lawsplainer
Invoke the 25th
25th Who What Now? How Would That Work?
A lawsplainer for our interesting times.
January 07, 2021 03:57 PM
On January 6, there was a violent stupidcoup at the United States Capitol. Thousands of brainwashed morons stormed the Capitol building and trashed it, in an attempt to stage a coup for their Dear Leader.
Yesterday's constant doomscrolling was truly surreal, even for those of us who have been waiting for something like this to happen since November 8, 2016.
The president has been deemed too unhinged to post on social media, and yet he is still in charge of the US military, the Department of Justice, and our nuclear arsenal. Almost 150 lawmakers for the federal government officially endorsed sedition, even after the terrorist attack on the people's house.
So what the hell can we actually do about these unhinged sociopaths??? Let's take a look.
Invoke the 25th
<p>Trump has less than two weeks left in office, but his actions yesterday made it clear that our country may not last that long with this absolute fucking psychopath at the helm.</p><p>One of the ways we could try to protect ourselves from Trump is with the 25th Amendment. Soon-to-be <a href="https://www.wonkette.com/david-perdue-kelly-loeffler-dont-have-to-go-home-but-they-cant-stay-in-the-senate" target="_blank">Senate Majority (!) Leader</a> Chuck Schumer came out this morning with a shockingly strong statement in support of the 25th being invoked — and Speaker Nancy Pelosi <a href="https://twitter.com/kylegriffin1/status/1347259379909726208" target="_blank">called</a> for it, too.<br></p><p>But invoking the 25th Amendment is <a href="https://www.nytimes.com/2018/09/06/us/politics/25th-amendment.html" target="_blank">no simple task</a>. The 25th was added to the Constitution in the 1960s, mainly as an effort to clarify the line of succession after JFK's assassination, when people worried about what might happen if LBJ were incapacitated before his replacement was confirmed.</p><p>Section 4 of the 25th — which has <em></em>never been invoked — lays out the process. </p><p>It starts with the veep and the Cabinet.</p><blockquote>Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. </blockquote><p>Mike Pence and a majority of the Cabinet would have to give a written declaration to the Senate president pro tempore (Chuck Grassley until January 20) and the speaker of the House that the toddler-in-chief "is unable to discharge the powers and duties of his office." That would make Pence the acting president.</p><p>So first, Pence would need to get most of Trump's Cabinet to declare that he's unfit for office. While this is clearly true, getting Trump's hand-picked bootlickers to agree is no easy task. And the people who are trying to save face after yesterday's fucking disaster have <a href="https://www.wonkette.com/white-house-staffers-shocked-shocked-to-find-their-boss-is-a-homicidal-maniac" target="_blank">already started to resign.</a></p><p>But it doesn't stop there. Trump would have 4 days to challenge Pence & co. and say he IS able to perform his duties. </p><blockquote>Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. </blockquote><p>And then the issue would go to Congress, where both the House and Senate would have to get a supermajority to keep Trump away from the nuclear codes.<br></p><blockquote>Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office</blockquote><p>This is incredibly unlikely to happen in Mitch McConnell's Senate, but it seems downright impossible in the House, which is full of far too many dangerous idiots who voted for sedition, EVEN AFTER the fucking stupidcoup terrorist attack.</p><p>Which brings us to ...<br></p><h2>Impeach the motherfucker again<br></h2><p>And remove him from office this time. </p><p>This would actually be quite a bit easier than invoking the 25th, especially in the House, which requires a simple majority to impeach. And Nancy has already <a href="https://twitter.com/kylegriffin1/status/1347259379909726208" target="_blank">said</a> she'd be happy to impeach the motherfucker again if the 25th isn't invoked — and congressmen have <a href="https://twitter.com/davidcicilline/status/1347228936594477057" target="_blank">already</a> started circulating new articles of impeachment and <a href="https://twitter.com/RepJeffries/status/1347245549188239360" rel="noopener noreferrer" target="_blank">signaled</a> their support..<br></p><div id="67bef" class="rm-shortcode" data-rm-shortcode-id="ea9b7aa74c4bf8d6271685f2eb3620dc"><blockquote class="twitter-tweet twitter-custom-tweet" data-twitter-tweet-id="1347228936594477057" data-partner="rebelmouse"><div style="margin:1em 0">NEW: I am circulating Articles of Impeachment that @RepTedLieu, @RepRaskin and I have prepared to remove the Presid… https://t.co/qDlziqInBT</div> — David Cicilline (@David Cicilline)<a href="https://twitter.com/davidcicilline/statuses/1347228936594477057">1610039383.0</a></blockquote></div><p>The process here would be a truncated version of the first time Trump was impeached. The House hears evidence and votes on whether to impeach. A simple majority can get an impeachment. Then it goes to the Senate for trial, which needs a 2/3 vote to convict and remove the <a href="https://www.wonkette.com/white-house-staffers-shocked-shocked-to-find-their-boss-is-a-homicidal-maniac" target="_blank">homicidal maniac</a> from power.