisan battle just a week before the election.
- In the weeks following the election, the new justice is set to hear several landmark cases, including the most recent challenge to the Affordable Care Act (ACA) and another lawsuit that involves LGBTQ discrimination protections.
- Many critics have expressed concerns that Barrett will push the court to overrule the ACA and try to roll back LGBTQ protections based on her previous public statements and personal views.
- As soon as the end of this week, the Supreme Court will also decide whether or not to hear two election-related cases regarding mail-in ballots extensions in key battleground states.
Barrett Appointed to Supreme Court
The Senate officially approved the nomination of Amy Coney Barrett to the Supreme Court on Monday with a vote of 52 to 48.
The decison fell almost entirely along party lines, and though her nomination was hotly contested, this outcome was largely expected.
Sen. Susan Collins (R-Me.) was the only Republican to vote against the appointment. No Democrats voted to confirm Barrett, marking the first time in 151 years that not one member of the minority party voted to confirm a justice.
The confirmation marks the end of the historic, lightning-fast nomination process defined by partisan divisions. Democrats repeatedly accused their Republican colleagues of hypocrisy for breaking the precedent they themselves set when they blocked President Barack Obama’s Supreme Court nomination ten months before the 2016 election.
That decision was made under the premise that the nomination came too close to the election and that the next president should get to pick the nominee.
Now, with just seven days to go before the election, Republicans have their new Supreme Court justice, as well as a solid conservative majority on the highest court for the first time since the 1930s.
Here’s a look at what happens next.
Affordable Care Act
Judge Barrett is being seated right as the court is scheduled to hear some highly consequential cases. Arguably the most significant is the latest challenge to the Affordable Care Act (ACA), also known as Obamacare. The court will begin hearing oral arguments on starting Nov. 10, just one week after the election.
With Barrett assuming her role on the bench right as the court is set to hear the landmark case, many expressed concerns that she could still sway the court to get rid of the ACA, thus leaving more than 20 million Americans without health insurance during a pandemic.
The new justice has publicly criticized the Supreme Court decision that upheld Obamacare as constitutional. In a 2017 article, she argued that under an originalist reading of the Constitution — interpreting it the way it was originally written — Obamacare would not be allowed.
In that same article, Barrett also criticized Chief Justice Roberts’ stance on the ACA and claimed that he considered too many factors outside of the Constitution
Notably, when pressed on the topic during her Senate confirmation hearings, she did give some supporters of the law hope when she outlined her views on the legal doctrine known as severability, which allows for parts of a law to be struck down without getting rid of an entire law.
Barrett told the Senators that the presumption is to always favor severing parts of a given law rather than scrapping the whole thing. Some argued that opinion would be favorable for how she may rule on Obamacare, but others remained skeptical.
Even before hearing the ACA arguments, the Supreme Court is also set to take up another key case that could allow private agencies that receive taxpayer funding to provide government services to deny those services to people based on their sexual orientation.
The case stems from a lawsuit filed against the City of Philadelphia by Catholic Social Services (CSS) in 2018. City officials canceled a contract with the agency to provide foster care services to children after learning that CSS refused to accept same-sex couples as foster parents because of its own religious objections.
A lower court ruled that the city was allowed to end the contract because it fell under the enforcement of its anti-discrimination policy, and an Appeals Court upheld that decision. Now the case is set to go before the Supreme Court, and the consequences could highly significant.
“A broad ruling could decide when religious organizations deserve exemptions from anti-discrimination laws that the groups say would cause them to violate deeply held beliefs, such as what constitutes a marriage,” The Washington Post explained.
Many Democrats and activists have criticized Barrett for her controversial views on LGBTQ rights, specifically pointing to a lecture she gave in 2016 where she defended Supreme Court justices who argued against making gay marriage legal.
Others have also noted a separate speech she gave, where she argued that Title IX — the law that protects people from sex-based discrimination in education programs or other activities that receive federal funding — does not apply to trans people.
During the Senate hearings, Barrett was largely tight-lipped about her views on key Supreme Court decisions. At one point she refused to say whether she believed the case that established gay marriage as legal had been decided properly.
