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In a Win for Trump, SCOTUS Tosses Challenge to President’s Plan to Exclude Undocumented Immigrants From Census

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  • In a 6-3 decision, SCOTUS threw out a case on Friday that attempted to block an order from President Trump that would prevent noncitizens from being counted in the census for the first time in American history.
  • The court’s conservative majority said that it was too soon to see a ruling on the question. The three liberal justices dissented, arguing that the policy clearly violated federal law and centuries of legal precedent, thus was ripe for review.
  • If enacted, Trump’s order would exclude millions of people from the once-a-decade count that determines how congressional seats are apportioned and how billions of federal dollars are allocated.
  • While the decision marks a temporary win for the Trump administration, the practical effects are unclear as the Census Bureau has said it will not be able to deliver the totals to Trump before he leaves office.

SCOTUS Gives Trump a Win

The Supreme Court on Friday dismissed a challenge to President Donald Trump’s efforts to exclude undocumented immigrants from the 2020 census count, resulting in a temporary win for the administraiton.

The case stems from a memorandum Trump signed in July directing the Census Bureau to send him two sets of numbers from the once-a-decade population count that is used to allocate congressional seats and billions of dollars in federal funding.

Under the memo, the first set of numbers would count the total amount of people in every state, and the second would leave out all undocumented immigrants. The administration has reasoned that the full, traditional count could give states with large noncitizen populations more representation than they deserved.

Twenty-three states and several immigrant rights organizations immediately challenged the decision in separate cases, arguing that it violated the Constitution, federal law, or both. This illegal action, they said, would lead to a less accurate census count, thus causing some states to lose representation.

Three lower courts sided with the challengers and blocked Trump’s policy, but a fourth said it was not the right time to consider the case. The administration appealed the earlier rulings to the Supreme Court, which agreed to hear the case last month.

The Supreme Court’s most recent decision appears to fall in line with the fourth court’s assessment. In a 6-3 ruling, the highest court’s conservative majority stated that it was premature to decide the question at this juncture.

“At present, this case is riddled with contingencies and speculation that impede judicial review,” the justices said in an unsigned opinion. “We express no view on the merits of the constitutional and related statutory claims presented. We hold only that they are not suitable for adjudication at this time.”

In a dissent written by Justice Stephen Breyer and joined by Justices Sonia Sotomayor and Elena Kagan, the three liberals argued that Trump’s memo clearly violated federal statutes, widely accepted Constitutional interpretations, and historical precedent. They argued the court should be able to make a decision now.

Under the Constitution, congressional seats are to be apportioned using census data “counting the whole number of persons in each state.” The census has always included both citizens and noncitizens. Never has a president claimed the authority to exclude the latter.

If Trump is allowed to fulfill his unprecedented request, it would mark the first time in American history that noncitizens were left out of the count since the first census in 1790.

Practical Implications

The consequences of such a decision would be jarring. Neither the Trump administration nor its lawyers disputes the fact that removing undocumented populations from the census totals would shift representation and federal funds to states where the population tends to be older, whiter and typically Republican.

Numerous reports and studies have found that excluding the undocumented immigrant population from census totals would lead to millions being left out of the population totals used for reapportionment.

According to a Pew Research Center study published over summer, if noncitizen immigrants were excluded from apportionment, California, Texas, and Florida would each lose one seat in Congress. Meanwhile, Minnesota and Ohio — as well as Alabama, which is otherwise projected to lose a seat — would each gain one additional representative.

Despite the startling possible implications, it is currently unclear how much of a practical effect the high court’s decision will have. Technically speaking, the ruling does give Trump the ability to continue pursuing his efforts to exclude noncitizens, but the temporary victory may be limited.

By law, the Census Bureau is required to give the census data to the president by Dec. 31, but the agency has publicly said that it will not be able to reach the deadline this year because it has yet to resolve data errors and irregularities. The bureau got a late start this year because of delays in collecting in-person census data due to the pandemic.

As a result, the agency extended door-to-door efforts to the end of October instead of the initial date which was set for July, and asked the Trump administration to extend the December data delivery deadline until April 2021. 

Trump initially agreed, but in August, the administration abruptly reversed course and ordered the in-count to be cut short a month so that the Dec. 31 deadline could be met despite warnings from top bureau officials that the move would drastically skew the data and potentially leave many uncounted.

At the time, many experts said it was clear the administration had made the decision because in an attempt to ensure Trump would still be able to enforce his memo even if lost the election and was forced to leave office on Jan. 20.

It appears as though that plan may fail anyway. While the Census Bureau has not yet said when it expects it will deliver the final numbers to the president, documents released by the House Oversight Committee earlier this month cited sources that said the agency would not be able to deliver the data until Jan. 23, three days after President-elect Joe Biden is inaugurated.

Even if Trump is able to get his hands on the numbers before then, he will almost certainly face another barrage of legal challenges.

“This Supreme Court decision is only about timing, not the merits,” Dale Ho, the American Civil Liberties Union lawyer who represented some of the challengers, said in a statement. “If this policy is ever actually implemented, we’ll be right back in court challenging it.”