<br></p><p>A conviction in the Senate is far from a lock. Eight of those shitheads still objected to certifying the election <em></em>AFTER what happened yesterday. And Democrats don't officially get their Senate majority until January 20. But even Moscow Mitch seems pretty pissed off about what happened yesterday and it seems almost certain that we'd be able to get a couple more Republicans in addition to just Mittens (who last night tried to kill Josh Hawley using <a href="https://www.wonkette.com/mitt-romney-wants-to-teach-ted-cruz-josh-hawley-how-they-take-out-the-trash-in-utah" target="_blank">only his mind</a>). <br></p><p>With the images of Nazis looting the Capitol clear in people's minds, this shouldn't be a difficult thing. Of course, this is the bad place, so we have a federal legislature with the likes of Ted Cruz, Josh Hawley, and a shocking number of congressmen who are so far gone that they will never even try to see the light. But a lot of people — from Republican politicians to Trump sympathizers — are finally starting to realize what an absolute fucking shitshow they helped create. <br></p><p>We need to remember that this is about more than whether or not we can actually remove this dangerous loon from power; it's also about accountability. Yesterday, the President of the United States actively supported a crowd of loons taking over the Capitol in an attempt to stage a violent coup. "I'll be watching," he told them. "You'll never take back our country with weakness. You have to show strength and you have to be strong."<strong></strong></p><p>If there are no consequences for that, nothing matters anymore. Let's make Donald Trump go down in history as the only president to have been impeached twice — once less than two weeks before he was set to leave office, because he was just that dangerous.<br></p><h2>Expel the motherfuckers from Congress</h2><p><a href="https://www.wonkette.com/here-are-all-147-members-of-the-terrorist-inciting-gop-sedition-caucus-may-their-names-forever-be-stained" target="_blank">147 members of Congress</a> voted for an illegal coup d'état yesterday. This is entirely unacceptable behavior for ANY public official, particularly one who is charged with creating federal law.<br></p><p>And the Constitution explicitly permits the House and Senate to expel its members in Article I, section 5:<br></p><blockquote>Each House [of Congress] may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.</blockquote><p>Both the House and Senate have preexisting rules in accordance with this constitutional provision. Brand new Missouri Rep. Cori Bush is already on it, introducing a <a href="https://twitter.com/ScottImmordino/status/1347078204662685697" target="_blank">resolution</a> in the midst of yesterday's disaster — and she is absolutely in the right. Every single one of these shitheads who still voted for the putsch AFTER the terrorist attack should be immediately expelled from the chambers.<br></p><p>Some people think expelling every lawmaker who participated in or encouraged yesterday's attack is too extreme. To that, I <a href="https://twitter.com/BreeNewsome/status/1347234661794258944?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1347234661794258944%7Ctwgr%5E%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.wonkette.com%2Fr%2Fentryeditor%2F2649773980publish" target="_blank">say</a>:<br></p><div id="78cbf" class="rm-shortcode" data-rm-shortcode-id="6637e59cadd5cfd4c3233b3aa3c20c37"><blockquote class="twitter-tweet twitter-custom-tweet" data-twitter-tweet-id="1347234661794258944" data-partner="rebelmouse"><div style="margin:1em 0">Folks who think it’s reaching too far to say that every official who voted to overthrow state elections yesterday n… https://t.co/5MejoZ9s3W</div> — usa is a failed state (@usa is a failed state)<a href="https://twitter.com/BreeNewsome/statuses/1347234661794258944">1610040748.0</a></blockquote></div><p><br></p><h2>Welp<br></h2><p>Yeah. It's all fucked. Let's get these dangerous motherfuckers out of office as soon as we possibly can. Our country depends on it.<br></p><p>[<a href="https://www.nytimes.com/2018/09/06/us/politics/25th-amendment.html" target="_blank">NYT</a>]<br></p><p><em>Follow Jamie on <a href="https://twitter.com/jamielynncrofts" target="_blank">Twitter</a> for more hot takes on yesterday's stupidcoup.</em><br></p><p></p><p><a href="https://amzn.to/33mKzZe" target="_blank">Do your Amazon shopping through this link, because reasons</a>.</p><p></p><p></p><form name="donation" method="post" class="donation-form"><p class="subheadline">How often would you like to donate?</p><div class="form-row row--plan"><label class="plan-type__label"><input type="radio" name="plan_type" value="once" class="plan-type" required="" checked> Just once
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lawsplainer
Meanwhile, In Ohio, It's Mandatory Jazz Funerals For Your Abortion
Everything's great, why you asking?