There are also some other legal battles that Barrett could rule on as early as later this week. This Friday, the justices are expected to meet privately to decide what cases could still be added to this term’s docket.
Two of the cases they are considering are emergency orders regarding ballot extensions in two key battleground states: Pennsylvania and North Carolina.
Last week, the Supreme Court denied a request from Pennsylvania’s Republican Party to shorten the deadline in which state election officials could receive absentee ballots. The highest court took up the case after Pennsylvania’s Supreme Court sided with Democrats and allowed them to extend the deadline that mail-in ballots could be received to three days after the election.
Notably here, the Supreme Court did not directly rule against the Republicans, but instead split the decision 4-4, meaning the court was deadlocked, and thus the decision from the lower court would stand.
But now, with the ninth seat filled, Pennsylvania Republicans are asking the court to reconsider blocking the extension and to fast-track the decision.
In a very similar legal battle, the high court has also been asked to consider whether or not to hear a case brought by the Trump campaign and the North Carolina Republican Party asking them to block a mail-in ballot extension approved by the State Board of Elections last month.
The extension would allow officials to receive ballots postmarked by Election Day for nine days after the election. So far, that new deadline has already been held up by a district court and a federal appeals court.
Wisconsin and Kavanaugh
Currently, it is unclear if the court will hear either case, though it is worth noting that they have taken up a number of similar election-related legal battles in recent weeks.
On Monday, the Supreme Court voted 5-3 to reject attempts by Democrats in Wisconsin to extend the deadline for accepting mail-in ballots to six days after the election. Instead, the court ruled that mail-in ballots in the state can only be counted if they arrive on Election Day.
While the court did not provide a reason for this decision, as is normal in cases like this, some justices filed opinions including Brett Kavanaugh, who sparked controversy in his defense of his decision to strike down the extension.
“Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election,” he wrote, arguing for the importance of deadlines. “And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.”
Many condemned the justice, accusing him of issuing a shockingly partisan opinion and arguing that the situation he detailed would not be considered “flipping” the election, including Justice Elana Kagan, who took aim at Kavanaugh’s argument here in a footnote in her own opinion.
“But there are no results to ‘flip’ until all valid votes are counted,” she wrote. “And nothing could be more ‘suspicio[us]’ or ‘improp[er]’ than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process.”
Some also pointed out the fallacy in Kavanaugh’s argument that mail-in ballots that arrive after election day will change the outcome that a majority of voters wanted.
“If Trump leads by 10 votes on Nov. 3 but 6,000 ballots arrive the day after having been sent on Oct. 24, most of them preferring former vice president and Democratic nominee Joe Biden, Kavanaugh worries that this constitutes an unfair rejection of the will of the public,” The Post wrote.
Others still argued that Kavanaugh’s opinion is especially concerning given the fact that currently, election officials in at least 18 states and Washington, D.C., do count ballots that arrive after Election Day.
“In these states, there is no result to ‘flip’ because there is no result to overturn until all valid ballots are counted,” Slate reported, noting that Kavanaugh’s opinion echoes false claims repeatedly made by President Donald Trump about absentee voting.
In fact, early that same day, the president posted a tweet that mirrored the justices’ argument almost exactly.
“Big problems and discrepancies with Mail In Ballots all over the USA,” he wrote. “Must have final total on November 3rd.”
The post was quickly flagged by Twitter as election-related misinformation.
See what others are saying: (The Washington Post) (Slate) (CNN)
GSA Official Emily Murphy Finally Approves Biden Transition. Here’s What Comes Next
- On Monday, the head of the General Services Administration, Emily Murphy, admitted that Democrat Joe Biden is the “the apparent president-elect.”
- While this much focus isn’t usually placed on the GSA administrator, Murphy had previously refused to allow Biden’s transition team to access valuable resources ahead of his inauguration. To note, GSA transition approval does not certify Biden as the winner of the 2020 Presidential Election.
- The news comes as Biden has made several recent announcements detailing key cabinet positions, including his picks for the first female Treasury secretary and the first Latino Homeland Security secretary.
Trump Official Authorizes Transition
The U.S. government has finally begun the process of allowing President-elect Joe Biden to transition into the presidency, despite Donald Trump’s repeated refusal to concede.
