Today's the Day

Well, not really. It's the calm before the storm. Today the Supreme Court will hear oral arguments in Dobbs v. Jackson Women's Health Organization. The lawyers will calmly present their cases and the justices will pepper them with questions and then everyone will go home. The real storm will happen when the Court issues its ruling in June—in the middle of election season—and then heads for the hills. "Dobbs" is Mississippi State Health Officer Thomas E. Dobbs, who is defending a state law that bans abortions after the first 15 weeks of pregnancy. "Jackson" is the only abortion clinic in Mississippi. Here it is in all of its pink, art deco glory. Next to it is Dobbs, in this case explaining that 13 Mississippi hospitals have no ICU beds left due to COVID-19, but that today all of his attention will be on the Supreme Court. Now you know the players.

This is one of the hottest potatoes around, and five of the justices are just champing at the bit to either overturn the 1973 Roe v. Wade decision, or at least completely neuter it without formally overturning it. That case arose when Norma McCorvey became pregnant and did not want to bear a third child, but Texas's law forbade abortion except to save the life of the mother. She filed a lawsuit against the local D.A., Henry Wade (using the pseudonym "Jane Roe" to protect her privacy), claiming that she had a constitutional right to an abortion. In the end, the Supreme Court agreed with her, 7-2. Justice Harry Blackmun, who was appointed to the Court by Richard Nixon, wrote the majority opinion. Concurring were Chief Justice Warren Burger (also a Nixon appointee) and Associate Justices William Brennan (Eisenhower), William Douglas (F. D. Roosevelt), Thurgood Marshall (L. Johnson), Lewis Powell (Nixon), and Potter Stewart (Eisenhower). Justices Byron White (Kennedy) and William Rehnquist (Nixon) dissented.

Thus, five of the seven justices who were in the majority were Republican appointees and one of the two dissenters was a Democrat. Three of Nixon's four appointees were in the majority. Also, if this had been a really important case, Burger would have written the opinion himself. Instead, he assigned it to Blackmun, a newbie with only three years' seniority on the Court. Back then, abortion wasn't the most important issue in the known universe and it certainly wasn't the blue team vs. the red team, as it is now. How times change.

At least some of the change in how central abortion is to life in America is due to Karl Rove, George W. Bush's political strategist. Rove knew that running on the Republicans' real agenda—cutting taxes on rich people and deregulating business—was never going to get Bush (re)elected, so he put the culture wars front and center to distract the voters. It worked brilliantly.

Most observers do not think the Court would have taken Dobbs if it simply wanted to maintain the status quo. Consequently, almost everyone is expecting it to either overturn Roe altogether, stare decisis be damned, or to simply allow states to impose restrictions that either make abortions extremely difficult to obtain or else that make it impossible for abortion clinics to operate. We'll go out on a limb here and say that we don't expect Chief Justice John Roberts to vote for a full rollback of Roe because: (1) he has some respect for precedent and (2) he is a more political animal than the other conservatives. But he could easily vote to allow states to restrict abortions in various ways, making them very difficult to obtain. Of course with the new gang of six, his vote is not needed to overturn the precedent.

It is very important to note that even if Roe is completely done away with, abortion will not be illegal in the United States. We will just return to the pre-1973 situation in which it is up to the states to decide. All the states controlled by the Democrats will continue to allow it and almost all the states controlled by the Republicans will ban it. The Republicans have the trifecta in New Hampshire but we doubt that a state whose motto is: "Live free or die" will ban the procedure. States that are divided may be unable to pass new laws banning abortion. These include Michigan, Pennsylvania, and maybe a couple of states in the South with Democratic governors.

The main burden of a (de facto) overturning of Roe will be imposed on poor women, especially poor minority women, in the Deep South and Midwest. Women in Idaho will go to Oregon; women in Utah will go to Nevada; Women in Wyoming will go to Colorado; Women in Ohio will go to Michigan, and so on. It is the women in red states far from a blue state—like Arkansas, Louisiana, and Mississippi—who will suffer the most.