January 07, 2021 01:20 PM
Meanwhile, in Ohio, funerals will now be required for abortions.
Our entire country is on fire. We are in the midst of an attempted coup (albeit a really fucking stupid one). Four thousand Americans died yesterday from COVID-19. The president is a raving lunatic who is trying to stage a coup from Twitter. Our country is in chaos. And the absolute geniuses in the Ohio statehouse decided their time would be best spent legally mandating funerals for abortions.
Last week, Ohio Governor Mike DeWine signed Senate Bill 27, to "impose requirements on the final disposition of fetal remains from surgical abortions." Those requirements? Byproducts from surgical abortions have to be buried or cremated and then disposed of in one of the manners set forth in the bill.
At least they limited the abortion funerals to surgical abortions, I guess? Though I'm just waiting for women to have to try to catch their menstrual blood when having a medical abortion. Or miscarriage. Or period. (Nothing like that for men and sperm, of course. That would be ridiculous.)
<p>Mike DeWine apparently spends a lot of time thinking about the best ways to dispose of fetuses. In 2016, when he was Ohio attorney general, he threw a fit and <a href="https://www.dispatch.com/article/20160107/NEWS/301079738" target="_blank">accused</a> Planned Parenthood of illegally "steam-cook[ing]" fetuses. (DeWine's stance on pressure-cooked and barbecued fetuses remains unclear.) The state of Ohio ended up having to <a href="https://thehill.com/policy/healthcare/281867-ohio-to-reimburse-planned-parenthood-nearly-50000-after-long-running" rel="noopener noreferrer" target="_blank">pay</a> Planned Parenthood's attorney's fees for DeWine's little stunt, after a court ordered a temporary restraining order against DeWine.</p><p>The law creates a misdemeanor for not cremating or burying the abortion in compliance with these rules. And if the abortion is cremated, that's not the end of things! The crematorium then must put the ashes "in a grave, crypt, or niche," or scatter them in a "dignified manner, including a memorial garden, at sea, by air, or at a scattering ground[.]" Ah yes, the Cleveland Memorial Abortion Garden for NOT Steam-Cooked Fetuses. Or perhaps a lovely burial at sea on Lake Erie for your abortion.</p><h2>... WHY?<br></h2><p>There are a few reasons anti-woman extremists push laws like this one. It's an attempt to shame women, obviously, but it's also so much more.</p><p>Like basically all abortion restrictions, its main purpose is to hurt both pregnant people and abortion providers. The more you shame people seeking abortions, the harder and more expensive you make it to terminate a pregnancy, the more people you can force to stay pregnant against their wills. </p><p>An important function of laws like this is making abortion more burdensome and expensive — for abortion providers and patients alike. This then drives up the cost of abortion, which makes it even more inaccessible than it already is. The cost of terminating a pregnancy — from travel to time off of work to the cost of the procedure itself — is already a huge obstacle for poor and working class women and pregnant people.</p><p>Ohio already had restrictive abortion laws that <a href="https://www.guttmacher.org/fact-sheet/state-facts-about-abortion-ohio" target="_blank">require</a> trying to talk people out of abortions, a waiting period, parental consent, a mandated ultrasound, and a 20-week ban. This will just make it even harder and more expensive to terminate a pregnancy in Ohio.<br></p><h2>Sorry, everything about this is bad<br></h2><p>Unfortunately, this is not the first law of its kind. Ohio's new steaming pile of walrus shit was <a href="https://www.npr.org/2020/12/04/943249413/ohio-passes-bill-requiring-fetal-abortion-remains-to-be-buried-or-cremated" target="_blank">reportedly</a> based on an Indiana law signed by then-Governor <a href="https://www.wonkette.com/mike-pence-compassionately-wants-to-nationalize-your-uterus" target="_blank">Mike Pence</a>, who thinks lady parts are icky and in need of government regulation. In 2019, the Supreme Court <a href="https://www.supremecourt.gov/orders/courtorders/052819zor_2dq3.pdf" target="_blank">upheld</a> Indiana's abortion funeral law, reversing a Seventh Circuit opinion striking the law down. However, the plaintiffs in <em>Box v. Planned Parenthood of Indiana</em> notably did <em>not</em> argue that the law placed an undue burden on a woman's right to obtain an abortion, and the Supreme Court specifically noted it was not making a ruling on those merits.