Posts from Ian Millhiser

Republicans deploy a nasty bait-and-switch to save one of their worst gerrymanders

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

The state of Michigan does not hold free and fair legislative elections. In 2018, Democratic state house and senate candidates received tens of thousands more votes than their Republican counterparts. Yet Republicans have solid majorities in both houses.

Meanwhile, the state’s congressional districts are so aggressively gerrymandered that, in 2012, when President Obama won the state by over nine points, Republicans still captured nine of Michigan’s 14 U.S. House seats.

All of this is supposed to change, however, and soon. In 2018, voters approved a state constitutional amendment providing that future legislative maps will be drawn by an independent commission. The members of this commission are chosen largely at random from a pool of applicants, in order to minimize either party’s ability to capture the commission. People who recently served as partisan officials, party leaders, lobbyists, or other forms of political insiders may not serve on this commission.

That is, of course, unless the Republican Party gets its way in a lawsuit filed on Tuesday. The case is Daunt v. Benson.

Ignoring corruption

Daunt rests on two interlocking arguments. The first is novel but all-too-plausible in a world where cases like Citizens United v. FEC prevent election laws intended to fight corruption, except in truly egregious cases. The second argument, however, is both extraordinarily aggressive and reminiscent of the argument a Republican federal judge in Texas recently used to order the entire Affordable Care Act repealed.

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Warren’s brilliant plan to neutralize Republican voter suppression

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Senator and presidential candidate Elizabeth Warren (D-MA) released a “plan to strengthen our democracy” on Tuesday.

Much of Warren’s plan tracks the For the People Act of 2019, the legislation commonly referred to as “H.R. 1,” which House Democrats passed last March. What sets Warren’s plan apart is the sophisticated mechanisms she uses to insulate voting reforms from state officials hostile to voting rights.

Warren’s plan is not a perfect solution to the problem of anti-democratic state officials, and, like nearly all laws, it is defenseless against a rogue Supreme Court that is determined to give an electoral advantage to Republicans. Nevertheless, it’s a thoughtful effort at least, to mitigate red states’ ability to sabotage pro-democratic reforms.

The Warren plan includes many of the same reforms included in H.R. 1, a bill which represents the consensus among congressional Democrats and voting rights groups. Like H.R. 1, Warren pushes for enhanced election security, automatic voter registration, early voting at least 15 days before the election, and independent redistricting commissions to thwart gerrymandering, among other things.

Yet, what makes Warren’s plan interesting is the safeguards she layers onto H.R. 1 in order to work around a constitutional quirk that limits Congress’ power to regulate elections.

The Constitution permits states to determine the “times, places and manner of holding elections for Senators and Representatives,” but it also permits Congress to “at any time by law make or alter such regulations, except as to the places of choosing Senators.” Thus, for congressional elections, Congress has virtually unlimited power to tell states how to run elections, so long as Congress does not violate some other provision of the Constitution.

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How Republicans’ zeal for gerrymandering could blow up in their faces

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Let’s talk about a few datapoints that, on the surface, have nothing to do with the Supreme Court — but that in reality could determine whose ox is gored by two upcoming partisan gerrymandering decisions.

The first is a recent Ipsos poll showing that President Donald Trump only receives between 36 and 38 percent of the vote against any of the Democrats named in that poll. Against former Vice President Joe Biden, the current frontrunner in the Democratic primary, Trump loses 50-36. And, while the Ipsos poll shows Trump performing worse than some others, the Real Clear Politics polling average shows Biden winning by more than eight points.

Meanwhile, 3-month U.S. Treasury bonds recently started producing a higher yield than 10-year bonds. This phenomenon, known as a “yield curve inversion,” occurs when investors believe that the economy’s long term prospects bode ill, and so are willing to accept a lower rate of return for one of the safest investments on the planet — a long-term U.S. government bond.

Yield curve inversions are often harbingers of recession.