On the other hand, if online pharmacies in blue states are willing to sell abortion pills containing mifepristone and misoprostol to anyone who has had an online consultation with the prescribing physician, in practice at least some women in red states will be able to secure a mail-order abortion. Red states might try to ban their residents from ordering them, but if they are delivered in plain brown envelopes they will be hard to detect. If local postmasters tamper with the mail looking for these pills, they will be committing federal felonies. However, the pills can be taken only in the first 10 weeks of pregnancy, so if a woman discovers she is pregnant and hesitates too long, this option will be gone.

Both pro- and anti-abortion activists have been preparing for this moment for 15 years. Clinics in blue states are staffing up, expecting an influx of patients from red states. California, especially, is expecting every Arizona woman who wants an abortion to show up in Los Angeles. Conservatives are busy drafting model legislation to get friendly legislatures to rubber stamp. Both sides have huge warchests for the post-Roe era. It will be no holds barred.

If Roe is abolished or weakened into oblivion, battles for the state legislature and governor's mansions in many states in 2022 are likely to center on abortion, possibly overriding all other issues. This could be good news for the Democrats. If they were to campaign on preventing the state legislature from outlawing abortion and the Republicans were to campaign on "Afghanistan," we strongly suspect the latter won't fly. For once, state politics might trump national politics. Could Tip O'Neill have been right after all? Here is a breakdown of what state law will be if Roe is struck down:

If Roe is formally overturned, a number of states have trigger laws that will automatically come into effect banning abortions. However, if it is technically kept on the books but merely eviscerated, the laws won't suddenly become applicable with no action required on the part of the legislature.

If new laws are needed, an important question is how they will be written. If they criminalize performing an abortion, that will shut down all in-state clinics. If they ban interstate travel to obtain an abortion, that is sure to prompt blue states to pass laws banning interstate travel to obtain guns and other things the blue states don't want, putting the Supreme Court in a bind. And of course, Congress also gets to say something about interstate commerce. If states criminalize getting an abortion (for example, by buying pills online), then the optics of imprisoning some 13-year-old girl who was raped by her uncle aren't going to look good.

A key to this is Roberts. He cares about the institution of the Supreme Court much more than the other five conservatives. It is possible that he will vote with them in order to assign the opinion to himself and write it in a way that tries to maximize the effect on restricting abortions while minimizing the political fallout from the decision. It is even possible that he will try to find some compromise in order to protect the Republican Party from being shellacked next year. That could be something like moving the goalposts from "no abortions after 24 weeks" to "no abortions after 15 weeks." That wouldn't please either side, but could prevent a Republican bloodbath next year. There is no reason to believe Roberts actually cares much about abortion, but there are lots of reasons to believe he cares about the Republican Party. The future is murky but we can say that a decision to effectively ban abortion will have a huge impact on the midterms. (V)

Appeals Court Appears to Be Ready to Reject Trump's Lawsuit

The House Select Committee investigating the Jan. 6 attempted coup wants to get White House records about what happened that day. Donald Trump sued to prevent that. The documents the Committee wants are at the National Archives. They were drawn up by former Chief of Staff Mark Meadows, former adviser Stephen Miller, former Deputy White House Counsel Patrick Philbin, and others. Trump has asserted executive privilege over all of them.

He lost in the first round and now the U.S. Court of Appeals for D.C. has held a hearing on the case. From the questions and comments from the three judges—all of them Democratic appointees—it looks like Trump will also lose round two. But as usual, the Supreme Court will get the final call, probably next year sometime.

The three judges are Ketanji Brown Jackson (a Biden appointee), Patricia Millett (an Obama appointee), and Robert Wilkins (also an Obama appointee). During the hearing, all three judges expressed skepticism that the decision of a former president could override the decision of a sitting president. Millett said: "We have one president at a time under our Constitution." That doesn't sound like she is going to vote to support Trump's wishes over Joe Biden's.