</p><p>It's unclear whether any abortion providers or civil rights groups will challenge Ohio's new law in court. It seems unlikely, though, that any civil rights or reproductive healthcare organization would want to bring such a challenge right now. </p><p>It is very much not a good time to be litigating abortion rights in the US. With the addition of Amy Coat Hanger to the Supreme Court, the anti-woman wackjobs have a clear majority. John Roberts <a href="https://www.wonkette.com/supreme-court-saves-abortion-citing-legal-doctrine-of-we-f-cking-said-that-already-in-2016" target="_blank">saved our ass</a> last summer in <em>June Medical Services v. Russo</em>, upholding recent precedent finding medically irrelevant TRAP laws unconstitutional — but we have now reached the point at SCOTUS where even John Roberts can't save us. <br></p><p>With Amy Coney Barrett on the Court, we will be looking back with longing to the days of conservative Republican and W-appointee John Roberts, who gutted the Voting Rights Act and dissented in <a href="https://www.wonkette.com/supreme-court-says-we-are-all-gay-married-now-america-fck-yeah" target="_blank"><em>Obergefell</em></a>, being the swing vote on the Court. </p><p>I can say a lot of things about John Roberts and most of them aren't nice. But he cares about precedent (when it's not about Black people voting) and he cares about the reputation of the Court. We are now in a world where the liberals on the Court need both Roberts AND one of Kegs, Gorsuch, Alito (lol), Thomas (LOL), or a cult member who <a href="https://www.wonkette.com/if-amy-coney-barrett-writes-an-opinion-her-husband-doesnt-like-will-he-cut-off-her-finger" target="_blank">literally calls herself</a> a handmaid.<br></p><p>So ... yeah. I'm thinking abortion and reproductive rights advocates are going to want to stay as far as they can from the Supreme Court right now. Shithole states are going to keep trying to make abortion illegal and cases will almost certainly have to be brought to challenge the more extreme restrictions, like those super fun laws that basically try to <a href="https://www.wonkette.com/tennessee-pretty-much-banned-abortion-last-night" target="_blank">ban all abortion</a>. <br></p><p>So, for the foreseeable future, Ohio abortions will get legally mandated funerals. </p><p>Great.<br></p><p>I'll just be over here waiting for the laws requiring funerals for every lost spermatozoa.<br></p><p>[<a href="https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA133-SB-27" target="_blank">SB 27</a>]<br></p><p>Follow Jamie on <a href="https://twitter.com/jamielynncrofts" target="_blank">Twitter</a>, she's cool sometimes.<br></p><p></p><p><a href="https://amzn.to/33mKzZe" target="_blank">Do your Amazon shopping through this link, because reasons</a>.</p><p></p><p>Wonkette is ad-free and funded ONLY by YOU. 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Nice Time
Laura Loomer Laughed Out Of Court Again, This Time For Suing The Muslims
Some things stay the same.
December 30, 2020 03:25 PM
Laura Loomer is a professional bigot who thinks she is much more important than she is.
Her main claims to fame are handcuffing herself to Twitter's door and saying really terrible things about Muslims and immigrants. Oh, and she recently had an unsuccessful run for Congress.
Laura, the ultimate Florida Woman, likes to brag about being the "most banned woman" on the internet. And, indeed, she has been banned from platforms as diverse as GoFundMe, Uber and Lyft, Medium, Venmo, PayPal, Facebook, Instagram, and Medium for her horrific bigotry.
But, of course, sociopathic narcissists like Loomer can never accept that the consequences of their actions are their own doing. And in her sad, twisted little brain, not only was her ban from Twitter NOT FAIR — it was actually the work of Muslims, conspiring with Twitter to deplatform her. So she sued Twitter, the non-profit Council on American-Islamic Relations (CAIR), and CAIR's Florida affiliate.
Yesterday, the 11th Circuit Court of Appeals dismissed Illoominate Media v. CAIR Florida, ruling against Loomer on every argument she made on appeal. (And yes, just typing "iloominate" made me throw up a little in my mouth.)