Trump, in other words, could have to campaign with no major policy accomplishments besides a tax giveaway to the very rich, and he may need to do so while the economy is falling apart. Meanwhile, polls already suggest he’s an underdog, even with a fairly strong economy at the moment.

Which brings us back to Rucho v. Common Cause and Lamone v. Benisek, the two Supreme Court cases challenging partisan gerrymandering.

Hit by a wave

The thing about gerrymandering is that, barring a well-timed electoral wave, it tends to perpetuate itself. Virginia’s House of Delegates is so rigidly gerrymandered to benefit Republicans that Democratic candidates won the statewide popular vote by more than 9 percentage points in 2017, yet Republicans kept a narrow majority in the statehouse. In Wisconsin, Democratic candidates won 54% of the popular vote in the 2018 state assembly races, yet Republicans control an astounding 63% of the assembly seats.

Thus, unless Democrats win the states of Virginia and Wisconsin in a crushing tidal wave that washes Republicans into the sea, the GOP will likely control the Virginia House of Delegates and the Wisconsin state assembly in 2020, when new maps must be drawn.

But early polling data suggests that such a wave is possible in 2020, as under-performing presidential candidates tend to drag down their entire party. And if 2020 is a recession year, a Democratic wave might be inevitable.

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Surprise! Kavanaugh joins liberal justices in 5-4 decision

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

The Supreme Court held on Monday that antitrust plaintiffs may sue Apple for allegedly using its monopoly over iPhone app sales to jack up prices. The decision itself is a minor one, as it largely turns on who is allowed to sue the tech giant for its alleged antitrust violations, not whether Apple broke the law.

Nevertheless, Apple Inc. v. Pepper is significant for an unexpected reason. It is the first case where Trump judge Brett Kavanaugh crossed over to vote with his four liberal colleagues in a 5-4 decision.

The iPhone’s app store, as Kavanaugh notes in his opinion, “is the only place where iPhone owners may lawfully buy apps” for their phone. Apple permits developers to set the prices of these apps, but it also takes a 30% commission on all app sales, regardless of what price the developer sets.

The theory of the plaintiffs’ case is that, were iPhone apps sold in a competitive market with multiple sellers, Apple would have to lower its 30% commission in order to compete with those other sellers. Thus, Apple effectively uses its monopoly on app sales to drive up prices and jack up its own profits.

So it’s a fairly straightforward antitrust case, but there is one hitch. More than four decades ago, in Illinois Brick Co. v. Illinois, the Supreme Court held that only “direct purchasers” may bring antitrust suits against an alleged monopolist.

Illinois Brick involved an alleged price-fixing scheme by a brick company that sold those bricks to masonry contractors, who in turn sold pre-assembled structures to general contractors, who in turn sold construction services to the state of Illinois. Illinois sued the brick company, alleging that it paid higher construction costs because of the price fixing scheme. The Supreme Court held that Illinois could not sue the brick company because, in Kavanaugh’s words, “the State had not purchased concrete blocks directly from Illinois Brick.”

But, as Kavanaugh explains in his Apple opinion, this more recent case is not Illinois Brick. That is, Apple is not a case where a company sold a product to a contractor, who sold it to another contractor, who sold it to an antitrust plaintiff. Apple is a case where a tech company sold a product directly to consumers. Thus, under Illinois Brick, Apple may be sued by those consumers.

Indeed, Apple is such a straightforward case that the most surprising aspect of Monday’s decision is that it produced a dissent — much less a four person dissent. Had Apple prevailed, that decision could have had negative consequences for consumers. As Kavanaugh explains, “Apple’s theory would provide a roadmap for monopolistic retailers to structure transactions with manufacturers or suppliers so as to evade antitrust claims by consumers and thereby thwart effective antitrust enforcement.”

Nevertheless, the most important question arising from Apple is what we should make of Kavanaugh’s apostasy. As I wrote last January, Kavanaugh is not Neil Gorsuch — the nihilist conservative that President Donald Trump placed on the Supreme Court after Senate Republicans held a seat on that court open for more than a year. While Gorsuch embraces “a will-to-power approach to judging” which demands that he seize as much power as he can, and as fast as he can, Kavanaugh and Chief Justice John Roberts “appear to prefer a slower, more incremental approach.”

