Twitter has flagged as “sensitive content” an abortion ad from former Congressman Max Rose. (This means that if you’ve set the check box that you don’t want to see images of crime scenes and beheadings the ad won’t show up for you.) This is the always hotly contested Staten Island seat, currently held by Republican Nicole Malliotakis. The ad is about a woman dying after she was unable to receive an abortion when her life was in danger.
Here’s the video.
Continue reading ““Sensitive Content””Yesterday I noticed the irrepressible Josh Kraushaar’s report on the Senate campaign. He’s one of the most notorious of DC reporters, now predictably working for Axios. He was positively giddy at newly good news for Republicans hoping to retake control of the Senate. But he’s not altogether wrong. Kraushaar focuses on two races — Wisconsin and Pennsylvania. Democrats’ Mandela Barnes is now running behind Ron Johnson and John Fetterman’s once huge margin over Mehmet Oz has shrunk to mid- or low single digits. Kraushaar says Republicans are making gains by switching the discussion to crime. (Generally, he goes with his perennial hobbyhorse: Democrats are too liberal to win elections.) But I don’t think crime politics is precisely it.
Continue reading “Let’s Talk About the Senate”The Conservative Political Action Committee (CPAC) backpedaled this weekend after posting a now-deleted tweet falsely referring to the four Ukrainian regions that Russia illegally annexed as “Ukrainian-occupied territories.”
Continue reading “CPAC Scrambles To Clean Up Deleted Tweet Whitewashing Russia’s Ukraine Annexation”I want to dig in a bit more on our exclusive this morning about the appeal before the 11th Circuit that has dragged on for nearly seven years since oral arguments with no decision from the court.
As I said earlier, it’s not clear WHY this is happening. But I don’t think we have to throw our hands up in the air in helplessness and lament another broken institution without accountability. It’s pretty clear where responsibility for this fiasco lies.
Continue reading “Who’s To Blame?”A lot of things happened. Here are some of the things. This is TPM’s Morning Memo.
It was pretty painful to watch Sen. Rick Scott (R-FL), the National Republican Senatorial Committee chair, respond on Sunday to Trump taking his usual attacks against Senate Minority Leader Mitch McConnell (R-KY) to an even more deranged level by screeching that the GOP leader had a “DEATH WISH” for supposedly backing what the ex-president called “Democrat sponsored [sic]” bills.
Amid the search for survivors after Hurricane Ian tore through Florida, local officials have confirmed that at least 76 people were killed by the Category 4 storm. Hundreds of thousands of homes and businesses still don’t have power.
Sen. Susan Collins (R-ME) told the New York Times that violent threats against lawmakers have gotten so severe, she “wouldn’t be surprised if a senator or House member were killed.”
Far-right Brazilian President Jair Bolsonaro performed way better in his country’s presidential election on Sunday than polls had predicted, and now he and left-wing challenger Luiz Inácio Lula da Silva will face off again in a runoff.
The National Archives and Records Administration (NARA) told House Oversight Committee chair Carolyn Maloney (D-NY) on Friday that the agency still doesn’t have all of the documents that Trump administration officials were legally required to hand over, per NARA’s letter to Maloney that was obtained by the Washington Post and the Wall Street Journal.
“As Russian Troops Flee Lyman, Ukrainians Rejoice—and Help Themselves to Russian Supplies” – The Wall Street Journal
Home to some 22,000 people before the war, Lyman is a strategic town on the northern tip of Ukraine’s Donetsk region, one of the four areas that Russia has claimed as its own land following sham referendums last month. Its loss is a major embarrassment for President Vladimir Putin—the first such retreat from a city that he claims is officially part of Russia.
“Michael Fanone Is Not Your Fucking Hero” – Rolling Stone
His goal was to return to full duty. The very day he did, he wrote “Go fuck yourselves” on a napkin and submitted it to his supervisor as his resignation. His last day of work was Dec. 31, 2021.
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TPM’s Josh Kovensky has a new piece up on a bizarre case where a federal appeals court has simply failed to make a decision … for almost SEVEN years and counting.
The case was briefed, oral arguments were held (way back in February 2016), and despite entreaties from both parties the court has not issued a decision.