See what others are saying: (The Washington Post) (The New York Times) (Politico)

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Feds Investigate Classified Files Found in Biden’s Former Office

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The documents reportedly include U.S. intelligence memos and briefing materials that covered topics such as Ukraine, Iran, and the United Kingdom


What Was in the Files?

President Biden’s legal team discovered about 10 classified files in his former office at the Penn Biden Center for Diplomacy and Global Engagement in Washington D.C., the White House revealed Monday.

The Department of Justice has concluded an initial inquiry into the matter and will determine whether to open a criminal investigation.

According to a source familiar with the matter who spoke to CNN, they include U.S. intelligence memos and briefing materials that covered topics such as Ukraine, Iran, and the United Kingdom.

A source also told CBS News the batch did not contain nuclear secrets and had been contained in a folder in a box with other unclassified papers.

The documents are reportedly from Biden’s time as vice president, but it remains unclear what level of classification they are and how they ended up in his office.

Biden kept an office in the. Penn Biden Center, a think tank about a mile from the White House, between 2017 and 2020, when he was elected president.

On Nov. 2, his lawyers claim, they discovered the documents as they were clearing out the space to vacate it.

They immediately notified the National Archives, which retrieved the files the next morning, according to the White House.

What Happens Next?

Attorney General Merrick Garland must decide whether to open a criminal investigation into Biden’s alleged mishandling of the documents. To that end, he appointed John Lausch Jr., the U.S. attorney in Chicago and a Trump appointee, to conduct an initial inquiry.

Garland reportedly picked him for the role despite him being in a different jurisdiction to avoid appearing partial.

Lausch has reportedly finished the initial part of his inquiry and provided a preliminary report to Garland.

If a criminal investigation is opened, Garland will likely appoint an independent special counsel to lead it.

The case mirrors a similar DoJ special counsel investigation into former President Donald Trump’s alleged mishandling of classified materials and obstruction of efforts to properly retrieve them.

On Nov. 18, Garland appointed Jack Smith to investigate over 300 classified documents found at Trump’s Florida residence, Mar-a-Lago.

Trump resisted multiple National Archives requests for the documents for months leading up to the FBI’s raid on his property, then handed over 15 boxes of files only for even more to be found still at Mar-a-Lago.

“When is the FBI going to raid the many houses of Joe Biden, perhaps even the White House?” Trump wrote on Truth Social Monday. “These documents were definitely not declassified.”

Rep. James Comer (R-KY), the new chairman of the House Oversight Committee, told reporters he will investigate the Biden files.

Republicans have been quick to pounce on the news and compare it to Trump’s classified files, but Democrats have pointed out differences in the small number of documents and Biden’s willingness to cooperate with the National Archives.

The White House has yet to explain why, if the files were first discovered six days before the midterm elections, the White House waited two months to reveal the news to the public.

See what others are saying: (CNN) (The New York Times) (BBC)

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Lawmakers Propose Bill to Protect Fertility Treatments Amid Post-Roe Threats

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The move comes as a number of states are considering anti-abortion bills that could threaten or ban fertility treatments by redefining embryos or fetuses as “unborn human beings” without exceptions for IVF.


The Right To Build Families Act of 2022

A group of Democratic lawmakers introduced a bill Thursday that would codify the right to use assisted reproductive technologies like in-vitro fertility (IVF) treatments into federal law.

The legislation, dubbed the Right To Build Families Act of 2022, was brought forward by Sens. Tammy Duckworth (D-Il) and Patty Murray (D-Wa.) alongside Rep. Susan Wild (D- Pa.). The measure would bar any limits on seeking or receiving IVF treatments and prohibit regulations on a person’s ability to retain their “reproductive genetic materials.” 

The bill would also protect physicians who provide these reproductive services and allow the Justice Department to take civil action against any states that try to limit access to fertility treatments.

The lawmakers argue it is necessary to protect IVF because a number of states have been discussing and proposing legislation that could jeopardize or even ban access to the treatments in the wake of the Roe v. Wade reversal. 

“IVF advocates in this country today are publicly telling us, ‘We need this kind of legislation to be able to protect this,’” Murray told HuffPost. “And here we are after the Dobbs decision where states are enacting laws and we have [anti-abortion] advocates who are now starting to talk, especially behind closed doors, about stopping the right for women and men to have IVF procedures done.”

Fertility Treatments Under Treat

The state-level efforts in question are being proposed by Republican lawmakers who wish to further limit abortions by redefining when life begins. Some of the proposals would define embryos or fetuses as “unborn human beings” without exceptions for those that are created through IVF, where an egg is fertilized by a sperm outside the body and then implanted in a uterus.

For example, a bill has already been pre-filed in Virginia for the 2023 legislative session that explicitly says life begins at fertilization and does not have any specific language that exempts embryos made through IVF.