The Southern District of Florida judge who dismissed the case called Loomer's claims "nonsensical" — and the 11th Circuit panel agreed. (Though I, for one, am SHOCKED that a complaint alleging CAIR and Twitter were working with Hamas and the Kingdom of Qatar to boot a wannabe Nazi influencer off of social media would not pass legal muster.)
I think the 11th Circuit judges had almost as much trouble taking Loomer seriously as the rest of us do. Here's how they describe her case:<blockquote>Twitter banned Laura Loomer, a self-described political activist and journalist, from using its platform in 2018. It claimed that one of her tweets violated its Terms of Service; Loomer tells a different story. She thinks that CAIR Foundation, a self-described Muslim civil rights group, conspired with Twitter and CAIR-Florida, one of CAIR Foundation's independent chapters, to ban her account. According to Loomer, the trio targeted her because they disagree with her political views.</blockquote><p class="shortcode-media shortcode-media-rebelmouse-image">
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</p><p>The judges' clear disdain for Loomer's bullshit only grows from there, with little jabs like "that too is wrong" and "Plaintiffs also seem to think" spread throughout the 12-page opinion. At one point, the opinion says, "The plaintiffs think the district court applied the wrong standard, but that's just not so."<br></p><p>Loomer had initially named Twitter as a defendant in this case before, apparently, just giving up. Her attorneys seem almost as good at lawyering as Rudy Guliani and Sidney Powell.</p><blockquote>Loomer and her company, Illoominate Media, sued CAIR Foundation, CAIR-Florida, John Does 1-5, and Twitter in Florida state court for violations of state law—though they never served Twitter or the John Does and eventually dismissed Twitter from the case.</blockquote><p>(Represented by superlawyer <a href="https://www.wonkette.com/no-wonkettes-not-giving-larry-klayman-75-000-larry" target="_blank">Larry Klayman</a>, Laura has also tried to sue Twitter and other tech companies for <a href="https://www.miaminewtimes.com/news/laura-loomer-files-3-billion-defamation-lawsuit-against-facebook-11215206" target="_blank">eleventy billion</a> dollars, but literally <em>three billion dollars. </em>The fantastic duo was, shockingly, <a href="https://www.courthousenews.com/federal-judge-shuts-down-right-wing-activists-free-speech-suit-against-social-media-companies/" target="_blank">unsuccessful</a>.)</p><p>This case is fucking ridiculous no matter what angle you look at it from. Which isn't shocking, considering the plaintiff was so fucking crazy that she was actually <a href="https://www.thedailybeast.com/anti-muslim-activist-laura-loomer-banned-from-cpac-after-harassing-reporters" target="_blank">banned from CPAC</a>. I think my favorite part, though, is that this entire conspiracy theory was based on a <a href="https://www.wonkette.com/laura-loomers-files-lawsuit-against-twitter-based-on-a-prank-someone-played-on-her" target="_blank">fucking prank</a>. Nathan Bernard and Chris Gillen spend their time pranking right-wingers, and they posed as Twitter employees and told her CAIR was behind her ban. The pair submitted affidavits for CAIR detailing what went down.</p><blockquote>The defendants, for their part, provided several sworn statements to buttress their claims that CAIR-Florida was fraudulently joined. In one, Nathan Bernard explained that this story originated as a prank. According to Bernard, he and Chris Gillen decided to convince Loomer that CAIR Foundation was the reason Twitter banned her account. Bernard stated that CAIR-Florida was not involved in their scheme and that they never mentioned CAIR-Florida to Loomer during the entirety of the prank. Other affidavits state that, prior to this lawsuit, no one at CAIR-Florida had spoken with CAIR Foundation about Laura Loomer or Illoominate Media and no one from CAIR-Florida had contacted Twitter about banning her account.</blockquote><p>But gods forbid Loomer ever admit she was wrong or back down from anything.<br></p><p>The court also held that Loomer had fraudulently named CAIR-Florida as a defendant in an attempt to keep the case out of federal court, saying</p><blockquote>To sum up, Plaintiffs offered nothing beyond vague speculation that CAIR-Florida was involved in the plan to ban Loomer from Twitter and did not rebut CAIR Foundation's contentions of fraudulent joinder. Because there is no possibility that the plaintiffs could prove a cause of action against CAIR-Florida, its joinder was fraudulent. </blockquote><p>and</p><blockquote>"The plaintiffs think the district court applied the wrong standard, but that's just not so [...] And contrary to what the plaintiffs might think, none of the allegations from their amended complaint support an inference that CAIR-Florida acted in concert with CAIR Foundation and Twitter to ban Loomer's account."