Steve Vladeck
@steve_vladeck

This comes in the federal government’s suit challenging the buoys that Texas placed in the Rio Grande.

The good news is that these judges lost on the procedural dispute dividing the full Fifth Circuit.

The bad news is that they’re endorsing a radical view of the Constitution.

Mark Joseph Stern
@mjs_DC

Five judges on the 5th Circuit are embracing Texas’ claim that it faces an “invasion” of unauthorized migrants and can therefore take control of border security in defiance of the federal government … https://s3.documentcloud.org/documents/24416480/23-50632-cv3.pdf

A Texas attorney who pleaded guilty to slipping abortion medication into his pregnant wife's drinks was sentenced to 180 days in jail.

Catherine Herring, the estranged wife of Mason Herring, told a Harris County court Wednesday that the sentence was not strict enough. Their now 1-year-old daughter has developmental delays and attends therapy eight times a week, she said.

"I do not believe that 180 days is justice for attempting to kill your child seven separate times," she said, according to The Associated Press.

Mason Herring, 39, is accused of drugging drinks he gave to his wife of 11 years after learning in 2022 that she was pregnant with their third child. A complaint states that at the time, the pair was separated but had agreed to attend couples counseling.

Catherine Herring told police that during a counseling session in March 2022, she told her husband about the pregnancy and he "had a negative reaction and after that evening, he sent her text messages expressing that he was not happy about the pregnancy and did not know what to do," the complaint says.

If the effort to ban medication abortion now before the Supreme Court demonstrates anything, it's that the damage caused in our society by junk science can be disastrous indeed.

That's the implication of the retraction of two scientific studies, announced Monday by the journal publisher Sage. The studies provided the purported rationale for a Texas federal judge's ruling overturning the approval of the abortion drugs by the Food and Drug Administration.

It's impossible to overstate the potential ramifications of the ruling issued April 7 by federal Judge Matthew Kacsmaryk of Amarillo, Texas, which invalidated FDA approvals of the drug mifepristone dating back to 2000.

Experts identified...unjustified or incorrect factual assumptions, material errors in the authors’ analysis of the data, and misleading presentations of the data that...demonstrate a lack of scientific rigor and invalidate the authors’ conclusions in whole or in part.

Retraction notice of research on mifepristone

Kacsmaryk's ruling was the basis for an outstandingly loopy decision by the U.S. 5th Circuit Court of Appeals on Aug. 19, which narrowed his ruling somewhat but not entirely. The Supreme Court has scheduled oral arguments on the case for March 26.

Senate Republicans quashed the most comprehensive bipartisan border security package in years, with some arguing it failed to go far enough to address the country’s immigration crisis despite an endorsement from the National Border Patrol Council.

The Emergency National Security Supplemental Appropriations Act failed to pass a procedural step on Wednesday, 50-49, falling short of the 60 votes that would have ended debate and forced a final vote. Nearly all Senate Republicans voted to table the bill, including Utah senior Sen. Mike Lee, who led opposition to the deal.

Just four Republicans joined most Democratic senators in supporting the measure: Utah Sen. Mitt Romney, Sens. Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska, and one of the bill’s authors, Sen. James Lankford, R-Okla.

“The border crisis demands action right now, and we had legislation that would have helped fix Biden’s immigration mess, which is why I voted to get on the bill,” Romney told the Deseret News in a statement.

Why did the Border Patrol endorse the Senate’s immigration deal?

The Senate bill would have gotten to the root of one of the core problems behind the system’s dysfunction, Judd said, by eliminating the ability of, and incentive for, anyone crossing the border to claim asylum and stay in the country with the expectation of getting lost in judicial backlog while awaiting a distant court date.

The bill would only allow asylum claims at official ports of entry and would grant Border Patrol agents new authority to conduct “credible fear” interviews at the border to determine whether someone qualifies for further legal steps. The bar for passing such interviews, and being granted entrance into the United States, would also be “raised exponentially” to levels Trump attempted to implement with his policies, according to Judd.

“So this law increases the threshold for credible fear to what President Trump wanted; that is a huge deal because that stops the gaming of this system,” Judd said. “And that’s the reason why we’re in this problem in the first place is because so many people can game the system.”

