Keep an eye on the events out of Israel. It seems possible they’re reaching some kind of turning point, though one hesitates to use that phrase about a country which has been in such an extended political paralysis for so long. The key to understand is that whatever crisis or shift may be in the works isn’t driven by the issues animating coverage in the U.S. To the extent it is tied to the Israel-Hamas war it is about the hostages and the widespread belief that the Netanyahu government isn’t that focused on striking a deal to get them home. Hovering around this is the fact that the government has at best tended to ignore and shun the hostages families. The communities along the border with Gaza tend to be made up of left-leaning Kibbutznik types. So they’re not Netanyahu’s people by any stretch of the imagination. That’s been a subtext to much that has happened over the last six months.
You also have the anti-judicial coup coalition which was holding massive weekly protests for almost a year before October 7th going back to the streets. All of that had stopped cold on October 7th. It’s been slowing reassembling since. But the protests this weekend are bigger than any since just before the massacres in southern Israel. They are now a coupled message for the government to resign and to bring the hostages home.
SpaceX, for example, says that the NLRB is engaging in “an unlawful attempt … to subject Space X to an administrative proceeding whose structure violates Article II, the Fifth Amendment, and the Seventh Amendment of the Constitution of the United States.”
As a law professor who researches labor law and constitutional law and a former labor organizer, I am deeply concerned, but not surprised, by these attacks on the federal agency that has protected U.S. workers’ right to organize unions and bargain collectively with their employers since the 1930s.
These corporations seem to believe they will find a sympathetic audience before the conservative justices that occupy six of the Supreme Court’s nine seats. In a series of prior cases, the conservative justices have already weakened administrative agencies and cut back on workers’ rights.
Workers at the companies that are challenging the NLRB’s constitutionality have all begun to organize unions in recent years, with numerous, high-profile, union-organizing wins. Workers across numerous sectors, including auto, education, health care and Hollywood, have recently held successful strikes.
From the 1890s to the 1930s, during what is known as the “Lochner era,” corporations argued that laws protecting workers’ rights, including the right to organize unions or be paid a minimum wage, violated their “freedom to contract” and exceeded Congress’ power under the Constitution.
Back then, the Supreme Court routinely sided with business.
Six of the the Supreme Court’s nine members are conservatives, leading to many pro-business rulings. Alex Wong/Getty Images
Letting agencies make decisions
Now, nearly 100 years later, the NLRB’s foes contend that the labor board violates the separation of powers — the constitutional principle that the judicial, legislative and executive branches of government have distinct powers — because it mixes executive and judicial functions.
No provision of the Constitution prohibits Congress from designing government agencies in this way. And Congress believed that these design choices would help the agency function well.
For example, by prohibiting presidents from replacing all of the NLRB’s administrative law judges for any reason or no reason at all, Congress sought to ensure independence of those judges.
Having each violation of law litigated before a federal jury, rather than administrative law judges deciding cases, could take a lot longer to resolve cases.
Assessing what’s at stake
If these corporations prevail with their constitutional challenges, the NLRB will no longer be able to function.
Currently, it can be very difficult for workers to organize unions, partly because of insufficient penalties and protections in labor law. But if the corporations win, there will no longer be an agency in place to safeguard workers’ rights to organize unions and to negotiate fair contracts with their employers.
Indeed, this threat goes beyond labor rights.
If the NLRB is found to violate the Constitution, other government agencies could be at risk as well, including the Securities and Exchange Commission, the Federal Election Commission and the Federal Trade Commission. In my view, that would endanger investors, voters and consumers — all Americans.
There is reason to believe the Supreme Court could side with big business if a lawsuit challenging the board’s constitutionality reaches it.
The conservative justices have also indicated that they may limit the powers of administrative agencies beyond the NLRB. Most notably, the conservative majority on the court recently crafted a rule known as the “major questions” doctrine, which says Congress must set particularly clear rules when it authorizes agencies to regulate on matters of political or economic significance.
There is no way to know for certain how the Supreme Court will rule on a case concerning the constitutionality of the NLRB or other federal agencies. There may not be enough votes to overturn years of well-established precedent, even among the conservative justices.
Workers are organizing in greater numbers than they have in decades. History teaches that when there is sufficient popular support for unions and workers’ rights, and sufficient mobilization among workers, the Supreme Court sometimes backs off and corporations give up their fight against workers’ rights.
If it wasn’t my job to know the working details of the simmering apocalypse we call American politics, some of the headlines this week might’ve made me think I was back in 2020.