On Monday, the administrator of the General Services Administration, Emily Murphy, admitted in a letter that Biden was the “the apparent president-elect.”
The GSA is an independent branch of the government that has the power to direct the flow of transition resources to an incoming president. Murphy’s letter now gives Biden several notable resources, including access to millions in federal funds. He and his transition team are also now able to begin holding meetings with government agencies to discuss policy changes ahead of his inauguration in January.
Usually, the GSA administrator’s role goes unnoticed following elections, but Murphy’s refusal to sign transition documents until Monday drew sharp criticism. In fact, several leading medical groups have urged President Trump to share vital COVID-19 data with Biden, a move they said could “save countless lives.”
Because of her initial refusal, many accused Murphy — who is former attorney for the Republican National Committee — of being influenced by the White House.
In her Monday letter, Murphy denied that claim.
“I have dedicated much of my adult life to public service, and I have always strived to do what is right,” she said. “Please know that I came to my decision independently, based on the law and available facts. I was never directly or indirectly pressured by any Executive Branch official — including those who work at the White House or GSA — with regard to the substance or timing of my decision.”
Murphy also noted in her letter that she had “recevie[d] threats online, by phone, and by mail directed at my safety, my family, my staff, and even my pets in an effort to coerce me into making this determination prematurely.”
As far as why Murphy took so long to sign this letter, according to The Washington Post, those close to her said she wanted more certainty before making the call. Reportedly, she wanted to see if battleground states would begin certifying their individual elections while Trump’s legal battles played out in court.
On Monday, Michigan certified its results. On Tuesday, both Pennsylvania and Nevada certified their results. In all three cases, Biden was officially declared the winner.
As The Post notes, there was also the prospect of becoming the target of Trump’s anger and the risk that he would fire her or other top aides. Only recently have multiple, major Republicans who support Trump started to break with the president and admit that it’s time for him to concede for the benefit of the country.
Trump Still Won’t Concede
Still, Trump is refusing to concede.
In a Monday tweet thanking Murphy, he said, “Our case STRONGLY continues, we will keep up the good fight, and I believe we will prevail! Nevertheless, in the best interest of our Country, I am recommending that Emily and her team do what needs to be done with regard to initial protocols, and have told my team to do the same.”
However, Trump’s legal challenges appear to be anything but strong. Case after case has failed to hold up in court, including in front of judges that Trump himself appointed.
Trump also appears to either be taking credit for Murphy’s decision to kick start Biden’s transition process or seemingly admitting that he did, in fact, pressure Murphy to hold off on signing this letter.
That comes despite the fact that The Post reported Murphy’s team told the White House Counsel’s Office on Friday that she planned to designate Biden the winner on Monday. According to the outlet, her office never received a response.
In addition to Murphy’s letter now clearing the way for Biden to access vital resources needed to begin building his government, he has also recently announced several of his cabinet picks.
On Sunday, Biden announced Antony Blinken as his secretary of state. Notably, Blinken is the former deputy secretary of state under President Obama.
Unsurprisingly, Blinken is also expected to be a massive departure from current Secretary of State Mike Pompeo. For example, Blinken has been highly critical of Trump’s “America First” policies, saying that they’ve isolated the U.S. and provided opportunities for adversaries.
Blinken is expected to help the U.S. rejoin major global agreements or organizations, such as the Paris climate accord, the Iran nuclear deal, and the World Health Organization.
On Monday, Biden has chosen Alejandro Mayorkas as his secretary of Homeland Security. Like Blinken, Mayorkas was a deputy secretary of his respective department under Obama.
He also previously served as the director of US Citizenship and Immigration Services.
As a Cuban-American, he will be the first Latino to lead the department, which is doubly notable because he’s expected to overhaul most if not all of Trump’s hardline immigration policies.
“When I was very young, the United States provided my family and me a place of refuge,” Mayorkas said on Twitter Monday. “Now, I have been nominated to be the DHS Secretary and oversee the protection of all Americans and those who flee persecution in search of a better life for themselves and their loved ones.”
Among other notable picks, Biden has tapped Janet Yellen to become Treasury secretary. Previously, she served as the chair of the Federal Reserve under Obama but was not reappointed by Trump after he won the 2016 election.