Tempers flared on the Senate floor Thursday when Sen. Kyrsten Sinema (I-Ariz.) asked Sen. Lindsey Graham (R-S.C.) to explain why he voted against advancing the border security deal she negotiated and Graham responded by panning it as a “half-ass” effort to secure the border.

Sinema appeared frustrated about Graham’s vote to block the border deal from even coming up for debate on the Senate floor after Graham and his staff played what she called an “integral” role in crafting the bipartisan deal, along with Sens. James Lankford (R-Okla.) and Chris Murphy (D-Conn.).

Sinema challenged Graham to justify his vote to block debate on the bill, which also included other foreign policy spending including aid for Ukraine and Israel.

Graham said the deal Sinema negotiated “did a pretty good job in many ways” but added, “I didn’t think it was enough.”

Sinema then asked why he blocked the bill from even coming to the floor, depriving his colleagues the chance to offer amendments to improve it.

That’s when the fireworks started to fly.

Gov. Ron DeSantis’ proposal to send the Florida Guard — a dangerously unaccountable armed force — to the U.S.-Mexico border is a wasteful, perilous political stunt and illegal.

The proposed action would invest millions of dollars of Florida taxpayers’ money and threaten both people arriving legally at our borders and our Constitution’s balance of power between state and federal governments in a desperate ploy to reverse our governor’s waning political fortunes.

DeSantis established the Florida Guard on June 15, 2022, purportedly to enhance Florida’s capacity to deal with hurricanes. It was announced as a civilian force of approximately 400 volunteers to supplement the Florida National Guard, which balances both state and federal government control. The governor asked for $2 million.

Within a year, DeSantis and the super-majority Republican Legislature converted the small volunteer force into DeSantis’ expensive private army.

The Maricopa County Board of Supervisors on Thursday named a longtime Republican who recently switched political parties to meet an eligibility requirement for the appointment as sheriff.

Russ Skinner, chief deputy sheriff of the Maricopa County Sheriff's Office since 2018, was made sheriff with a 4-to-1 party-line vote, with the Republican supervisors voting in his favor.

Skinner registered as a Republican in May 1987 but switched to Democrat on Oct. 3, 2023, one day after former Sheriff Paul Penzone, a Democrat, announced he would step down. State law required the supervisors to appoint someone of Penzone's political party.

Jack Sellers, chair of the board, addressed the party change.

“In my opinion, and in the opinion of a lot of people I talked to, law enforcement should not be a partisan political position. And so we, as a group, really discounted that,” he said.

Sellers said they were looking for an appointee who already had the trust of the Sheriff’s Office staff and other law enforcement agencies in the county.

“We need someone who could step in on day one,” he said.

This week, the Supreme Court will hear oral argument in Trump v. Anderson, a case about whether a once-obscure provision of the Fourteenth Amendment allows the state of Colorado to exclude Donald Trump from its 2024 presidential ballot. The Disqualification Clause, adopted in the wake of the Civil War, provides that any “officer of the United States” who previously took an oath to “support” the Constitution, and then “engaged in insurrection or rebellion” against the federal government, is thereafter barred from running to become a part of it. In December, the Colorado Supreme Court concluded that Trump’s actions on January 6, 2021—whipping up a bloodthirsty mob of his supporters who stormed the Capitol trying to overturn a democratic election—make Trump constitutionally ineligible to seek the White House a second time.

Anderson is as doctrinally complicated at it is politically fraught; as Chris Geidner outlines at Law Dork, the case implicates at least six distinct legal questions, many of which courts have never previously tackled, given that armed insurrections fomented by elected officials have been mercifully rare over the past 150 years. The first three questions in Anderson relate to whether Trump checks every box the Disqualification Clause sets out—whether Trump was an “officer of the United States,” and whether January 6 was an “insurrection,” and, if it was, one in which he, personally, “engaged.” The latter three questions relate to the upshot—in other words, if Trump indeed ran afoul of the Disqualification Clause, the extent of Colorado’s authority to take matters into its own hands and boot him off the ballot.