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Trump joins anti-vaxxers to attack Obamacare

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Last week, the Trump administration asked a federal appeals court to repeal the Affordable Care Act in its entirety. Their argument is fundamentally flawed in numerous ways, not the least of which is the fact that it relies on a dissenting opinion that is explicitly at odds with a binding decision by the Supreme Court’s majority.

On Wednesday, a handful of conservative groups weighed in with amicus briefs supporting this attack on Obamacare. They include an organization founded by failed U.S. Senate candidate Roy Moore (R)Citizens United (yes, that Citizens United), a very short brief authored by one of Trump’s personal lawyers, and two anti-vaxxer groups.

The case is Texas v. United States.

Last month, a very different mix of groups filed briefs urging the court not to repeal Obamacare. That, much longer list of organizations, includes many of the major players in health care — such as the American Medical Association, the American Academy of Pediatrics, the American Hospital Association, the Catholic Health Association of the United States, the American Cancer Society, the American Heart Association, AARP, the Blue Cross Blue Shield Association, and a number of economists and legal scholars.

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GOP judges launch bizarre attack on Black Lives Matter and the First Amendment

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

An opinion handed down Wednesday by three Republican judges could chill the First Amendment rights of protesters — and potentially allow police to shut down political movements by filing lawsuits harassing movement leaders.

The United States Court of Appeals for the Fifth Circuit’s decision in Doe v. McKesson effectively strips First Amendment protections from protest leaders who commit minor offenses, ignoring longstanding Supreme Court precedents in the process.

The “Doe” in Doe v. McKesson is an anonymous police officer who was allegedly injured by an unknown protester who is not DeRay McKesson. McKesson is a prominent racial justice advocate closely associated with the Black Lives Matter movement who, according to Doe’s complaint, helped organize a protest near the Baton Rouge Police Department building.

Doe alleges that the unknown person — who, again, is not DeRay McKesson — “picked up a piece of concrete or similar rock like substance and hurled [it] into the police” that were arresting protesters. Officer Doe claims he was hit by the rock and suffered serious injuries. If true, this rock-thrower’s actions are reprehensible, and whoever threw the rock belongs in prison.

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Trump Justice Department sides with court ruling that would invalidate the Affordable Care Act

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Last December, a Republican judge named Reed O’Connor handed down an opinion purporting to strike down the entire Affordable Care Act. The case, Texas v. United States, was brought by several Republican officials who manipulated the process used to assign judges to cases in order to get this case into O’Connor’s courtroom.

O’Connor, a former Republican Capitol Hill staffer, has a history of striking down policies supported by Democrats on highly dubious grounds. His opinion in Texas was no exception.

Nevertheless, on Monday evening, the Trump administration filed a brief letter in the conservative United States Court of Appeals for the Fifth Circuit informing the appeals court that it agrees with O’Connor’s opinion and will file a brief asking the court to repeal Obamacare in its entirety.

As a general rule, the Justice Department has a duty to defend any federal statute challenged in court, regardless of whether the incumbent administration agrees with that statute. The Justice Department will disregard this duty in rare cases, such as when no reasonable arguments can be made in favor of a law. But, in this case, no reasonable argument can be made in favor of O’Connor’s position.

As originally enacted, the Affordable Care Act required most Americans to either carry health insurance or pay slightly higher income taxes. In the 2017 Trump tax law, Congress effectively repealed this requirement by zeroing out the tax penalty for not having insurance.

The premise of O’Connor’s Texas opinion is that, when Congress repealed this one provision of the law, it rendered the rest of Obamacare invalid. O’Connor’s logic is convoluted, but it rests upon two points.