If confirmed by the Senate, she would become the country’s first female Treasury secretary.
Regarding climate change, former Secretary of State John Kerry has been chosen to become the special presidential envoy for climate. Kerry will not need to be confirmed by the Senate for this role.
“This marks the first time that the [National Security Council] will include an official dedicated to climate change, reflecting the president-elect’s commitment to addressing climate change as an urgent national security issue,” the Biden transition team noted.
In addition to that, Biden has chosen Jake Sullivan as his national security adviser, a position he also held for Biden in a vice-presidential capacity during part of Obama’s second term. Sullivan played a key role in negotiations concerning the 2015 Iran nuclear deal.
See what others are saying: (NBC News) (The Washington Post) (CNN)
Press Secretary Falsely Claims Trump Wasn’t Given an “Orderly Transition of Power”
- Press Secretary Kayleigh McEnany falsely claimed that President Donald Trump was not given “an orderly transition of power” after he won the 2016 election.
- In reality, Hillary Clinton conceded defeat the day after the election, and President Obama Obama met with Trump to start work on the transition two days after. Trump himself even thanked Obama for making the transfer peaceful and smooth in his inauguration speech.
- By contrast, Trump has launched an unprecedented effort to prevent the peaceful transfer of power. He’s directed key members of his administration to block the transition process and filed dozens of lawsuits aimed at overturning election results, despite the fact that a growing number of Republicans have encouraged him to start the transition process.
Kayleigh McEnany’s Claims About Trump Transition
Press Secretary Kayleigh McEnany falsely claimed on Saturday that President Donald Trump was not given “an orderly transition of power.”
Her comments came during her first press briefing since the election was called for former Vice President Joe Biden, where she was asked about Trump’s refusal to concede and start the transition process.
“While, in 2016, President Trump became the duly elected President, many sought to undermine him, discredit him, delegitimize him, and deny his victory,” she continued. “There were no calls for unity; there were no calls for healing.”
“So while every legal vote is counted, let us not forget the inexcusable transition, or lack thereof, that President Trump had to endure in 2016 and four years into his presidency.”
McEnany’s claims are flatly wrong for a number of reasons. Trump’s opponent in the 2016 election, former Secretary of State Hillary Clinton, conceded the morning of Nov. 9, the day after the election.
“Donald Trump is going to be our president,” Clinton said in her concession speech. “We owe him an open mind and the chance to lead.”
Help From Obama
Later that same day, then-President Barack Obama also acknowledged Trump’s win and emphasized the importance of a smooth transition process. The day after that — less than 48 hours after the election had been called for Trump — the president-elect went to the White House to meet with Obama and start the transition process.
“As I said last night, my number one priority in the coming two months is to try to facilitate a transition that ensures our president-elect is successful,” Obama told reporters while sitting beside Trump.
“We want to make sure that they feel welcome as they prepare to make this transition, and most of all, I want to emphasize to you, Mr. President-elect, that we now are gunna wanna do everything we can to help you succeed,” he continued. “Because if we succeed, then the country succeeds.”
In fact, Trump himself even thanked Obama for helping to ensure the peaceful transfer of power while speaking at his inauguration.
“Every four years we gather on these steps to carry out the orderly and peaceful transfer of power, and we are grateful to President Obama and First Lady Michelle Obama for their gracious aid throughout this transition,” he said. “They have been magnificent. Thank you.”
Notably, as the Associated Press pointed out, Trump’s transition was indeed chaotic, but that was almost entirely due to Trump’s own doing. While the Trump transition team did receive standard cooperation during the transfer, they largely ignored advice and offers of help from Obama staffers.
Beyond that, Trump also fired the head of his transition, former New Jersey Gov. Chris Christie (R) and scrapped months of transition planning he had prepared over a feud between Trump’s son-in-law Jared Kushner and Christie, who in his previous role as a U.S. Attorney had put Kushner’s father in jail for tax evasion, witness tampering, and illegal campaign contributions.
McEnany’s blatantly false assertion appears to be an attempt to downplay and justify the unprecedented actions Trump has taken to block Biden from assuming the presidency during a pandemic, even as numerous experts warn that if the president does not start sharing COVID data with the president-elect and his transition team, cost countless lives could be lost.