</blockquote><div>The judges additionally found that the district court was right to dismiss the case without allowing Loomer to amend the complaint, saying it would have been "futile" to give the conspiracy theorist another chance to try to figure out how to state a claim against any of the defendants in the case.</div><div>Loomer and her lawyers Lauren X. Topelsohn, Ronald David Coleman, and Steven William Teppler of <a href="https://www.lawfirm.ms/" target="_blank">Mandelbaum Salsburg<span class="redactor-invisible-space"></span></a> (who also deserve to be publicly shamed for filing such a legally and factually baseless lawsuit) could file a cert petition, but this fever dream whirl of allegations is almost certainly a bridge too far — even for this Supreme Court (though I'm sure Thomas and Alito would be down).</div><div>I really want to see more sanctions in bullshit cases like this one. I hope CAIR's lawyers go back to the district court make Loomer and her lawyers pay its attorney's fees or make them sit through classes about cult deprogramming and how not to be an absolute fuckwad.</div><p>But for now, we can do a little happy dance that this particular case was sent to the trash, where it belongs.</p><p>Here's the opinion:<br></p><iframe class="scribd_iframe_embed" data-aspect-ratio="null" data-auto-height="true" data-rm-shortcode-id="fe71743854fb88b0e346f054eea0bc74" frameborder="0" height="600" scrolling="no" src="https://www.scribd.com/embeds/489458117/content?start_page=1&show_recommendations=true" width="100%"></iframe><p><br></p><p>Follow Jamie on <a href="https://twitter.com/jamielynncrofts" target="_blank">Twitter</a>. What's the worst that could happen?<br></p><p></p><p><a href="https://amzn.to/33mKzZe" target="_blank">Do your Amazon shopping through this link, because reasons</a>.</p><p></p><p>We like money. 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Post-Racial America
Trump Tried To Ban Teaching About Racism. Judge Says Eat Sh*t.
The First Amendment, motherfucker, can you dig it?
December 29, 2020 01:24 PM
With all of the absolutely batshit insane nonsense going on right now, it can be easy to lose sight of all of the other messes Trump created. Between stupid coup attempts, a Christmas Day suicide bomber in downtown Nashville, and the president's Twitter account, there's just a lot of shit to keep track of. So you may have almost missed this nice little present we got last week.
Just in time for Christmas, Northern District of California Judge Beth Labson Freeman gave us a shiny, beautiful gift — a nationwide injunction stopping Donald Trump's diversity training ban.
In The Diversity Center of Santa Cruz v. Trump, Judge Labson Freeman found that the organizations challenging Trump's bigoted fuckery had shown that they were likely to win their First and Fifth Amendment claims and were entitled to a preliminary injunction blocking the insane, racist policy.
Suck it, Nazis.
<h2>Here's the deal</h2><p>Back in September, Trump signed <a href="https://www.wonkette.com/trump-bans-diversity-training-in-the-name-of-diversity" target="_self">Executive Order 13950</a>, which prohibited the military, federal agencies, and federal contractors and grantees from conducting what he called "divisive, un-American propaganda training sessions." And no, he wasn't talking about his legal team's press conferences. He was talking about the concept that <em>racism in America exists.</em></p><div>The order is, as expected, <a href="https://www.wonkette.com/trump-bans-diversity-training-in-the-name-of-diversity" target="_blank">fucking insane</a>. It bans "all contracts or other agency spending related to any training on 'critical race theory,' 'white privilege,' or any other training or propaganda effort that teaches or suggests either (1) that the United States is an inherently racist or evil country or (2) that any race or ethnicity is inherently racist or evil." And it goes so far as to mandate that all federal contractors agree to not "use any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating," including the enumerated "divisive concepts[,]" even when using their own funds to train their own employees on things that have nothing to do with their federal contracts or grants. It also claims that critical race theory is "inherently sexist and racist" and "perpetuates racial stereotypes and division and can use subtle coercive pressure to ensure conformity of viewpoint."<br></div><div><p>The scope of the order was discussed at the <a href="https://www.courthousenews.com/federal-judge-halts-trump-diversity-training-limits-on-contractors/" target="_blank">hearing</a>.<br></p><blockquote>"They say intersectionality can't be taught, but that is what our clients do," Douglas Hallward-Driemeier, attorney for the plaintiffs, told Labson Freeman during a recent hearing. "They teach the intersections of race, gender and sexual orientation in order to show the systemic biases against the marginalized communities they serve."