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The Supreme Court is about to kick America’s democratic death spiral into overdrive

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Somewhere, in an alternative universe where the winner of the 2016 presidential election lives in the White House, partisan gerrymandering is unconstitutional. Justice Merrick Garland provided the key fifth vote in Gill v. Whitford to strike down the Wisconsin Republican Party’s aggressive effort to immunize itself from elections. Lower courts are busy dismantling gerrymanders in states like North Carolina, Ohio, and Maryland. And in 2018, Wisconsin held its first competitive state assembly elections in years.

Meanwhile, here in this universe, the picture is much more grim. In 2018, Democratic Wisconsin state assembly candidates won 54 percent of the two-party popular vote, beating their Republican counterparts by 8 percentage points. Yet Republicans won 63 of the state’s 99 assembly seats.

With Republicans in firm control of the Supreme Court in 2018, the high court decided not to decide Gill, leaving Wisconsin’s gerrymander in place. Then Republicans gained an even tighter grip on the Supreme Court when Justice Anthony Kennedy — the court’s occasional swing vote and the only member of its Republican majority who appeared open to striking down partisan gerrymandering — left the bench.

All of which is a long way of saying that the outcomes in Rucho v. Common Cause and Lamone v. Benisek, two partisan gerrymandering cases that the Supreme Court will hear next Tuesday, are practically preordained. The Court will almost certainly vote 5-4 to hold that such gerrymanders cannot be dismantled by federal courts. Republicans will keep the profound advantages they gained in 2010, thanks to the coincidence of the fact that the GOP had a strong electoral year immediately before a redistricting cycle. States like Wisconsin will remain sham democracies.

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The Supreme Court takes up a gerrymander so egregious even its Republicans may strike it down

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Virginia has not held a democratic election for its House of Delegates for many years — though unless the Supreme Court intervenes in a case known as Virginia House of Delegates v. Bethune-Hill, that’s about to change.

To be sure, the commonwealth goes through the motions of permitting its citizens to cast ballots and then counting those ballots every two years. But Virginia’s gerrymandered maps preordain Republican control of the state house. In 2013, Republicans won a 67-33 supermajority in the House of Delegates, despite the fact that Democrats swept Virginia’s statewide races in the very same election. After the 2017 elections, the GOP majority shrunk to 51-49 — but that’s after Democrats won the statewide popular vote by more than nine points.

Last January, a federal court ordered enough of the state house maps redrawn to give Democrats a very good shot of gaining a majority in the 2019 elections. The fate of this court’s decision that Virginia’s legislatively drawn maps constituted an illegal racial gerrymander is now before the Supreme Court — which will hear oral arguments next Monday.

Ordinarily, the Roberts Court is where voting rights go to die. Just last term, in Abbott v. Perezthe Supreme Court effectively held that white Republicans enjoy such an extraordinarily strong presumption of racial innocence that it is virtually impossible for voting rights plaintiffs to prevail when they accuse lawmakers of drawing district lines with racist intent. And that was before Justice Anthony Kennedy allowed President Donald Trump to choose his successor.

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Trump’s rollbacks would increase CO2 emissions by more than 200 million tons annually, report finds

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

The Trump administration’s ongoing efforts to weaken or dismantle climate efforts would increase CO2 emissions by more than 200 million tons annually, taking a severe toll on public health, according to a new report released Tuesday by the nonpartisan State Energy & Environmental Impact Center at New York University’s (NYU) law school.

Sectors responsible for nearly half of all U.S. greenhouse gas emissions are benefiting from rollbacks and weakened regulations at the expense of U.S. residents, according to the report. But state attorneys general across the country have played a key role in countering the the president’s quest to repeal or weaken several key environmental regulations.

“Donald Trump ran for president saying he was going to be a change agent and unfortunately he has. He has become an agent of climate change,” said Maryland Attorney General Brian Frosh during a Tuesday press conference to discuss the report and long-term impacts of the Trump administration’s environmental rollbacks.

“He has targeted fossil fuels not to decrease their emissions or their threat to society but to increase their emissions — it’s extraordinarily dangerous.”

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