Prevailing on any one of these questions could decide the case in Trump’s favor, which means that even in Supreme Court-adjusted terms, there is a ton of jargon swirling around this Discourse. Thanks to the ascendance of originalism, a jurisprudential philosophy that fetishizes “history and tradition” to the point where honest-to-God federal judges are declaring the government powerless to stop domestic abusers from shooting their partners to death, most of the arguments here are written in the same language: experts poring over the history of the Reconstruction Amendments to explain why Trump should win by a comfortable margin. In The New York Times, for example, the law professor Kurt Lash argues that the Fourteenth Amendment’s drafters would not have thought the Disqualification Clause applied to presidents, because the office of the president was considered to be part of the federal government, not a “civil office” under the federal government. “The Supreme Court should limit the clause to its historically verifiable meaning and scope,” he writes.

As confident as Lash is, he has plenty of company. The “historical background,” one brief argues, demonstrates that in 1788 and 1868, “officers” of the United States were understood to refer to appointed officials, not elected ones. A careful review of “history, case law, and congressional action,” another argues, shows that the Disqualification Clause is not “self-executing,” and that Congress must pass laws to give it effect. A particularly ambitious genre of brief claims that presidents cannot be subject to the Disqualification Clause because the presidential oath of office talks about a duty to “preserve, protect, and defend the Constitution,” but not to “support” it. Another asserts that Trump’s actions on January 6 were not serious enough to constitute “engaging” in insurrection, which is roughly analogous to explaining that, technically, a deadly Capitol riot is only an “insurrection” if it comes from the insurrection region of France.

As House Republicans failed Tuesday evening in a vote to impeach Homeland Security Alejandro Mayorkas, two staunch conservative representatives from Texas pushed back against former President Donald Trump's claims that reforming the US-Mexico border is easy.

Following the unsuccessful 214-216 impeachment vote, Rep. Chip Roy railed against the GOP and Trump for likely putting an end to the Senate's recently introduced bipartisan immigration bill, which Trump has personally asked to be blamed for killing.

"We're not going to just pass the buck and say that, 'Oh, any president could walk in and secure the border,'" Roy said. "I saw former President Trump make that allegation earlier today on one of his social media posts. 'All the president has to do is declare the borders closed and it's closed.' Well, with all due respect, that didn't happen in 2017, 18, 19, and 20. There were millions of people who came into the United States during those four years."

As the conservative think tank Cato Institute estimated in 2021, Trump's administration largely cut down on the number of legal immigrants during his time in office. But his attempts to halt illegal immigration via a border wall and other means didn't work.

Rep. Dan Crenshaw, a Houston-area Republican, chastised his fellow GOP House members in an interview Tuesday night for tanking the recent Senate immigration agreement. He questioned if it was even necessary for the party to write and file a separate immigration bill in May 2023.

During Wednesday’s arguments over the language of a proposed ballot initiative to protect abortion rights, Florida Supreme Court Chief Justice Carlos Muñiz kept returning to a well neither side had briefed.

“It talks about ‘all natural persons are equal before the law and have unalienable rights’ — I don’t know that I could affirmatively say that the term ‘natural person,’ as a matter of just ordinary meaning, doesn’t include the unborn,” Muñiz said. “We certainly talk about the unborn that way.”

Muñiz was quoting from one of the earliest passages in Florida’s constitution that says that all natural persons “are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property.” If this passage applied to “the unborn” — or in non-anti-abortion political speak, embryos and fetuses — abortion at every stage would be murder. This is a state-level version of fetal personhood, the anti-abortion white whale.

While Muñiz was eager to promote his radical interpretation of the state constitution, Florida, even under its hard-right regime, does not presently embrace it. The state currently has a 15-week abortion ban, with a six-week one tangled up in court. If the state was operating under his preferred approach, abortion would likely be banned completely.

Florida Attorney General Ashley Moody (R) had asked for the state Supreme Court to issue an advisory opinion on whether the text of the proposed ballot initiative — titled “Amendment to Limit Government Interference with Abortion” — was misleading or contained multiple subjects. The proposed amendment states that no law shall “prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health.”