There are rumors and theories floating around for WHY no decision has been forthcoming, but nothing we could nail down or confirm. All we know is the court has abandoned its obligation to issue a ruling in anything approaching a timely fashion, circumstances legal experts describe to us as “extraordinary.”
Update: Hours after TPM published the story below, the 11th Circuit issued a ruling in this case.
For seven years, one case has languished before the 11th Circuit Court of Appeals.
Continue reading “Justice Delayed, Justice Denied: 11th Circuit Fails To Rule On Case For Seven Years”So we know who Perla is. She’s Perla Huerta, a former combat medic and Army counterintelligence agent who was discharged from the Army only last month after two decades in the Army. The news comes from an article in The New York Times. But the information appears to come out of the investigation being conducted by the Bexar County (San Antonio) Sheriff’s department which announced a criminal probe just days after the story broke. The Times as well as lawyers working with the Venezuelan migrants in Massachusetts showed pictures of Huerta to several migrants who had either worked with Huerta or been hustled by her and shipped to Martha’s Vineyard. All apparently confirmed that Huerta was the “Perla” at the center of the operation.
Continue reading “‘Perla’ Is Recently Retired Army Counterintel Soldier”I wanted to update you with some thoughts on recent events in the Russo-Ukraine war. When I write posts like this I usually get a bundle of messages to the effect of, “No, we can’t give in to Russian threats. We see where that’s gotten us.” So let me anticipate that by saying that I agree. I don’t think we should give in to increasingly shrill and unhinged Russian threats to use nuclear weapons over (literally or figuratively) Ukraine. But that doesn’t mean it’s not a highly and increasingly dangerous situation. To bring you up to date, over the last week discussions and planning in NATO and U.S. national security circles have turned heavily toward the possibility that Russia will use nuclear weapons in the Ukraine war. You can see various efforts to quantify these risks in terms of percentage chances or the rise in the percentage chance from last month to now. But really these things are impossible to quantify. Certainly they are impossible for me to put any meaningful numbers to. So what I’d like to do here is just describe the confluence of events getting us to the point where this seems like a real possibility.
Continue reading “Dire and Dangerous”This article is part of TPM Cafe, TPM’s home for opinion and news analysis. It was originally published at The Conversation.
The U.S. Supreme Court opens its new session on Oct. 3, 2022, with a high-profile case that could fundamentally alter the federal government’s ability to address water pollution. Sackett v. EPA turns on a question that courts and regulators have struggled to answer for several decades: Which wetlands and bodies of water can the federal government regulate under the 1972 Clean Water Act?
Under this keystone environmental law, federal agencies take the lead in regulating water pollution, while state and local governments regulate land use. Wetlands are areas where land is wet for all or part of the year, so they straddle this division of authority.
Swamps, bogs, marshes and other wetlands provide valuable ecological services, such as filtering pollutants and soaking up floodwaters. Landowners must obtain permits to discharge dredged or fill material, such as dirt, sand or rock, in a protected wetland. This can be time-consuming and expensive, which is why the case is of keen interest to developers, farmers and ranchers, along with conservationists and the agencies that administer the Clean Water Act – the Environmental Protection Agency and the U.S. Army Corps of Engineers.
The Supreme Court has already shown a willingness to curb federal regulatory power on environmental issues. From my work as an environmental law scholar, I expect the court’s decision in this case to cut back on the types of wetlands that qualify for federal protection. https://www.youtube.com/embed/bFGMoFIjKRM?wmode=transparent&start=0 The U.S. has already lost more than half of its original wetlands, mainly because of development and pollution.
Idaho residents Chantell and Mike Sackett own a parcel of land located 300 feet from Priest Lake, one of the state’s largest lakes. The parcel once was part of a large wetland complex. Today, even after the Sacketts cleared the lot, it still has some wetland characteristics, such as saturation and ponding in areas where soil was removed. Indeed, it is still hydrologically connected to the lake and neighboring wetlands by water that flows at a shallow depth underground.
