I’m really disturbed by the Idaho abortion case on multiple levels, especially the total ban reinstatement without regard of EMTALA. The fact they didn’t wait for the Ninth Circuit ruling either does not seem good either. Pro life advocates 🙄
I understand the stay as ensuring legal clarity while the case is underway -- that is, ER docs can definitely not perform abortions. If the injunction were not stayed, there'd be a lot of uncertainty and risk as the docs and legal departments have to try to determine if they can perform an abortion under EMTALA without the benefit of case law or regulation. If they do it, they risk prosecution; if they don't do it, they face the hammer of CMMS. With the stay, they have certainty (and the patient suffers).
I don't agree with the stay any more than I agree with the abortion ban; it's cruel and stupid. But I understand the stay on the basis that the court does value legal clarity.
This is wrong. The injunction has been in place for all but a few days since August 2022. The uncertainty you're discussing is not correct. The legal departments have had this injunction — and been implementing it — since August 2022 (with the exception of a few days that I've written about previously).
This was an absolutely unnecessary move by the Supreme Court, and I think it does suggest how a majority of the court is viewing this case right now. Yes, it could change after briefing and arguments, but this was more than what you're suggesting — and worse for the Biden administration's chances of success. And, as you say, worse for patients needing this care.
The fact that the Supreme Ct is allowing the ban on EMTALA demonstrates how they place the life of a fetus above the life of the pregnant woman. LET HER SUFFER AND DIE. So much for Pro Life. Or being anti govt regulation. They want lots of regulation: regulate who you can love and marry, how you can express your gender preference, what happens with one’s own womb. They want to DOMINATE others. Other’s individual freedoms with their regulations. But protecting “the commons”? ~ clean water, public health, safe schools, background checks for gun sales. Not at all!
I am bothered by there being no public dissent to removing the stay in place in the Idaho abortion case. I remain angered about the fact this is significantly about Dobbs. The majority did this.
The Colorado case is something. Kevin Kruse's recent substack states the reality on the insurrection point. How the Supreme Court handles this remains to be seen. It is a corrupt institution with three Trump appointees and a Trump acolyte as its tainted most long-lasting member. Clarence Thomas should not take part in this case.
Let's be fair: they're all for the supremacy clause when it comes to marijuana. And their intellectual grandfathers loved it when it came to self-freed slaves.
Why are you so insistent on these top level comments, when you're clearly responding to things people have said *in reply to your previous top level comments*? Are you using some kind of weird interface that breaks substack's comment threading? Because if not, it seems like a weirdly large amount of effort to go through to not actually have a discussion in this discussion space.
Mind you, if someone told me that substack's bespoke email-to-blog-post setup was in fact that broken, I'd be disappointed but not surprised.
I’m sure it’s illegal to try to prevent the transfer of power, but I don’t think it’s insurrection. Trump was trying to maintain the status quo, not to overthrow it. Of course he shouldn’t do that, but it’s not ‘insurrection’
First, as to the status quo argument: the status quo is that Congress counts the duly certified electoral votes from the states, with no input from anyone else. To the extent Trump wanted something else to happen, he wasn't in favor of the status quo.
More broadly, "insurrection" is a shorthand. The actual text says that he's unqualified if he has "engaged in insurrection or rebellion against [either 'the Constitution of the United States' or the US itself, depending on your reading of the language], or given aid or comfort to the enemies thereof." How exactly "insurrection or rebellion" and "the enemies of [the Constitution / the US]" are defined is a matter for legal scholars, but at root they involve someone taking hostile action against the functioning of the federal government, most centrally someone who is in principal bound by our laws (citizens and government officials, basically). It's hard to imagine a world where attempting to prevent the lawful selection of the succeeding chief executive is not an action hostile to the functioning of the government. Again, Trump was President, not "temporary King" or even "avatar of the Presidency". If that distinction has any meaning at all, it has to include attempting to hold power beyond his legitimate term, otherwise every rule of how we pick Presidents has a secret caveat of "unless the sitting President says otherwise."
And separately, ducking out of a subthread for no obvious reason isn't a great look.
Look I’m no Trump supporter, and I get the bit about not interfering. I just don’t see how the President could attempt to overthrow himself, and that’s what you need for an insurrection. Maybe that’s why the framers left him out of the list of officers in the prohibition? Anyway it’s a neat way out for SCOTUS.
The argument is he was trying to overthrow the government that was engaged in the process of replacing him. If that government and the president are one and the same, then any president could engage in any action to prevent the peaceful transfer of power, and that can't be right either. It should instead come down to the definition of 'insurrection', and whether Trump's actions crossed that threshold, and, more importantly, who gets to decide that and how they are required to make the decision. But who knows with this supreme court.