In addition to Trump’s own refusal to concede, he has also directed those in his administration to play ball as well.
Most significantly, Emily Murphy, the head of the General Services Administration (GSA) — the agency tasked with handing hand transition resources off to Biden’s transition team — has refused to sign off on the process.
By contrast, the GSA under the Obama Administration gave Trump’s transition team the reins the day after the 2016 election.
Trump and his allies have also filed dozens of frivolous lawsuits in an attempt to overrule the will of American voters in key swing states. According to reports, the campaign has now either lost or withdrawn over 30 of those suits.
As their legal strategy starts to fall apart, team Trump has taken a new direction: getting Republican-controlled legislatures in states that gave the popular vote to Biden to basically overrule the will of the people by choosing a pro-Trump slate of electors to send to the electoral college.
Usually, the party of whichever candidate wins the popular vote in a given state gets to designate electors who will go to the Electoral College in December to cast the state’s electoral votes for the chosen candidate.
However, a state legislature could hypothetically claim that the results of the popular invalid and invoke their constitutional right to step in and choose a slate of electors they believe more accurately reflects the election results of their state.
Many believe that such a move would be illegal or at the very least incredibly undemocratic as it would amount to nothing more than a full-blown attempt to steal the election and defy the will of voters.
But Trump and his cronies have been pushing Republican legislators in states he lost narrowly to take this route. On Thursday, the president gathered state legislators from Michigan at the White House to pressure them to either send a slate of his electors to the Electoral College or not certify the election results at all.
The legislators appeared to deny that they would go against the will of their people because of baseless claims of fraud.
“We have not yet been made aware of any information that would change the outcome of the election in Michigan and, as legislative leaders, we will follow the law and follow the normal process regarding Michigan’s electors, just as we have said throughout this election,” they said in a statement.
Republicans Urge Trump to Start Transition
While some of Trump’s allies have continued to support the president’s tactic and spread his baseless claims and conspiracy theories about election fraud, other top Republicans lawmakers have been encouraging Trump to start the transition process.
On Saturday a federal judge in Pennsylvania rejected yet another lawsuit brought by the Trump campaign, effectively ending the president’s only attempt to challenge statewide results. After that ruling, Sen. Pat Toomey (R-Pa.) called on Trump to accept that he had lost and start the transition process.
“With today’s decision by Judge Matthew Brann, a longtime conservative Republican whom I know to be a fair and unbiased jurist, to dismiss the Trump campaign’s lawsuit, President Trump has exhausted all plausible legal options to challenge the result of the presidential race in Pennsylvania,” Toomey said in a statement, before going on to note that Trump’s loss in his follows “a series of procedural losses for President Trump’s campaign.”
On Sunday, Senators Kevin Cramer (R-Nd.) and Lisa Murkowski (R-Ak.) also followed suit.
“President Trump has had the opportunity to litigate his claims, and the courts have thus far found them without merit,” Murkowski said. “A pressure campaign on state legislators to influence the electoral outcome is not only unprecedented but inconsistent with our democratic process. It is time to begin the full and formal transition process.”
Those remarks were also echoed by Christie, who, despite being removed from Trump’s 2016 transition team, has maintained a close relationship with the president and his staff. While speaking to ABC News Sunday, the former governor called the conduct of Trump’s legal team “a national embarrassment.”
“Listen, I have been a supporter of the President’s. I voted for him twice, but elections have consequences, and we cannot continue to act as if something happened here that didn’t happen,” he said.
“If you are unwilling to come forward and present the evidence, it must mean the evidence doesn’t exist,” Christie continued. “The country is what has to matter the most. As much as I’m a strong Republican and I love my party, it’s the country that has to come first.”
See what others are saying: (The Associated Press) (NPR) (The New York Times)
Federal Judge Orders the Trump Administration to Stop Expelling Unaccompanied Migrant Children
- On Wednesday, U.S. District Court Judge Emmet Sullivan ordered the Trump administration to end its practice of expelling unaccompanied migrant children at the southern border.
- That practice was part of a larger policy blocking all southern-border migrants from claiming asylum and entering the United States in the midst of the COVID-19 pandemic.
