News bits: Republican federal judges continue to radicalize; etc.

From the radical right federal court files: Slate writes:

Far-right judges are crafting a theory that would empower courts to strike down trillions of dollars in federal spending.

Recently, the 5th U.S. Circuit Court of Appeals crafted a theory that would empower courts to strike down mandatory spending on federal programs, compelling Congress to either reappropriate the money or let the programs die. This radical and antidemocratic reading of the Constitution would threaten Medicare, Medicaid, Social Security, the Affordable Care Act, unemployment benefits, child nutrition assistance, and so much more. Democrats and Republicans would be foolish to ignore the rebellion against federal spending that’s brewing in the 5th Circuit.

The conservative assault on entitlement programs arose during litigation against a frequent target of GOP ire: the Consumer Financial Protection Bureau, a watchdog agency created in 2010 that protects Americans against exploitative fraud and deceit in home mortgages, credit cards, consumer loans, and retail banking.

At least seven different federal courts dismissed this theory until it landed in the 5th Circuit, the nation’s Trumpiest appeals court. In May 2022, Judge Edith Jones—a Ronald Reagan appointee and hard-right bomb-thrower—wrote a 39-page concurrence asserting that the CFPB is funded unconstitutionally. Four other judges joined her. Then, in October, a three-judge panel formally declared that the CFPB’s independent budget mechanism renders the entire agency unconstitutional. Judge Cory Wilson, writing for the panel, revoked the CFPB’s ability to issue or enforce any regulations. (All three members of the panel were appointed by Donald Trump.) Thus, under the current law of the 5th Circuit, the CFPB effectively does not exist.

You might wonder: What does this skirmish over a small financial agency have to do with hundreds of billions of dollars in annual entitlement spending? The answer: everything. In her concurrence, Jones took pains to clarify that her reasoning was not limited to the CFPB. Jones announced that all “appropriations to the executive must be temporally bound.” If Congress does not put a “time limit” on funding, it gives the executive branch too much discretion over spending.

I've been warning about this case for a while now. One needs to pay close attention to what the authoritarian radical right Supreme Court is doing in terms of the law and nature of government. The Republican Party is hell-bent on gutting all domestic spending programs as much as possible as soon as possible. 

We've seen the radicalized House recently back away from publicly stating that they want to gut Medicare and social security. Instead, they leave this politically dangerous dirty work for the Supreme Court. Once the social safety net is effectively gutted, radical right Republican politicians will claim they had nothing to do with it. That way, they can save them selves from public accountability in the next election. Of course, that assumes that in view of rigged elections, public accountability is even a serious threat to anti-democracy Republican politicians in red states any more. The results of the 2024 elections ought to shed some light on that issue.

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Discontent on the reservation: The AP writes about crime on the Pine Ridge Indian Reservation in South Dakota:

Months later, a father and son who live near Wilson on the Pine Ridge Indian Reservation, home to the Oglala Sioux Tribe, were shot and killed by an intruder, and their bodies weren’t found for six days, she said. Just a few nights ago, Wilson’s oldest son was held at gunpoint in his home.

These types of crimes have become increasingly common on the 5,400-square-mile (14,000-square-kilometer) reservation. Only 33 officers and eight criminal investigators are responsible for over 100,000 emergency calls each year across the reservation, which is about the size of the state of Connecticut, tribal officials said. The officers and investigators are all federally funded — and the tribe says it’s just not enough.

The tribe sued the Bureau of Indian Affairs and some high-level officials in July, alleging the U.S. is not complying with its treaty obligations nor its trust responsibility by failing to provide adequate law enforcement to address the “public safety crisis” on the reservation. The federal government countered in court documents that the tribe can’t prove treaties force the U.S. to provide the tribe with its “preferred level of staffing or funding for law enforcement.” After two days of court proceedings this week, a judge said he would take the case under advisement.

“We need change. Everybody’s tired of the same old talk. It’s all talk, talk, talk every year after year, and our people have suffered for decades,” Oglala Sioux Tribe President Frank Star Comes Out told The Associated Press. “We believe now is the time to take that stand.” 

Between January and June 2022, tribal law enforcement received 285 reports of missing persons, 308 gun-related calls and 49 reports of rape, Oglala Sioux officials said. There are typically only five tribal officers on any given shift, and response time for weapon-related calls can be anywhere from 40 minutes to an hour, Marks said.

The government will argue it is doing enough and completely fulfilling its obligations. The question is whether that is true or not. Treaty obligations are probably ambiguous and thus open to debate. I suspect that state and federal governments still have not figured out how to deal with Native Americans. Maybe they never will.

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Defamation law and the seething radical right: Another frequent target of Republican politicians is the press and news media generally. They are outraged at allegedly being defamed via slander (oral statements) or libel (written statements). It is hard for a politician to prove that they have been defamed in view of the current evidence standard they need to meet. The NYT writes about a current episode in this long-simmering cauldron of elite Republican grievance:

When Gov. Ron DeSantis of Florida convened a round-table discussion about the news media this week, he spared no effort to play the part, perching at a faux anchor’s desk in front of a wall of video screens while firing questions to his guests like a seasoned cable TV host.

But the panel’s message was as notable as its slick presentation: Over the course of an hour, Mr. DeSantis and his guests laid out a detailed case for revisiting a landmark Supreme Court decision protecting the press from defamation lawsuits.

Mr. DeSantis is the latest figure, and among the most influential, to join a growing list of Republicans calling on the court to revisit the 1964 ruling, known as The New York Times Company v. Sullivan.

The decision set a higher bar for defamation lawsuits involving public figures, and for years it was viewed as sacrosanct. That standard has empowered journalists to investigate and criticize public figures without fear that an unintentional error will result in crippling financial penalties.

But emboldened by the Supreme Court’s recent willingness to overturn longstanding precedent, conservative lawyers, judges, legal scholars and politicians have been leading a charge to review the decision and either narrow it or overturn it entirely.  

“How did it get to be this doctrine that has had really profound effects on society?” DeSantis said at the event, which featured two libel lawyers known for suing news organizations and a conservative scholar who recently published an essay titled “Overturn New York Times v. Sullivan.”  

Under Sullivan, public figures who sue for defamation must show not only that a report contained false and damaging information, but also that its publisher acted with “actual malice” by knowing that the report was false or by recklessly disregarding the truth.

This forces a person to speculate what new evidence standard the radical right wants. As usual, that is never made clear. At present the law protects all of the press, including crackpots and knowing liars like QAnon and Faux News. Under Sullivan, all that dark free speech sources have to say when they assert lies and slanders is that the assertions were a mistake and there was no malice or disregard for truth. Proving the contrary is hard, usually impossible. 

Dropping the standard to something like imposing defamation liability for, . . . . what, an honest mistake?, a reasonably debatable truth? . . . would essentially shut down lies and slanders sites like Faux, QAnon, Trump's Truth Social website, Steve Bannon's chock-full-'o-lies podcast, etc. It could also shut down Twitter and Facebook depending on how broad the court decided to make the scope defamation, despite other laws that protect them. On balance, the radical right would be hurt a lot more than the left, radical or not.

Obviously, that is not going to happen. If the Republican Supreme Court decides to tweak the evidence standard, it would try to do so in a way that hurts honest news and liberal sites more than radical right and crackpot sites. How that can be done is not clear, without just coming out and saying what they really want. What the radical right really wants is to make the left shut up, but leave the radical right alone. That is the holy grail.

In normal times, it would be extremely unlikely that the Supreme Court would reconsider the Sullivan evidence standard. But these are not normal times.