Millett asked Trump's attorney, Justin Clark to state a precise rule for when a former president should be able to override the current president. Clark said: "Calling balls and strikes on kind of ethics, non-legal ethics things are not my bailiwick." She also noted that Trump has not explained why the documents are so sensitive that Congress may not see them. Jackson said that a sitting president has to balance the impact of angering Congress against the impact on operating the Executive Branch, but a former president doesn't have to worry about that. Wilkins told Clark that his argument seems to be saying that a former president's view carries as much weight as the sitting president's.

Trump's lawyers argued that future presidents won't be able to function properly if they know the opposition party could subpoena all of their documents at some future date. That argument was already rejected by the district court, in part because the sitting president (whose records might be subpoenaed by a future Congress) doesn't buy it. The district judge, Tanya Chutkan, said that presidents are not kings.

The relevant law here is the Presidential Records Act of 1978. It states that most White House records become eligible for release 12 years after a president leaves office. Until that time, the former president may request that the sitting president assert executive privilege. If the sitting president refuses, the former president can go to court. That has never happened until now, so when the Supreme Court rules on the case, it will set a precedent. Trump's lawyers probably realize that a sitting president's judgment will always override a former president's judgment, but they are just stalling for time in hopes of keeping the documents out of the Committee's hands until at least June 2022. (V)

Meadows Is Said to Be Cooperating with the Committee

While Donald Trump's lawsuit makes its way through the courts, another relevant development may be unfolding much faster. CNN is reporting that Mark Meadows is cooperating with the Select Committee. He has already produced records and is prepared to testify. Of course, he could show up and plead the Fifth Amendment as the answer to every question. Or if he gets bored with that, he could throw in "I don't remember" once in a while. Chairman Bennie Thompson (D-MS) said: "The Committee will continue to assess his degree of compliance with our subpoena after the deposition." So Thompson will believe Meadows is cooperating after he actually sees it.

It is also possible that Meadows will not produce any information or testimony on anything Trump regards as privileged. But maybe he will. Why might Meadows cooperate? After all, Trump certainly will attack him viciously if he does. It could be something as simple as not wanting to risk going to prison. Steve Bannon might consider it an honor to be sent to prison for defending Trump (as long as it isn't for too long), but Meadows isn't Bannon and is not known to grandstand just for the publicity. Still, the real test will come when the Committee starts asking him detailed questions about what Trump was doing on Jan. 6, what was going on at the Willard Hotel, and related matters. This wouldn't be the first time an underling decided to save his own neck instead of his boss's, but again, when push comes to shove, we'll find out how many beans he is willing to spill.

Some of the Committee members have said that they have questions for Meadows that are not directly related to Trump, such as his coordination with people other than Trump on Jan. 6. Such matters would not be covered by any current notion of executive privilege.

Part of the reason Meadows may be reconsidering the stonewalling he has been doing up to now may be that, on Sunday, Rep. Adam Schiff (D-CA), said that the Committee was ready to take up the matter of requesting the Dept. of Justice to indict Meadows for criminal contempt. Meadows may have gotten the message and believed Schiff was serious. But again, whether Meadows is sincere or just trying to distract the Committee with fake cooperation will become clear only when he gives his deposition. (V)

Trump Is Trying to Place Allies in Key Positions in Advance of 2024

Donald Trump and his supporters know that if they had a more friendly secretary of state in Georgia, he or she might have been able to "find" another 12,000 votes, preferably before the results were announced. They are not making the mistake of leaving that to chance in 2022, and certainly not in 2024. Not only are they trying to elect Trump-friendly Republicans to key statewide offices such as secretary of state, but they are also looking at lower offices as well. For example, in two Pennsylvania communities, candidates who believe Trump was cheated in 2020 were elected as voting judges and inspectors last month. The Trumpers are also actively trying to get more Trump-friendly activists to apply for jobs in election offices. When the ballots are counted, the machines invariably spit out some as ambiguous, and local officials get to make the (first) call about whether to count them. Trump-friendly activists might just do that differently than people who are neutral and just want to uphold the local laws.