While i completely agree with the terrifying nature of this information, I find myself befuddling recently with what may be some inferior education on civics. If at some time, you could take a moment to explain the hierarchy of courts, that would be helpful. I keep hearing about state’s supreme courts, and the fifth circuit and the ninth circuit, etc etc. I don’t understand how these circuit courts fall into the hierarchy and the roles they play vs a states Supreme Court. Thanks for all you do!! Your efforts are appreciated!
A state's supreme court is the final authority on state law. So, for example, if Ohio's supreme court decides that the amendment voters passed to protect reproductive rights doesn't actually forbid abortion bans (in complete defiance of what should be obvious), the only thing Ohio citizens can do is vote out the justices. (And in many states you can't even do that. Every state has its own method of selecting the judges, and only some states elect them. Often you need a different governor and state legislature to change the court and it can take many years depending on the justices' terms.)
The other courts we talk about are federal courts; they rule on federal law. To change or affect a state law, there is supposed to be a federal interest. The source ultimately has to come from a power granted in the U.S. constitution. The Bill of Rights, which has been ruled to apply to the states as well, is one source. Otherwise it's usually a state law, like the Idaho and Texas abortion bans, conflicting with a federal law, like EMTLA. Federal law supersedes state law, but the catches are that: federal law has to be based on powers legitimately given to Congress and the President, and, a federal court can interpret a federal law in a manner different from the executive branch (the administration) enforcing it.
So what happens in practice is that conservatives tend to read federal powers as very limited, and tend to read federal laws as having more limited meaning than a Democratic administration argues. That's what's going on with this abortion case. If there was a Republican administration, the court could do the opposite, and let the federal government override liberal states.
The other thing to do when conservatives want to override a state, local, (or federal), law, is to find a conflict with something in the Bill of Rights. Conservative courts read 'freedom of religion' in the First Amendment very broadly (at least when it's traditional conservative Christianity), and interpret it to immunize all sorts of behavior if it's supposedly motivated by religion. They also reject 'separation of church and state', allowing and in some cases requiring involvement of or funding of religious interests in government, in the name of not 'discriminating' against them. An important feature of Project 2025, the Republicans' plans if they win the election, is to turn a lot more government functions over to 'faith-based' organizations.
The structure of the federal courts is that there are individual federal district judges at the bottom. In some small districts, such as the one covering Amarillo, TX, there is only one federal judge assigned, so conservative groups will file federal lawsuits there, knowing that the very extreme Judge Kacsmaryk will get the case. This is a recent trend, and it's controversial. After a district judge rules, the ruling can be appealed, and the next step up are the circuit courts. There are 12, 11 numbered plus D.C. The eleven are geographical; every federal district is part of one of them. Texas is in the 5th, and Idaho is in the 9th, for example. Depending on when the vacancies open up and who filled them, some circuits have a lot more conservative judges than others. Right now the Fifth is the most conservative of them all, issuing rulings that go much farther than any court has in a long, long time.
Circuit court rulings can be appealed to the supreme court, but in almost all cases the supreme court has discretion as to whether to hear the case at all or to let the circuit ruling stand. It takes four votes from the nine justices to hear a case (the vote is internal and private). Parties to a case can petition the supreme court to hear a case before the circuit court, but that's rare. The supreme court can however grant that request, and that's what's happened in Idaho. The district judge ruled (against the state) and the supreme court agreed to take the case before the Ninth Circuit could rule on it. In theory that could just be expediting the process, because the Fifth Circuit ruled in the opposite direction in a very similar case in Texas, so the likely outcome was a different situation in the states covered by the 5th from the states covered by the 9th, what's known as a 'circuit split'. The supreme court usually takes those cases in the interest of having federal law be uniform across the country. Still, it's considered a bad sign that the supreme court took the case before the Ninth Circuit could take any action. Ultimately we have to wait for them to hear the case in April and issue their ruling by the end of June.
How can Trump be guilty of insurrection against the government? He WAS the government. Interference in process sure, but insurrection? I don’t think so.
Donald Trump was not and never has been the government of the United States. He was for a period of time, including the period in question, an officer of that government, sworn to uphold it without, for example, interfering with the process of terminating his employment.
I’m really disturbed by the Idaho abortion case on multiple levels, especially the total ban reinstatement without regard of EMTALA. The fact they didn’t wait for the Ninth Circuit ruling either does not seem good either. Pro life advocates 🙄
It's definitely not a good sign.