</blockquote></div><div>The Department of Labor — run by <a href="https://www.wonkette.com/eugene-scalia-confirmed" target="_blank">Eugene Scalia</a> — even <a href="https://www.dol.gov/agencies/ofccp/faqs/executive-order-13950" target="_blank">created</a> a new hotline for people to report "race and sex stereotyping and scapegoating." The Labor Department has also <a href="https://www.usatoday.com/story/money/2020/12/17/trump-diversity-training-ban-challenged-elizabeth-warren-democrats/3932786001/" target="_blank">said</a> that ending the teaching of concepts like systemic racism is "a key civil rights priority of the Trump Administration." Because this is the bad place.</div><p>In the wake of the order, Trump's Office of Management and Budget (OMB) Director Russell Vought issued a <a href="https://www.whitehouse.gov/wp-content/uploads/2020/09/M-20-37.pdf?fbclid=IwAR1ROlh-SlDNPp4wbmVH7kkguF3SWKUc59xbckWkP6ZalkSoNY6RwbOm4ps" target="_blank">memo</a> directing agencies to look for terms like "critical race theory," "white privilege," "intersectionality," "systemic racism," "positionality," "racial humility," and "unconscious bias" to see if trainings "teach, advocate, or promote the divisive concepts specified" in the order.</p><div>This executive order is pretty clearly and straightforwardly a content-based ban on speech that is protected by the First Amendment. Its entire purpose is to stifle speech!</div><p>As expected, the order has already <a href="https://www.newsweek.com/dems-say-trumps-critical-race-theory-ban-ended-most-federal-diversity-training-1555025" target="_blank">ended</a> most diversity training in some federal agencies. And private businesses and universities who contract with or receive grants from the federal government <a href="https://www.npr.org/2020/10/30/929165869/agencies-contractors-suspend-diversity-training-to-avoid-violating-trump-order" target="_blank">canceled</a> or suspended various diversity training programs.<br></p><h2>No. Just no.<br></h2><p>For now, the order can't be enforced against any federal contractors or grantees — nationwide. Yay!<br></p><p>The plaintiffs include a number of different organizations that work with and advocate for LGBTQ+ people and people who are living with or vulnerable to HIV, and an organization that trains people on the Prison Rape Elimination Act. All of the organizations conduct trainings — for their employees and for clients — that may or may not go afoul of Trump's executive order. They want to continue to train people on concepts like discrimination and implicit bias, but fear they will lose funding and their federal contracts. <br></p><p>The plaintiffs alleged that the order illegally restricts their free speech, in violation of the First Amendment. Because OBVIOUSLY IT DOES, THAT WAS THE ENTIRE POINT. Judge Labson Freeman agreed, finding the organizations are likely to win their case and temporarily stopping the government from enforcing the EO.</p><p>It's insane that this is even up for debate in 2020, but here we are. Thankfully, the judge found that conditioning federal grants and contracts on complying with the order "clearly would constitute a content-based restriction on protected speech." Content-based and viewpoint-based restrictions on speech are almost always unconstitutional; the government doesn't get to dictate what people and organizations say.</p><div>The court also noted that the order puts higher education institutions at risk of losing their federal funding. Federal funding is vital to university research, and on its face, Trump's order requires that universities and college that get federal grants (read: all of them) stop teaching the concepts that Trump and Stephen Miller have deemed "propaganda" — even when the purpose of a grant has absolutely nothing to do with the speech Trump doesn't like. The order didn't even make exceptions for university courses.</div><div>But, as Judge Labson Freeman held,</div><blockquote>"Requiring federal grantees to certify that they will not use grant funds to promote concepts the Government considers 'divisive,' even where the grant program is wholly unrelated to such concepts, is a violation of the grantee's free speech rights.