The effort to take control of the election machinery goes way beyond Trump's broadsides against Georgia Secretary of State Brad Raffensperger (R) and Gov. Doug Ducey (R-AZ). It involves replacing secretaries of state, attorneys general, county clerks, paid precinct judges, and volunteer poll watchers, among others. Colorado Secretary of State Jena Griswold (D) said: "The attacks right now are no longer about 2020. They're about 2022 and 2024. It's about chipping away at confidence and chipping away at the reality of safe and secure elections. And the next time there's a close election, it will be easier to achieve their goals."

One of Trump's biggest pushes is in Michigan. Kristina Karamo (R) is running for secretary of state. She has supported "forensic audits" of the 2020 results, as in Arizona, despite the results of the Arizona audit showing that Joe Biden actually got more votes than the official tally showed. Matthew DePerno, a Trump-supporting lawyer who waged a battle over an election night error in Antrim County, is running for attorney general. Trump has endorsed both of them.

But the push there goes all the way down to county boards of canvassers, which usually have equal numbers of Democrats and Republicans. In 2020, Trump bullied the Republican members of the boards in Michigan and tried to get them to refuse to certify the results. In some cases that worked, but later the board members tried to take back their votes. Trump wants members who will refuse to certify the votes in counties that vote against him and who will stick by their votes, no matter what happens next. One of the members of the Wayne County (Detroit) board, Monica Palmer, has now been replaced by Robert Boyd, who said he would not have certified the results because he believed (without any evidence) that there was fraud.

In Macomb County, MI, Nancy Tiseo has been appointed to the board. After the 2020 election, she tweeted that Trump should suspend the Electoral College and have military tribunals investigate election fraud. Now she is one of the people in charge of certifying the votes.

In Genesee County, MI, Michelle Voorheis, who has served on the canvassing board for 13 years, was not renominated by the local Republican Party because she upheld the results of the election in 2020. She was replaced by a local pastor who is apparently happy to mix church and state. The county clerk lamented Voorheis' departure. The local GOP chairman, Matthew Smith, has pleaded guilty to calling Houghton County Election Clerk Jennifer Kelly (D) to harass her. Smith threatened to kill her dogs. Stuff like this is happening all over.

In Colorado, Mesa County Clerk Tina Peters sneaked an outsider into the local office and allowed him to copy the hard disks of voting machines to search for fraud. The problems with dishonest and corrupt officials are everywhere.

The RNC is doing its part. It has created a permanent infrastructure of attorneys and organizers to file lawsuits and recruit and train poll watchers. In short, the efforts to potentially subvert the 2022 and 2024 elections are now going on at all levels. Even if they don't overturn key races, they may succeed in creating enough doubt that people will not believe the officials elected are legitimate. Vladimir Putin may have achieved his goal and it hasn't cost him a single ruble. (V)

Trump Helps NRCC Raise $17 Million at One Dinner

Donald Trump is busy on many fronts. Not only is he trying to put allies in key positions in the elections system, but he is also busy raising money. And once in a while, it isn't for himself. In November, he headlined the NRCC's annual fundraising dinner in Tampa. The group pulled in $17 million from that one event. It is an incredible haul for a single dinner. (Well, unless we're talking sushi for six at Masa.)

While that haul is impressive, in October the Democrats did fine. The DCCC pulled in $11.7 million, $2 million more than the Republicans. Neither party has reported its November results yet (which, for the Republicans, will include that $17 million take).

The NRCC intends to use the money to flip 70 House seats currently held by Democrats. They are unlikely to win most of them, but the combination of redistricting, gerrymandering, history, and Joe Biden's poor approval ratings certainly makes them the favorites to get the four seats they need to take control of the House. (V)

Out of the Frying Pan, into the Fire in Pennsylvania

Pennsylvania Republicans are fortunately now rid of Sean Parnell, whose estranged wife convinced a judge to issue two protective orders to keep him away from her and their children. He has suspended (i.e., dropped) his Senate run. But nature abhors a vacuum, so it looks like another terrible candidate is going to enter the race. The Philadelphia Inquirer is reporting that Dr. Mehmet Oz is going to jump into the race for the Senate seat from which Sen. Pat Toomey (R-PA) is retiring. The official announcement is expected within a week.