We had Donald Trump quite literally reviving his old “Stop the Steal” mantra as he labeled every attempt at holding him legally accountable for his actions “election interference,” which is really more vintage 2017 than 2020.
We had the RNC scoring some legal wins as part of the party’s ongoing war on mail-in voting (coincidentally while also trying very hard to make sure Republican voters actually participate in vote-by-mail and other early voting practices).
We took a look at the ongoing cycle of delegitimization of our country’s election systems that 2020-era MAGA attacks on democracy created.
We had Alex Jones and Michael Flynn in the news as the originators of more conspiracy theories in the wake of a tragedy. Peak Groundhog Day stuff.
But what TPM has on tap for your this weekend has plenty of fresh 2024 flair:
Below, Kate Riga digs in on Supreme Court oral arguments in the mifepristone case, which saw conservative justices resurrect the long-dormant, 19th Century Comstock Act as a better way to restrict abortion than what the right-wing litigants before them had attempted.
Josh Kovensky writes on John Eastman’s disbarment as one of the few tangible forms of coup accountability we might see before Election Day, and where the disgraced lawyer may be headed next.
Khaya Himmelman reports on the tabulation center-turned-“encampment” in Maricopa County, Arizona and how it helps us grasp just how grim things are looking for election workers heading into the general election this fall.
Let’s dig in.
— Nicole Lafond
Congressional Democrats Flirt With Heading Off Supreme Court On Mifepristone
Justices Clarence Thomas and Samuel Alito laid the groundwork to a future challenge to abortion drug mifepristone, couched in Tuesday’s arguments over the Food and Drug Administration’s handling of the drug.
That original case was clearly dead in the water, its legal standing too dubious for even most of the bench’s right wing to swallow. So Alito and Thomas started signaling to anti-abortion litigants that if they wanted to bring another case — challenging the legality of mailing mifepristone under the Comstock Act, a 19th century anti-vice law — they’d be amenable.
A couple Democrats sounded the alarm about the law, long dormant, but technically still on the books. Anti-abortion activists have been increasingly eager to use it to prevent mifepristone from being mailed, a dynamic which is currently making it impossible to ban abortion completely, even in red states where it’s virtually illegal.
Rep. Cori Bush (D-MO) was the first to call for repealing the law after oral arguments.
“The Comstock Act must be repealed. Enacted in 1873, it is a zombie statute, a dead law that the far-right is trying to reanimate,” she tweeted. “The anti-abortion movement wants to weaponize the Comstock Act as a quick route to a nationwide medication abortion ban. Not on our watch.”
Sen. Tina Smith (D-MN) is also considering legislation to “overhaul the statute,” per Axios.
Realistically, this is not going to happen while Republicans control the House. But it adds yet higher stakes to the 2024 election (as if it needs them). It’s unlikely that a challenge under the Comstock Act would get to the Supreme Court before then, if it came up through the usual route. If Democrats could snatch a trifecta, they could head off the brewing anti-abortion attack.
— Kate Riga
A Grim State of Affairs
It’s a grim moment for election workers across the country.
But, in Maricopa County, Arizona specifically, ground zero for 2020 election misinformation and election worker violence, it’s especially dark. In preparation for November, officials in the state’s largest county have renovated the voting infrastructure in response to extensive violence and threats to workers. The county’s tabulation center, said Maricopa County supervisor Bill Gates, now resembles “an encampment” with permanent fencing, barricades, badge requirements to even enter the parking lot of the facility, and metal detectors for entrance into the building.
The measures are critical in order to avoid another what Gates describes as a “Lollapalooza for the Alt-right.”
In addition to physical safety precautions, Maricopa County Recorder Stephen Richer has also been at the forefront of an effort to get as much accurate information as possible to voters. He’s been hosting “Ask Me Anything” sessions on Facebook Live and X Spaces, formerly known as Twitter Spaces, as well giving voters tours of the county’s central election procession centers.
It’s not surprising that election officials are still reeling from 2020, where conspiracy theories fueled by Donal Trump triggered a barrage of violence to workers. Just earlier this week Trump revived his “Stop the Steal” mantra in a Truth Social post, highlighting how a delegitimization cycle that originated in 2020 continues to play out in real time.
The more Trump continues to use his “Stop the Steal” slogan to baselessly claim voter fraud, the greater the risk of violence to election workers, which is why in Maricopa County, a hotbed of election denialism, is preparing for another torrent of violence and threats.
People like Trump do not need to wait for a normal election clerical error as a basis for starting voter fraud rumors. He’ll do it either way. And as Justin Levitt, a professor of law at Loyola Law School, pointed out, the delegitimization of elections is extremely lucrative – especially for Trump, who raised $30 million for his Save America PAC entirely on frivolous election fraud suits.