</blockquote><p>But that's not all! Judge Freeman also found that the plaintiffs were likely to win their due process claims. When the government makes something illegal, it has to be clear about what, exactly it's making illegal — especially when the restriction in question limits free speech or expression. If a law is too vague or ambiguous, people can't reasonably determine what conduct or speech is actually illegal. Judge Freeman found that the order was so unclear that it did not give fair notice of what, exactly, is prohibited. </p><p>The organizations challenging the order conduct training on unconscious bias and implicit bias that are critical to their work — and they really can't tell if their trainings run afoul of the EO or not. And the government's attempts to clarify Trump's ramblings have only made things even more confusing. For example, the Labor Department's <a href="https://www.dol.gov/agencies/ofccp/faqs/executive-order-13950" target="_blank"><u>FAQ section</u></a> about EO 13950 says that implicit bias training is prohibited if it "teaches or implies" that a person, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously — but such training is allowed if it is to "inform[] or foster discussion, about pre-conceptions, opinions, or stereotypes" that people have. Just figure out what counts as "teaching or implying" and what counts as "informing"! nbd!</p><h2>Good! But ...<br></h2><p>Unfortunately, the executive order remains in place for federal agencies.</p><p>Judge Labson Freeman held that the federal contractors and grantees challenging the order didn't have <a href="https://www.wonkette.com/emoluments-clause-standing" target="_blank">standing</a> to get an injunction on behalf of federal agencies. Noting that "the Government has a legitimate interest in controlling the scope of diversity training in the federal workforce and can limit the expenditure of federal funds[,]" the court limited its order to federal contractors and grantees. The NAACP, National Urban League, and National Fair Housing Alliance have also <a href="https://www.naacpldf.org/wp-content/uploads/1-Complaint-2.pdf" rel="noopener noreferrer" target="_blank">sued</a> over the order in federal court in DC, but that case will likely be similarly limited.</p><p>And things at federal agencies have already gotten even worse since Trump signed this bullshit order. Last week, DOJ <a href="https://www.npr.org/2020/12/23/949384358/doj-whistleblowers-call-for-investigation-into-canceled-diversity-programs" rel="noopener noreferrer" target="_blank">whistleblowers</a> sent a letter to the House, Senate, Office of Special Counsel, and Office of the Inspector General, saying the Trump diversity directives "cannot and must not stand."</p><p>The whistleblowers say that Trump's anti-diversity directives "are already having their intended effect: they compel the prohibition or significant chilling of diversity-related speech across the entire federal workforce." This is abundantly clear at the Justice Department, which has <a href="https://www.npr.org/2020/12/23/949384358/doj-whistleblowers-call-for-investigation-into-canceled-diversity-programs" rel="noopener noreferrer" target="_blank">already</a> had to cancel events about the "gender leadership gap" at the Department and the issue of implicit bias in law enforcement.</p><h2>What now?<br></h2><p>With a little luck, this particular chapter in our national nightmare is almost over — Joe Biden is comin' to town and all of this litigation will hopefully soon be moot. <br></p><p>The incoming Biden administration is <a href="https://www.usatoday.com/story/money/2020/12/17/trump-diversity-training-ban-challenged-elizabeth-warren-democrats/3932786001/" target="_blank">widely expected</a> to rescind this horseshit. Biden and Harris campaigned on <a href="https://buildbackbetter.gov/priorities/racial-equity/" target="_blank">racial equity</a> and coming to terms with systemic and institutional racism. It's very hard to imagine the incoming Democratic administration — with a Black woman who champions diversity as veep — will allow this to stand.</p><p>Just another reason January 20 can't get here soon enough.<br></p><p><br></p><p><br></p><p>Here's the order:<br></p><iframe class="scribd_iframe_embed" data-aspect-ratio="null" data-auto-height="true" data-rm-shortcode-id="40bf6b6e7a51bb76fd5082f31e6eba5e" frameborder="0" height="600" scrolling="no" src="https://www.scribd.com/embeds/489299806/content?start_page=1&show_recommendations=true" width="100%"></iframe><p><br></p><p>[<a href="https://www.whitehouse.gov/presidential-actions/executive-order-combating-race-sex-stereotyping/" target="_blank">EO 13950</a> / <a href="https://www.dol.gov/agencies/ofccp/faqs/executive-order-13950" target="_blank">Dept of Labor</a> / <a href="https://www.wonkette.com/trump-bans-diversity-training-in-the-name-of-diversity" target="_blank">Yr Wonkette</a>]<br></p><p>Follow <a href="https://twitter.com/jamielynncrofts" target="_blank">Jamie</a> on Twitter, duh.<br></p><p></p><p><a href="https://amzn.to/33mKzZe" target="_blank">Do your Amazon shopping through this link, because reasons</a>.</p><p></p><p></p><form name="donation" method="post" class="donation-form"><p class="subheadline">How often would you like to donate?</p><div class="form-row row--plan"><label class="plan-type__label"><input type="radio" name="plan_type" value="once" class="plan-type" required="" checked> Just once
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