We have two weeks until Election Day, and though the news is less frenetic than it was a week ago, that doesn’t mean it’s much more pleasant. It’s impossible to predict what we’ll be seeing by this time next week, given how unprecedented everything continues to be. But one thing’s for certain, y’all: I don’t think the chocolate supply in my house is going to make it.
Standard standing reminders apply: I am no journalist, though I play one in your inbox or browser, so I’m mostly summarizing the news within my area of expertise. NNR summaries often contain some detailed analysis that’s outside my expertise–I’m a lawyer, not a Hatch Act!–but all offroad adventures are marked with an asterisk. And, of course, for the things that are within my lane, I’m offering context that shouldn’t be considered legal advice. Okay, I think that’s about it for the disclaimers. Onward to the news!
Constitutional Crisis Corner:
We have a more-or-less ordinary mélange this week in Disregard of Governing Norms, which is a depressing sentence to type. Here’s what I have for you:
- October Constitutional Crisis Surprise. The Trump administration had multiple instances of illegal election stuff this week, so I’ve given up and just started documenting them in the Constitutional Crisis Corner. Ivanka Trump violated the Hatch Act eight times in a 48-hour period on Twitter, making her the fourteenth Trump staffer to commit that kind of violation this election season. Then Trump gave a soundbite in Arizona today that sounded an awful lot like normalizing quid pro quo dealings yet again, though he halfheartedly framed his interaction with Exxon as a hypothetical donation he didn’t want. So I guess the surprise this year is… probably more law violations with no consequence? But that’s not particularly surprising.
- Original Flavor CCC. We also had some familiar First Amendment problems this week. Allegations persist that U.S. marshals shot an activist suspected of shooting without even trying to arrest him, which the U.S. Marshal’s official statement seems to tacitly support. Moreover, eyewitnesses are now saying they didn’t even announce themselves as police before shooting. Extrajudicial shootings are always concerning when there’s evidence of excessive force, but Trump went ahead and illustrated exactly why this is a problem by praising the marshals who “didn’t want to arrest him” because the entire judicial process “took fifteen minutes.” Then the administration followed that up by again signaling it will refuse to send COVID aid to “anarchist jurisdictions,” which, spoiler, is just as illegal now as it was the last time they threatened this.
Your “Normal” Weird:
- Other Election Oddities (Again). Even the non-illegal election stories this week were really weird. The New York Post attempted to support Trump with a story about Hunter Biden fed to them by Rudy Giuliani that was so dubious that Facebook and Twitter limited reader access to it, and apparently Fox News refused to run it. (I honestly hope Hunter Biden sues them for libel.) We also had competing town halls on Thursday instead of a debate because Trump refused to debate remotely. As I type this, Trump is already making demands about Thursday’s debate that seem like he may be laying groundwork to get out of that one too–my pet theory is that he hates the debate commission’s plan to mute the microphones during candidate rebuttals. We’re also seeing a lot of chaos in the courts regarding voting laws, although there was a positive SCOTUS case today that I’ll talk more about below. But early voting numbers are very high, which hopefully means that people are successfully voting.
- State of the COVID-19. We appear to be seeing a surge of COVID cases in much of the nation as I type this, with rolling averages hitting new highs in 37 different states, and over eight million cases nation-wide. Johnson and Johnson was in the news because it was forced to pause its large-scale vaccine testing due to an “unexplained illness” in a participant. The administration is oscillating between advocating for herd immunity and slandering their own top health official, Dr. Anthony Fauci, because he doesn’t like the herd immunity idea. (Just to reiterate, herd immunity is an incredibly unethical, dangerous, and flat-out non viable option for dealing with this pandemic.) And Speaker of the House Nancy Pelosi has set a Tuesday deadline for a stimulus deal, though I’m not sure why she bothered when it’s clear no deal is forthcoming.
- SCOTUS Hearing Updates. The remainder of the Amy Coney Barrett hearing… happened… and though she mostly presented well on the floor, the whole thing was still incredibly horrifying in both substance and process. A lot can be gleaned by what Barrett refused to answer, as she was willing to confirm some ideas but not others. Among the list of things she signaled in her multi-day hearing: She might not preserve peaceful transfer of power; she won’t care about unconstitutional immigration enforcement; she wants to overturn Roe v. Wade; and she probably also wants to revoke same sex marriage. At the conclusion of the hearing, ranking Democrat member Dianne Feinstein thanked committee chair Lindsey Graham and hugged him, which is disturbing on a number of levels given his refusal to get tested for COVID. Now that the hearing is over, we can expect a Judiciary Committee vote on October 22, which probably will bear no relation to anything said at the hearing, and Senate floor debates begin October 23.
- SCOTUS Census Decision. While all of this was going on, the Supreme Court went ahead and more-or-less gave the Trump administration permission to end the census count on October 15, fifteen days before it was supposed to end per federal district court order. This order is related to a second case SCOTUS will hear in the near future, about whether the Trump administration can just unilaterally exclude undocumented people when calculating congressional seats based on population. Needless to say, the first decision doesn’t bode well for the second case–and that’s particularly upsetting because the government arguments on the latter case uncomfortably echo discarded precedent about whether to count human beings as people during the American era of slavery.
- Recent Court Resilience. There was one positive Supreme Court decision today, which is something I guess. The court was evenly split in a 4-4 decision, which in this instance means the Pennsylvania Supreme Court decision remains in place. The PA court’s decision was upholding a PA law permitting extended mail-in voting due to the pandemic, so this is good news for voting rights. That said, I do want to caution that a 4-4 split would likely have become a 5-4 split and come down the other way if Barrett were already on the bench. We’ll need to keep a close eye on those proceedings over the next couple of weeks.
So that’s what I have for this week, and I’m sorry, there are no news refunds. For making it through, you deserve this baby pygmy hippo and an eventual better government. I’ll be back next week with more (and hopefully better) news, and I hope you will be back as well–but in the meantime, feel free to ping the National News Roundup ask box, which is there for your constructive comments. Send me questions! Send me feedback! Send me more chocolate so that I can keep drafting!