In preparation to build a house, the Sacketts had fill material placed on the site without obtaining a Clean Water Act permit. The EPA issued an order in 2007 stating that the land contained wetlands subject to the law and requiring the Sacketts to restore the site. The Sacketts sued, arguing that their property was not a wetland.
In 2012, the Supreme Court held that the Sacketts had the right to challenge EPA’s order and sent the case back to the lower courts. Now, after losing below on the merits, they are back before the Supreme Court. The current issue is whether the Sacketts’ property is federally protected, which in turn raises a broader question: What is the scope of federal regulatory authority under the Clean Water Act?
The Clean Water Act regulates discharges of pollutants into “waters of the United States.” Lawful discharges may occur if a pollution source obtains a permit under either Section 404 of the Act for dredged or fill material, or Section 402 for other pollutants.
The Supreme Court has previously recognized that the “waters of the United States” include not only navigable rivers and lakes, but also wetlands and waterways that are connected to navigable bodies of water. However, many wetlands are not wet year-round, or are not connected at the surface to larger water systems, but can still have important ecological connections to larger water bodies.
In 2006, when the court last took up this issue, no majority was able to agree on how to define “waters of the United States.” Writing for a plurality of four justices in U.S. v. Rapanos, Justice Antonin Scalia defined the term narrowly to include only relatively permanent, standing or continuously flowing bodies of water such as streams, oceans, rivers and lakes. Waters of the U.S., he contended, should not include “ordinarily dry channels through which water occasionally or intermittently flows.”
Acknowledging that wetlands present a tricky line-drawing problem, Scalia proposed that the Clean Water Act should reach “only those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right.”
In a concurring opinion, Justice Anthony Kennedy took a very different approach. “Waters of the U.S.,” he wrote, should be interpreted in light of the Clean Water Act’s objective of “restoring and maintaining the chemical, physical, and biological integrity of the Nation’s waters.”
Accordingly, Kennedy argued, the Clean Water Act should cover wetlands that have a “significant nexus” with navigable waters – “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”
Neither Scalia’s nor Kennedy’s opinion attracted a majority, so lower courts have been left to sort out which approach to follow. Most have applied Kennedy’s significant nexus standard, while a few have held that the Clean Water Act applies if either Kennedy’s standard or Scalia’s is satisfied.
Regulators have also struggled with this question. The Obama administration incorporated Kennedy’s “significant nexus” approach into a 2015 rule that followed an extensive rulemaking process and a comprehensive peer-reviewed scientific assessment. The Trump administration then replaced the 2015 rule with a rule of its own that largely adopted the Scalia approach. The Biden administration has proposed a new rule that would deem waters of the United States present if either a significant nexus or continuous surface connection is present.
The court’s ultimate ruling in Sackett could offer lower courts, regulatory agencies and landowners clear direction on the meaning of “waters of the United States.” And it will likely affect the government’s ability to protect the nation’s waters.
A broad interpretation could include many agricultural ditches and canals, which might obligate some farmers and ranchers to apply for Section 404 permits. It could also ensure oversight of polluters who discharge pollutants upstream of federally protected waters.
The Sacketts assert that the permitting process imposes significant costs, delays and potential restrictions on property use. In response, the Biden administration contends that most landowners can proceed under general permits that impose relatively modest costs and burdens.
In my view, this court’s anti-regulatory bent – and the fact that no other justices joined Kennedy’s concurring Rapanos opinion – suggest that this case will produce a narrow reading of “waters of the United States.” Such an interpretation would undercut clean water protections across the country.
If the court requires a continuous surface connection, federal protection would no longer apply to many areas that critically affect the water quality of U.S. rivers, lakes and oceans – including seasonal streams and wetlands that are near or intermittently connected to larger water bodies. It might also mean that building a road, levee or other barrier separating a wetland from other nearby waters may be enough to remove an area from federal protection.
Congress could clarify what the Clean Water Act means by “waters of the United States,” but past efforts to legislate a definition have fizzled. And today’s closely divided Congress is unlikely to fare any better. The court’s ruling in Sackett could offer the final word on this issue for the foreseeable future.
Albert C. Lin is a professor of law at the University of California, Davis.
This article is republished from The Conversation under a Creative Commons license. Read the original article.
