How Much Damage Will SCOTUS Do In COVID Mandates Cases?

INSIDE: Jim Jordan ... Roger Stone ... John Durham

Editor’s Note: After today, Morning Memo will go on hiatus for the holidays. Look for it again beginning Jan. 3, 2022. See you next year!

Buckle The Eff Up!

Late Wednesday, the Supreme Court took the extraordinary step of putting the Biden administration’s COVID mandates on a fast track docket, with oral arguments in early January.

The Supreme Court is considering two separate COVID policies:

  1. The OSHA rule that mandates vaccines for businesses with more than 100 employees; and
  2. The Centers for Medicare & Medicaid Services mandate for vaccines for workers at facilities that receive Medicare and Medicaid funding.
  • The Supreme Court is coming back early from its holiday break to hear oral arguments.
  • There’s some speculation that the court is scheduling oral arguments to blunt recent criticism it’s faced for excessive use of the so-called “shadow docket”:

Both sets of cases had been on what critics call the court’s shadow docket, in which the court decides emergency applications, sometimes on matters of great consequence, without full briefing and argument. The court’s decision to hear arguments on the applications may have been a response to mounting criticism of that practice.

  • The fear is that the court’s 6-3 conservative majority will use the COVID mandates cases to rein in executive power (at least for now, while a Democrat occupies the White House) but do so in ways that will have broader consequences for federalism, First Amendment rights, and other new frontiers in constitutional interpretation. That’s, of course, in addition to exacerbating the pandemic.
  • Background reading, via Dahlia Lithwick and Mark Joseph Stern: “Gorsuch’s Crusade Against Vaccine Mandates Could Topple a Pillar of Public Health

2022 Will Start With A Bang

In addition to Omicron raging across the United States, the first week of January will feature:

  • President Biden marking the first anniversary of the Jan. 6 attack with a public address
  • President Trump celebrating the first anniversary of the Jan. 6 attack with a Mar-a-Lago press conference
  • The Supreme Court’s Jan. 7 special session for the COVID mandates cases

Crisis Of Command

There’s an important new analysis by Just Security of the complicated set of dynamics in play around the delayed decision to deploy the National Guard to the Capitol on Jan. 6.

Ryan Goodman and Justin Hendrix carefully parse news reports and last month’s report from the Pentagon inspector general to firm up a working theory that senior Defense officials were hyper-concerned that President Trump would hijack a military deployment and use it to remain in power.

Close observers of the events of Jan. 6 have mainly posited two reasons for the delay in mobilizing the Guard. The first explanation is one of bureaucratic failures or managerial weaknesses in the military’s procedures that day. A second explanation is that the military was deliberately serving Trump’s effort to interfere with the election by withholding assistance.

We identify a third explanation: that senior military officials constrained the mobilization and deployment of the National Guard to avoid injecting federal troops that could have been re-missioned by the President to advance his attempt to hold onto power.

This doesn’t mean there wasn’t a breakdown in the chain of command, and a threat to the constitutional order. But it’s a very different kind of breakdown from the crisis much of the press coverage has been premised on: The military holding back so the rioters would win.

What Did Jim Jordan Know And When Did He Know It?

The House Jan. 6 committee turns its attention to the contemporaneous Jan. 6 conversations between Rep. Jim Jordan (R-OH) and President Trump. It’s been fun watching Jordan squirm.

Proud Boy Pleads Guilty In Jan. 6 Case

Matthew Greene of Syracuse, New York, is the first self-admitted member of the Proud Boys to plead guilty in a felony conspiracy case stemming from Jan. 6 and agree to cooperate with law enforcement

Jan. 6 Isn’t Over

WaPo: “Inside the nonstop pressure campaign by Trump allies to get election officials to revisit the 2020 vote”


Laurence Tribe et al. try to crank up the pressure on Attorney General Merrick Garland with a NYT op-ed: “Will Donald Trump Get Away With Inciting an Insurrection?”

Renato Mariotti argues: “The Bar for Charging Trump with Obstructing Congress Is Higher Than Many Realize


A bunch of people who fell ill after a conspiracy conference in Dallas earlier this month that featured Mike Flynn, Roger Stone, Mike Lindell and Eric Trump have fittingly conjured up a new conspiracy for their illnesses: It’s wasn’t COVID but anthrax!

Grifters Will Grift

Roger Stone is auctioning off a NFT of a Trump autograph to pay his legal and medical bills.

Remember Him?

The Michael Avenatti profile you’ve been waiting for.

Today In Undercover Ops

AP: “He wore a wire, risked his life to expose who was in the KKK”

NYT: “The F.B.I. Deployed Surveillance Teams Inside Portland Protests”

The Fruit Of Bill Barr’s Poison Tree

Special Counsel John Durham’s “investigate the investigators” fiasco has cost about $3.8 million since October 2020.

90-Day Student Loan Reprieve

President Biden extended the student loan payment moratorium until May 1. It was set to expire Feb. 1.

Ukraine Watch

Vladimir Putin gave his annual presser Thursday morning with lots of belligerent Russian imperialism about why Ukraine isn’t a real country.

To Infinity And Beyond!

The James Webb space telescope is scheduled to launch Christmas Day from French Guiana.

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