Oz has already hired staff and he could self-fund his entire campaign. However, he lived in New Jersey until he started to contemplate a run. Then he changed his voting address to that of his in-laws in Montgomery County, PA, but didn't actually move there. He does have a connection to Pennsylvania though: He graduated from the University of Pennsylvania's medical school 35 years ago.

Oz practiced medicine for a few years, but then he switched to getting rich by giving wellness advice. He even got his own TV show. However, in 2014, a team of medical researchers showed that 78% of the advice he gave had no scientific basis. Soon afterwards an open letter signed by 1,300 actual doctors called him "a quack and a fake and a charlatan." That might be a selling point in the Republican primary, but probably wouldn't help much getting those college-educated suburban voters in the general election.

Oz is a fan of homeopathy. This consists of taking something that could (or did) cause the underlying condition and administering minute doses of that thing, on the theory that two negatives cancel out and equal a positive. He also thinks it is possible to communicate with the dead and that having a master of the Japanese tradition of Reiki stand in the operating room giving off energy will help patients survive risky operations. We bet he has some very innovative ideas about how to prevent COVID-19. The oppo teams of the Democrat in the general election, probably either Lt. Gov. John Fetterman (D-PA) or Rep. Conor Lamb (D-PA), will feast on all the material publicly available. They won't have to dig for scandals at all.

But Oz hasn't won the Republican nomination yet. While he may be able to bamboozle millions of ordinary Americans, NRSC Chairman Sen. Rick Scott (R-FL), who ran a hospital company, albeit a crooked one, knows better. He is trying to recruit hedge fund CEO David McCormick, who lives in Connecticut, to the race. Oz' entry would mess up that plan big time. If McCormick comes to realize he will have to spend tens of millions of his own dollars just to win the Republican primary against another rich carpetbagger, he may decide it's not worth it. Successful hedge fund managers are usually pretty good with statistics, risk, and money. If McCormick declines, the Republicans might end up being stuck with Oz. (V)

Republicans Now Want to Support Anti-Vaxxers Financially

Every single House Republican voted against Joe Biden's American Rescue Plan in February and every Republican senator (except one who didn't vote) voted against it as well. The bill provided for payments to people who were out of work as a result of pandemic-induced closures of businesses. The Republicans felt that giving people free money would make them lazy and not look for work. Republicans don't like giving people free money.

Until now, that is. In Florida, Iowa, Kansas, and Tennessee, state officials have changed the rules to provide unemployment benefits to people who were fired or quit because they refused to be vaccinated. Normally, people who quit their jobs don't get unemployment benefits, but lawmakers in these states are apparently not worried that these people will become lazy and not seek work. So now people in those states who don't like their jobs can just quit, claim they are anti-vaxxers, and be supported by the state. Nice work if you can get it.

Nine states have passed laws banning private companies from requiring vaccinations or else requiring the companies to exempt anyone claiming a religious or philosophical objection to vaccination, even without proof. One category of exemption is "anticipated future pregnancy," even though most public health officials now recommend the vaccine for women who are already pregnant and certainly for women who might possibly become pregnant in the future. These laws will soon collide head-on with OSHA regulations requiring companies with 100 or more employees to require them. As usual, the Supreme Court will get to decide this.

The legal uncertainty is affecting companies. For example, Florida's new laws caused DisneyWorld to suspend its vaccine mandate. If enough companies do this, the pandemic will continue to rage. Although this is not our Friday schadenfreude item, it will be mostly Republicans who get sick and die as a result of these new laws. We wonder if the state legislators took that into account when passing them. (V)

Greece Imposes a 100-Euro Fine on Unvaccinated Seniors

While most states are scared to bring the hammer down on unvaccinated people, it is interesting to note that in other countries they are not scared at all. Greece, in particular, has announced that vaccination against COVID will be mandatory for everyone over 60 starting Jan. 6. The fine for noncompliance will be €100 ($114) per month. That's about $1,368 per year, with no end date. The fine will be collected by the tax authorities. The government softened the blow by calling the fine a "health fee."