— Khaya Himmelman
When All Else Fails
Disbarment is the way. At least, that’s the case for John Eastman, one of the men who gave a sheen of legal grounding to Trump’s 2020 coup attempt.
A California bar court judge recommended that Eastman be disbarred this week over his efforts to advise Trump, and over his false claims of voter fraud to a federal judge. He’ll appeal, likely dragging the process out for months. But it represents the high water mark for accountability over Eastman’s role in the effort to reverse Trump’s 2020 loss.
It’s not to say there haven’t been other consequences. He’s charged in the Fulton County RICO case, and was listed as an unindicted co-conspirator in Jack Smith’s Jan. 6 D.C. indictment. He retired from Chapman University Law School after an outcry from faculty and trustee board members over his activities.
But with law receding from the universe of Eastman’s potential employment options, only one place will still take him: the Claremont Institute. Eastman is a senior fellow there, and is listed as a founding director of the group’s Center for Constitutional Jurisprudence. As I’ve written in recent weeks, Claremont sees the country as beset by a cold civil war, and is preparing for what forms of government may come next. In that regard, Eastman does have experience.
We are still in the running to hit 700 new TPM Members by the end of today. We’re currently at 644. 56 more of you on a Friday afternoon is a tall order. But it’s possible. Please listen to this: If you’ve been considering joining during our drive, please choose to do it today, right now. It will take just a couple minutes tops. Click right here and let’s see if we can do this together.
Late Update: We might actually get there! 668!
Later Update: 11:56 PM on the east. But we’re at 680 and there’s still time out West. In range! Become part of our club!
Even Later Update: 687! Saturday is the new Friday! 700 is within reach!
Let me add a brief follow-up to my post from last night which seems to have resonated with people. I’ll say it again: I don’t think this is going to happen. But this isn’t just a caveat or covering myself if it doesn’t. It’s kind of why I did the post. In life and political analysis (and so many other things) we’re constantly having to be on the look out for new data which challenges our assumptions about what’s happening. In this case, the data points I mentioned definitely challenge my assumptions about what’s happening. And I’m still sticking with my assumptions! But those data points are high volume enough, not random little edge case things, that it’s at least worth me clearing my throat and telling myself I’m seeing a bunch of things that don’t square with my assumptions, sort of a punditing note to file if you will.
As I said, I’m sticking with my assumptions. But keep it in the back of your head, or write your own note to file.
If You Can’t Beat Biden, Run Against Obama Instead?
A lot has been made of Donald Trump’s string of gaffes in which he either confuses Barack Obama for Joe Biden, asserts Obama is still president, or claims he beat Obama (they never ran against each other). The gaffes are so frequent that Trump issued a lame “explanation” for it last fall, claiming that in fact it was on purpose.
A sign of cognitive decline? Perhaps.
But it’s hard not to get the sense that there is a certain kind of truth in the gaffes. Whatever Biden’s weaknesses as a candidate, he has all the privileges and immunities of being an old white guy. He can’t be vilified by Republicans in quite the same way as Obama or Hillary Clinton. It’s got to hurt to have your ready-made racist and misogynistic attacks sitting unused in your rhetorical armory.
I’m not saying that Republicans are going to spend the next seven months pretending that Barack Obama is president so that they can stoke the darkest MAGA impulses and unleash their full fury at Democrats. Nope, not saying that at all:
Flanked by American flag home decor, Rep. Marjorie Taylor Greene (R-GA) covered a lot of weird ground in that interview with former Trump adviser Steve Bannon – but Biden as Obama’s puppet is a marvelous bit of misdirection. It’s almost as if having given away immigration as their centerpiece issue by killing the immigration bill they actually liked, MAGA Republicans are casting about for a new organizing theme for their vitriol. Blame the Black guy must feel so comfortable and familiar.
Now, both can be true: Trump is slipping, getting easily confused about who is president and Trump and his minions are operating in a mental space where it’s easy to slip into attacking the Black guy because it fits with all their priors.
A Big Thanks!
For all the Morning Memo readers who have taken the plunge and become TPM members during our annual membership drive, welcome to the community!
We’re a small network of like-minded folks with a certain sensibility and outlook. While our operations are anchored in NYC and DC, we’ve always brought an outsider’s perspective to covering politics that comes in part from Josh Marshall and I having each grown up far from the centers of power.