I understand the stay as ensuring legal clarity while the case is underway -- that is, ER docs can definitely not perform abortions. If the injunction were not stayed, there'd be a lot of uncertainty and risk as the docs and legal departments have to try to determine if they can perform an abortion under EMTALA without the benefit of case law or regulation. If they do it, they risk prosecution; if they don't do it, they face the hammer of CMMS. With the stay, they have certainty (and the patient suffers).
I don't agree with the stay any more than I agree with the abortion ban; it's cruel and stupid. But I understand the stay on the basis that the court does value legal clarity.
This is wrong. The injunction has been in place for all but a few days since August 2022. The uncertainty you're discussing is not correct. The legal departments have had this injunction — and been implementing it — since August 2022 (with the exception of a few days that I've written about previously).
This was an absolutely unnecessary move by the Supreme Court, and I think it does suggest how a majority of the court is viewing this case right now. Yes, it could change after briefing and arguments, but this was more than what you're suggesting — and worse for the Biden administration's chances of success. And, as you say, worse for patients needing this care.
This is what they mean by leaving to the States, evidently.
The fact that the Supreme Ct is allowing the ban on EMTALA demonstrates how they place the life of a fetus above the life of the pregnant woman. LET HER SUFFER AND DIE. So much for Pro Life. Or being anti govt regulation. They want lots of regulation: regulate who you can love and marry, how you can express your gender preference, what happens with one’s own womb. They want to DOMINATE others. Other’s individual freedoms with their regulations. But protecting “the commons”? ~ clean water, public health, safe schools, background checks for gun sales. Not at all!
Vote and help others to register to vote in 2024.
I am bothered by there being no public dissent to removing the stay in place in the Idaho abortion case. I remain angered about the fact this is significantly about Dobbs. The majority did this.
The Colorado case is something. Kevin Kruse's recent substack states the reality on the insurrection point. How the Supreme Court handles this remains to be seen. It is a corrupt institution with three Trump appointees and a Trump acolyte as its tainted most long-lasting member. Clarence Thomas should not take part in this case.
This is terrifying. The conservatives have always hated supremacy clause and this is their way of circumventing it.
Let's be fair: they're all for the supremacy clause when it comes to marijuana. And their intellectual grandfathers loved it when it came to self-freed slaves.
This is absolutely crazy.
I’m sorry I obviously don’t know how to use this thing. I just reply to the comments set to me on email.
We shall see….
Why are you so insistent on these top level comments, when you're clearly responding to things people have said *in reply to your previous top level comments*? Are you using some kind of weird interface that breaks substack's comment threading? Because if not, it seems like a weirdly large amount of effort to go through to not actually have a discussion in this discussion space.
Mind you, if someone told me that substack's bespoke email-to-blog-post setup was in fact that broken, I'd be disappointed but not surprised.
I’m sure it’s illegal to try to prevent the transfer of power, but I don’t think it’s insurrection. Trump was trying to maintain the status quo, not to overthrow it. Of course he shouldn’t do that, but it’s not ‘insurrection’
First, as to the status quo argument: the status quo is that Congress counts the duly certified electoral votes from the states, with no input from anyone else. To the extent Trump wanted something else to happen, he wasn't in favor of the status quo.
More broadly, "insurrection" is a shorthand. The actual text says that he's unqualified if he has "engaged in insurrection or rebellion against [either 'the Constitution of the United States' or the US itself, depending on your reading of the language], or given aid or comfort to the enemies thereof." How exactly "insurrection or rebellion" and "the enemies of [the Constitution / the US]" are defined is a matter for legal scholars, but at root they involve someone taking hostile action against the functioning of the federal government, most centrally someone who is in principal bound by our laws (citizens and government officials, basically). It's hard to imagine a world where attempting to prevent the lawful selection of the succeeding chief executive is not an action hostile to the functioning of the government. Again, Trump was President, not "temporary King" or even "avatar of the Presidency". If that distinction has any meaning at all, it has to include attempting to hold power beyond his legitimate term, otherwise every rule of how we pick Presidents has a secret caveat of "unless the sitting President says otherwise."
And separately, ducking out of a subthread for no obvious reason isn't a great look.
Look I’m no Trump supporter, and I get the bit about not interfering. I just don’t see how the President could attempt to overthrow himself, and that’s what you need for an insurrection. Maybe that’s why the framers left him out of the list of officers in the prohibition? Anyway it’s a neat way out for SCOTUS.