The focus of the new law is on older people because they get sick at a higher rate than younger people and thus take up more space in hospitals, preventing people with other diseases from being treated. In terms of public health (e.g., use of hospital resources), vaccinating one 70-year old is equivalent to vaccinating 34 young people.

Would such a scheme be legal in the U.S.? Absolutely. In the early 1900s, 11 states had compulsory vaccination-against-smallpox laws with a fine for noncompliance. Massachusetts pastor Henning Jacobson refused vaccination and was fined. He appealed and the case went to the Supreme Court, which ruled 7-2 that the state's duty to safeguard its citizens overrode Jacobson's desire not to be vaccinated. So based on existing jurisprudence, a state could require vaccination for all residents (and probably a subset of them—for example, seniors, as in Greece) and it would pass constitutional muster. Whether the federal government could do this is another matter, though. That has never been tested in court. But under current case law, states clearly can mandate vaccines.

Germany may go even further than Greece. Incoming Chancellor Olaf Scholz wants to mandate the vaccine for all Germans, regardless of age. He also supports prohibiting unvaccinated people from entering public places except food stores. Many other German leaders support him.

While the U.S. federal government can't do anything like this, there are things it can do, short of ordering the population to be vaccinated. Joe Biden signed an executive order on Sept. 9 instructing all federal agencies to fire employees who refuse to be vaccinated. However, Biden is a kind fellow, so he is allowing OMB to tell agencies to reserve December for "counseling" employees about the new reality in order to avoid firing them just before the holidays. However, if they still don't have the message by January, they will be out. So the new move just delays execution for a month. And if they are Eastern Orthodox, Christmas will still be ruined. Still, some employees may talk to friends and family over the holidays and decide that getting vaccinated is better than hunting for a new job, especially if the one they have now is a good one.

The number of employees affected is fairly small. Across the board, 96.5% of federal employees have already had one shot of some vaccine. The department with the highest compliance is the Dept. of Transportation, with 99.6% compliance. The worst is the Dept. of Agriculture, with only 86.1% compliance. We bet Secretary of Transportation Pete Buttigieg could beat Secretary of Agriculture Tom Vilsack at arm wrestling, too. (V)

Atlanta Has a New Mayor

When Mayor Keisha Lance Bottoms (D) decided she wasn't interested in another term, it set off a feeding frenzy as various politicians maneuvered to be her replacement. In the first round of voting, Atlanta City Council president Felicia Moore (D) finished comfortably in first place, with 41% of the vote. In second, in something of a surprise, was city councilman Andre Dickens (D) with 23% of the vote, who saw to it that third-place finisher and former mayor Kasin Reed (D) remained retired. Incidentally, though we have listed partisan identifications, the mayoralty of Atlanta is officially nonpartisan. But so is the Supreme Court, so...

Yesterday, the good people of Atlanta—well, about 16% of them—headed to the polls again to pick a winner in the runoff between Moore and Dickens. This may not have been a surprise to our Georgia readers, but we don't follow Atlanta politics that closely, so it was a surprise to us: The winner, in a rout, was Dickens. Moore was a little bit less than 10% from the promised land in the first round, but managed to collect far fewer votes in the second round (28,572 vs. 39,520 despite facing one opponent instead of 13). That's a drop of about 40%, compared to a drop in turnout of 25%.

Dickens apparently ran a heckuva campaign focused on affordable housing and infrastructure improvements. Conveniently for him, and a possible future reelection bid, a bunch of money for the latter purpose is coming down the pike (presumably I-85) from Washington. The mayor-elect, and particularly his surrogates, also managed to tear Moore down, suggesting she doesn't work well with others, and that she was the "white people's" candidate (i.e., an Uncle Tom). You can get elected president as the white people's candidate, but maybe not mayor in a city that is 51% Black. If any readers have insight into the election beyond this, we will be happy to share them in this week's mailbag. (Z)

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