When I think of our audience, I have in mind not just folks on the coasts but those of you in the blue dots scattered in red states, in university towns, state capitals, and places where you may feel a bit isolated and alone. In addition to supporting our journalism, the TPM community offers the reassurance that there are others out there just like you.
If you haven’t joined yet, please take a moment before the week ends to sign up. It’s quick and easy. We’re making good progress toward our goal of 1,000 new members in this drive. I appreciate any help you can give in getting us there. Thanks again!
Trump Goes After Trial Judge’s Daughter By Name
Donald Trump ramped up his attacks on the daughter of the trial judge in his hush-money case, calling her out by name in a post on his Truth Social platform. The gag order state Judge Juan Merchan imposed this week does not include restrictions on attacking him or his family, and Trump is taking full advantage of the carveout.
This is, of course, only the latest in a months’ long series of Trump attacks on judges, court workers, prosecutors, witnesses, and others, with full awareness of the risk of inciting further threats and potential violence.
It led to an extraordinary move last night by senior U.S. District Judge Reggie Walton, who sits in DC and has heard some of the Jan. 6 rioter cases to go on CNN and decry Trump’s attacks. I can’t remember anything like this ever happening before. It is beyond unusual:
Senior Judge Reggie Walton: “We do these jobs because we’re committed to the rule of law & we believe in the rule of law & the rule of law can only function effectively when we have judges who are prepared to carry out their duties without the threat of potential physical harm.” pic.twitter.com/V1GC7LVD2g
Rachel Maddow and Chris Hayes discuss the unexpected role that state bar authorities are playing in providing some measure of accountability for the 2020 coup attempt, even as other elements of the legal profession struggle to come to grips with the scale and scope of the threat to democracy:
The Great Voter Fraud Bamboozlement
Once again the party that invented the myth of widespread voter fraud seems to have the hardest time not engaging in voter fraud. This time around it’s the vice chairman of the Georgia Republican Party, who illegally voted nine times while serving probation for felony check forgery.
2024 Ephemera
Biden raises $25 million at NYC campaign event with Presidents Obama and Clinton.
RFK Jr’s veep pick has long denounced IVF as “one of the biggest lies that’s being told about women’s health today.”
Senate Dems Not Covering Themselves In Glory
With Biden nominee Adeel Mangi under sustained Islamophobic attack from Republicans because he would be the first Muslim American appeals court judge, Senate Democrats are not uniting around him en masse but rather letting him twist in the wind.
Sen. Jacky Rosen (D-NV) this week became the third Democratic senator to abandon Mangi, joining Sens. Catherine Cortez Masto (D-NV) and Joe Manchin (D-WV).
Baseball is back. It’s my favorite weekend of the men’s NCAA tourney. Caitlin Clark’s Iowa team plays again Saturday in the women’s tourney. What’s not to love as a sport fan?
And if sports is not your thing, the days are longer and warmer and you know what to do.
In this post I’m going to suggest something that is possible but still unlikely. But it would be a big enough deal that I think it’s worth having in the back of your mind as we move into the 2024 election season. It’s become a cliche that House Republicans are beset by division, dysfunction and general comedy. In a way this has been the story for years and yet, despite the antics, total indifference to doing the actual work of governing and more, they still seem to do okay. And yet, I think there’s some argument that this Congress is in a different category. The entire 118th Congress has been one long-running shutdown drama. Mike Johnson is now effectively running the House with Democratic votes. Then there’s the indicator which is harder to brush off: a non-trivial number of Republican representatives are just quitting. In a couple cases, we’ve seen them quit without even having a new gig lined up. Apparently more may go.
Recognizing that the conspiracy theories Donald Trump pushed in 2020 to anticipate and then fight his election loss mostly suppressed Republican turnout at the polls, the Republican Party has been trying since the midterms to do some shameless about-facing and embrace early voting and vote-by-mail practices. The main thing standing in the way of their 180 has been Donald Trump.
Looking at our numbers now I think there’s a good chance we can get to 700 new members by tomorrow. We’re currently at 587. If we get to 700 that will be almost 3/4 of the way toward our goal. Which is amazing. We know you come here for the news and commentary and insights and exclusives, not our drives. So I want to see if we can make a dash toward the home stretch. If you’ve been thinking about joining us I want to ask if you can make today the day … like right now, take two minutes out of your daily routine and click here and become part of the TPM team. Just like right this moment, click the link and let’s do it. You’ll be really glad you did and it’ll be a shot in the arm of the whole staff. Just click right here.
The Supreme Court’s over five months of inaction on a South Carolina redistricting case has forced a lower court to order that the state’s 2024 elections be conducted with a map that includes a district it found to be racially gerrymandered.