The argument is he was trying to overthrow the government that was engaged in the process of replacing him. If that government and the president are one and the same, then any president could engage in any action to prevent the peaceful transfer of power, and that can't be right either. It should instead come down to the definition of 'insurrection', and whether Trump's actions crossed that threshold, and, more importantly, who gets to decide that and how they are required to make the decision. But who knows with this supreme court.
While i completely agree with the terrifying nature of this information, I find myself befuddling recently with what may be some inferior education on civics. If at some time, you could take a moment to explain the hierarchy of courts, that would be helpful. I keep hearing about state’s supreme courts, and the fifth circuit and the ninth circuit, etc etc. I don’t understand how these circuit courts fall into the hierarchy and the roles they play vs a states Supreme Court. Thanks for all you do!! Your efforts are appreciated!
A state's supreme court is the final authority on state law. So, for example, if Ohio's supreme court decides that the amendment voters passed to protect reproductive rights doesn't actually forbid abortion bans (in complete defiance of what should be obvious), the only thing Ohio citizens can do is vote out the justices. (And in many states you can't even do that. Every state has its own method of selecting the judges, and only some states elect them. Often you need a different governor and state legislature to change the court and it can take many years depending on the justices' terms.)
The other courts we talk about are federal courts; they rule on federal law. To change or affect a state law, there is supposed to be a federal interest. The source ultimately has to come from a power granted in the U.S. constitution. The Bill of Rights, which has been ruled to apply to the states as well, is one source. Otherwise it's usually a state law, like the Idaho and Texas abortion bans, conflicting with a federal law, like EMTLA. Federal law supersedes state law, but the catches are that: federal law has to be based on powers legitimately given to Congress and the President, and, a federal court can interpret a federal law in a manner different from the executive branch (the administration) enforcing it.
So what happens in practice is that conservatives tend to read federal powers as very limited, and tend to read federal laws as having more limited meaning than a Democratic administration argues. That's what's going on with this abortion case. If there was a Republican administration, the court could do the opposite, and let the federal government override liberal states.
The other thing to do when conservatives want to override a state, local, (or federal), law, is to find a conflict with something in the Bill of Rights. Conservative courts read 'freedom of religion' in the First Amendment very broadly (at least when it's traditional conservative Christianity), and interpret it to immunize all sorts of behavior if it's supposedly motivated by religion. They also reject 'separation of church and state', allowing and in some cases requiring involvement of or funding of religious interests in government, in the name of not 'discriminating' against them. An important feature of Project 2025, the Republicans' plans if they win the election, is to turn a lot more government functions over to 'faith-based' organizations.
The structure of the federal courts is that there are individual federal district judges at the bottom. In some small districts, such as the one covering Amarillo, TX, there is only one federal judge assigned, so conservative groups will file federal lawsuits there, knowing that the very extreme Judge Kacsmaryk will get the case. This is a recent trend, and it's controversial. After a district judge rules, the ruling can be appealed, and the next step up are the circuit courts. There are 12, 11 numbered plus D.C. The eleven are geographical; every federal district is part of one of them. Texas is in the 5th, and Idaho is in the 9th, for example. Depending on when the vacancies open up and who filled them, some circuits have a lot more conservative judges than others. Right now the Fifth is the most conservative of them all, issuing rulings that go much farther than any court has in a long, long time.
Circuit court rulings can be appealed to the supreme court, but in almost all cases the supreme court has discretion as to whether to hear the case at all or to let the circuit ruling stand. It takes four votes from the nine justices to hear a case (the vote is internal and private). Parties to a case can petition the supreme court to hear a case before the circuit court, but that's rare. The supreme court can however grant that request, and that's what's happened in Idaho. The district judge ruled (against the state) and the supreme court agreed to take the case before the Ninth Circuit could rule on it. In theory that could just be expediting the process, because the Fifth Circuit ruled in the opposite direction in a very similar case in Texas, so the likely outcome was a different situation in the states covered by the 5th from the states covered by the 9th, what's known as a 'circuit split'. The supreme court usually takes those cases in the interest of having federal law be uniform across the country. Still, it's considered a bad sign that the supreme court took the case before the Ninth Circuit could take any action. Ultimately we have to wait for them to hear the case in April and issue their ruling by the end of June.
I hope that's helpful!
Thank you! That is extremely helpful!!! `I appreciate the detailed explanation more than you know.
How can Trump be guilty of insurrection against the government? He WAS the government. Interference in process sure, but insurrection? I don’t think so.
Donald Trump was not and never has been the government of the United States. He was for a period of time, including the period in question, an officer of that government, sworn to uphold it without, for example, interfering with the process of terminating his employment.
Exactly. His camp is just arguing that's not the way it works, and far too many Americans agree with him.