Experts say these kinds of laws are concerning for a number of reasons. In the IVF process, it is typical to fertilize multiple eggs, but some are discarded. If a person becomes pregnant and does not want to keep the rest of their eggs. It is also normal that not all fertilized eggs will be viable, so physicians will get rid of those.

Sometimes doctors will also implant multiple fertilized eggs to increase the likelihood of pregnancy, but that can result in multiple eggs being fertilized. In order to prevent having multiple babies at once and improve the chance of a healthy pregnancy, people can get a fetal reduction and lower the number of fetuses.

All of those actions could become illegal under proposals that do not provide exemptions. 

“In my case, I had five fertilized eggs, and we discarded three because they were not viable. That is now potentially manslaughter in some of these states,” said Duckworth, who had both of her daughters using IVF.

“I also have a fertilized egg that’s frozen. My husband and I haven’t decided what we will do with it, but the head of the Texas Right to Life organization that wrote the bounty law for Texas has come out and specifically said he’s going after IVF next, and he wants control of the embryos,” Duckworth added.

In a hearing after Roe was overturned, Murray also raised concerns about “whether parents and providers could be punished if an embryo doesn’t survive being thawed for implantation, or for disposing unused embryos.”

Experts have said that even if anti-abortion laws defining when life begins do provide exceptions, it would be contradictory and confusing, so providers would likely err on the side of caution and not provide services out of fear of prosecution.

“[Abortion bans] are forcing women to stay pregnant against their will and are, at the very same time, threatening Americans’ ability to build a family through services like IVF,” Murray said in a statement to Axios. “It’s hard to comprehend, and it’s just plain wrong.”

The federal legislation to combat these efforts faces an uphill battle. It is unlikely it will be passed in the last few days of lame duck session, and with control of Congress being handed to Republicans come January, movement in the lower chamber will be hard fought.

Duckworth, however, told Axios that she will keep introducing the legislation “until we can get it passed.” 

See what others are saying: (Axios) (HuffPost) (USA Today)

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Hundreds of Oath Keepers Claim to Be Current or Former DHS Employees

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The revelation came just weeks after the militia’s founder, Stewart Rhodes, was convicted on seditious conspiracy charges for his involvement in the Jan. 6 insurrection.


An Agency Crawling With Extremists

Over 300 members of the far-right Oath Keepers militia group claim to be current or former employees at the Department of Homeland Security, the Project on Government Oversight (POGO) reported Monday.

The review appears to be the first significant public examination of the group’s leaked membership list to focus on the DHS.

The agencies implicated include Border Patrol, Coast Guard, Immigration and Customs Enforcement, and the Secret Service.

“I am currently a 20 year Special Agent with the United States Secret Service. I have been on President Clinton and President Bush’s protective detail. I was a member and instructor on the Presidential Protective Division’s Counter Assault Team (CAT),” one person on the list wrote.

POGO stated that the details he provided the Oath Keepers match those he made in a sworn affidavit filed in federal court.

The finding came just weeks after Oath Keepers founder Stewart Rhodes was convicted on seditious conspiracy charges for his involvement in the Jan. 6 insurrection.

“Law enforcement agents who have associations with groups that seek to undermine democratic governance pose a heightened threat because they can compromise probes, misdirecting investigations or leaking confidential investigative information to those groups,” POGO said in its report.

In March, the DHS published an internal study finding that “the Department has significant gaps that have impeded its ability to comprehensively prevent, detect, and respond to potential threats related to domestic violent extremism within DHS.”

Some experts have suggested the DHS may be especially prone to extremist sentiments because of its role in policing immigration. In 2016, the ICE union officially endorsed then-candidate Donald Trump for president, making the first such endorsement in the agency’s history.

The U.S. Government has a White Supremacy Problem

Copious academic research and news reports have shown that far-right extremists have infiltrated local, state, and federal law enforcement agencies.

In May, a Reuters investigation found at least 15 self-identified law enforcement trainers and dozens of retired instructors listed in a database of Oath Keepers.

In 2019, Reveal from The Center for Investigative Reporting found that almost 400 current or former law enforcement officials belonged to Confederate, anti-Islam, misogynistic or anti-government militia Facebook groups.

The Pentagon has long struggled with its own extremism problem, which appears to have particularly festered in the wake of the U.S. invasions of Iraq and Afghanistan.

Nearly one in four active-duty service members said in a 2017 Military Times poll that they had observed white nationalism among the troops, and over 40% of non-white service members said the same.

The prevalence of racism in the armed forces is not surprising given that many of the top figures among right-wing extremist groups hailed from the military and those same groups are known to deliberately target disgruntled, returning veterans for recruitment.

Brandon Russell, the founder of the neo-Nazi group AtomWaffen, served in the military, as did George Lincoln Rockwell, commander of the American Nazi Party, Louis Beam, leader of the KKK, and Richard Butler, founder of the Aryan Nation.

In January, NPR reported that one in five people charged in federal or D.C. courts for their involvement in the Capitol insurrection were current or former military service members.

See what others are saying: (Project on Government Oversight) (Business Insider)

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