- The expulsion of single adults and families are not affected by this order, but Sullivan did seem to express a willingness to cast aside that aspect of the policy, as well.
- The Trump administration has indicated that it will appeal Sullivan’s decision, but for now, his ruling remains in effect.
Trump Admin. Adopts “Public Health” Expulsion Policy
A federal judge on Wednesday ruled that the Trump administration cannot turn away unaccompanied migrant children seeking asylum at the United States southern border.
The practice has been employed by the administration since March, the same time much of the United States first began going into coronavirus lockdowns. In fact, this practice is part of a larger policy the administration adopted after the Centers for Disease Control and Prevention issued an emergency order related to the coronavirus on March 20.
That order, signed by CDC Director Robert Redfield, stated that the U.S. government is allowed to temporarily block noncitizens from entering the US “when doing so is required in the interest of public health.”
Chad Wolf, the acting Homeland Security secretary, then announced three new measures he cited as necessary through the CDC’s order.
First, the U.S. would begin sending anyone who illegally crossed the border back to their home countries without the ability to claim asylum. Second, the country would suspend processing undocumented migrants at legal ports of entry. Third, it would close the legal entry points along the Mexican and Canadian borders to tourism.
From March through the end of September, the administration used that policy to turn away nearly 200,000 migrants. That includes more than 13,000 children who were traveling alone, according to the American Civil Liberties Union, one of four organizations that brought a lawsuit against the administration.
Judge Pauses “Public Health” Expulsions
District Judge Emmet Sullivan’s Wednesday decision was largely a win for the ACLU and immigrant rights groups.
In his ruling, Sullivan said while the CDC’s emergency order does allow the Trump administration to prohibit noncitizens from entering the country, that doesn’t then give the administration the legal standing to expel migrant children.
Under existing U.S. law, unaccompanied migrant children must be treated differently than adults or even families. In fact, they’re given special protections that require them to be placed in shelters and provided an opportunity to voice their asylum claims.
Sullivan’s ruling only applies to unaccompanied children. The Trump administration will still be able to turn away adults and families by citing COVID concerns outlined in the CDC’s order.
Nonetheless, Sullivan did seem to question the legality of the administration’s policy in full. While he said that the administration had been granted “extraordinary” authority by the CDC, he also said that authority is still “distinguishable” from the claim that it gives the administration full rights to turn away migrants.
Immigration Advocate Cheer, Trump Admin. Appeals
“Today’s ruling is a critical step in halting the Trump administration’s unprecedented and illegal attempt to expel children under the thin guise of public health,” ACLU Lawyer Lee Gelernt said of Sullivan’s decision in a statement on Wednesday.
Karla Marisol Vargas, a lawyer for the Texas Civil Rights Project, which was also represented in the suit, commended the ruling in a similar statement, noting that the case could carry over into a Biden administration.
“The Trump administration cannot weaponize a pandemic to destroy long-established protections for children with a shadow system of zero accountability,” she said. “We will continue to keep this administration and the next, in check.”
For their part, other immigrant advocates have argued that the U.S. has the ability to safely give protection to vulnerable immigrants while also addressing public health concerns. For example, the shelters unaccompanied migrant children will now go to are capable of adopting social distancing guidelines. Likewise, the number of migrants in border facilities has fallen dramatically since spring of last year.
Late Wednesday night, the Trump administration signaled that it would appeal Sullivan’s ruling, according to AZ Central.
Following that decision, Homeland Security spokesperson Chase Jennings painted Sullivan as an “activist judge.”
“[Sullivan] has demanded that illegal aliens be introduced into the United States in the tens of thousands, spread across the country on planes and busses, and cause the overflow of community hospitals, particularly at the border,” Jennings said.
Immigration advocates have argued that the Trump administration’s policy actually put Border Patrol agents more at risk because, under the policy, those agents needed to make arrangements so that migrant children would be able to fly back to their home countries.
Still, top border officials have argued that because of the pandemic, public health law needs to be prioritized over immigration laws.
For now, however, they must abide by Sullivan’s ruling. While the Justice Department did ask for Sullivan to stay the order pending an appeal, that request has been denied.