A hard day.

January 14, 2022

[Audio version here]

          Thursday was a hard day for everyone who worked to flip both chambers of Congress and elect Joe Biden.  Those victories naturally raised hopes that Democrats would reverse Republican efforts to deprive some citizens of their right to participate equally and fully in the life of our democracy.  On Thursday, Senators Sinema and Manchin reiterated their opposition to modifying the filibuster, ending efforts to pass voting rights legislation in 2022.  The setback is temporary but is a bitter loss for those who have worked for years to overcome the anti-democratic tyranny of the filibuster and undo the unfair burdens placed on minority voters living in Republican-controlled states.

          Democratic activists and concerned citizens are experiencing understandable feelings of anger and disappointment.  Journalists will seek to inflame recrimination and second-guessing in search of soundbites for the evening news.  But most importantly, minority voters must continue to navigate obstacles designed to deny them the freedom to vote in the same manner as all other Americans.

          Thursday was a hard day, and we should not pretend otherwise.  There is no room for false bravado or feigned cheer, but neither should we entertain exaggerated visions of doom or surrender to defeatism.  Every successful civil rights bill was preceded by years of setbacks.  Like our predecessors in the struggle for civil rights, we must recognize the difference between temporary setbacks and final defeat.  We will prevail, and Republicans know that to their very core.  That is why they are sparing no effort to delay the day when the full promise of the Constitution is realized—and Republicans forever relinquish their role in governing a free and democratic society.

          It is right to feel anger because fifty Republicans and a handful of Democrats have acted dishonorably.  They have violated their oaths to the Constitution and breached the trust of their constituents.  We must channel that anger into action that will change the unfair system that allowed this unjust result to occur.  Senator Schumer must force a vote on the Senate floor so that Democrats understand who exalts Senate procedure over the rights guaranteed by the Constitution.  That may be an uncomfortable vote for some.  Still, neither they nor we should fear the truth or regret the political consequences that flow from knowing whether our elected representatives stand for the Constitution or against it.

          There are many lessons to be learned from this failure.  But the most important is that we cannot expect victory if we grant the president only a theoretical majority in the Senate.  We must give the president a working majority that does not require 100% unity among Democrats on every vote to pass legislation.  

          Joe Biden did not fall short.  We fell short in 2020 by achieving the smallest possible majority in the Senate.  But the good news is that we have an upcoming election to correct that deficit.  The lesson we must take from this hard day is not that our efforts were in vain, but that even more is expected from us if we are to prevail.  Those words may not be welcome on this day of disappointment, but pity is a luxury we cannot afford.

          When John Lewis awoke in the hospital after Bloody Sunday in 1965, he must have slowly realized that his skull had been fractured and his body bruised by clubs and whips wielded by police officers acting under color of law.  He could have said, “I give up.  This is too hard.” He did not.  Three weeks later, he was marching again on the same route, this time with Dr. Martin Luther King, Jr. and thousands more.  

          Yes, Thursday was a hard day for us.  But it does not begin to compare to the horrors endured by our predecessors in the effort to extend the promise of democracy to all.  We are following in their footsteps, and we must emulate their unyielding resolve to continue the struggle despite setback, loss, and disappointment.  They did not give up on us, and we must not give up on them.

 The Supreme Court’s mixed ruling on vaccine mandates.

          On Thursday, the Supreme Court allowed a vaccine mandate for healthcare workers to go into effect but upheld a preliminary injunction against a mandate for vaccines (or tests) by employers with more than 100 employees.  The employer-mandate opinion is here: “National Federation of Independent Business v. OSHA.” The decision in the OSHA case makes clear that the reactionary majority has abandoned all pretense of being “originalists” or “textualists” and has instead appointed itself as an appendage of the Republican caucus in Congress.  Let me explain—but here is the short version: The reactionary majority (once again) ignored precedent, ignored the plain text of the law, and instead fabricated a heretofore unannounced rule to justify its holding.

          OSHA issued the mandate under a grant of authority from Congress.  In issuing the mandate,  

OSHA drew on a federal law that allows the agency to protect employees from a “grave danger” resulting from “physically harmful” “agents” or “new hazards.”

See Mark Joseph Stern, “The Supreme Court Had No Legal Reason to Block Biden’s Workplace Vaccine Rules--So it Made One Up.”

          Given that Covid-19 is a “new hazard” that presents a “grave danger” to employees, the authority of OSHA to issue a rule to address that danger seems unambiguous on the face of the statute.  But as explained by Stern in the Slate article above, the Court created a new barrier to OSHA’s right to protect workers from danger:

The majority invented a distinction between hazards that occur solely in the workplace and hazards that occur in and out of the workplace.  Because the pandemic exists outside the workplace, it is not the kind of “grave danger” envisioned by the statute, and “falls outside OSHA’s sphere of expertise.”

          The distinction between hazards that exist “solely in the workplace” and those that exist inside and outside the workplace is a distinction that appears nowhere in the authorizing statute and has, until now, never appeared in federal jurisprudence.  It also appears to be patently false that OSHA regulates hazards that exist “solely” in the workplace.  See, e.g., OSHA Fact Sheet: Hepatitis B Vaccination Protection, and OSHA Standard 1926.100, Head protection from impact, falling debris, and shock.  Obviously, Hepatitis B and risk of head injury from impact do not exist “solely in the workplace.” That fact has not prevented OSHA from issuing regulations previously and should not have done so here.  As Stern writes,

          Notice something unusual about [the majority’s] analysis?  The dissenters certainly did: It is utterly untethered to the plain text of the law, which obviously encompasses OSHA’s rule.  In a rare joint dissent, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan . . . wrote [that] the majority imposed “a limit found no place in the governing statute.”

          So, the reactionary majority are died-in-the-wool “textualists”—except when they are not.  The new majority on the Supreme Court is unbounded by precedent, law, logic, or consistency.  I will say it again: Unless we act urgently to dilute the power of the illegitimate reactionary majority on the Court, they will serve as an adjunct to the social, religious, and anti-science agenda of the Republican Party.  As usual, the only obstacle blocking reform of the Supreme Court is the filibuster.

          What can you do?  Call your Senators and Representatives and tell them that Congress must expand the Supreme Court by passing the Judiciary Act of 2021 as a first step to reestablishing the rule of law and the supremacy of the Constitution.  You can reach your congressional representatives by following the links in Chop Wood, Carry Water 12/10 - by Jessica Craven

The DOJ indicts Oath Keepers for “seditious conspiracy.”

          The DOJ indicted eleven members of the Oath Keepers for seditious conspiracy for attempting to “oppose by force the execution of the laws governing the transfer of presidential power by Jan. 20, 2021.” The indictment is here: United States v Rhodes.  The DOJ press release is here: Indictment of Oath Keepers.  The charge for seditious conspiracy is significant because (a) it alleges that the conspiracy began on November 3, 2020—the day of the 2020 election, and (b) not every defendant named in the indictment entered the Capitol on January 6, 2021.

          Under the law of conspiracy, a co-conspirator does not have to participate in every act of the conspiracy to be charged as a co-conspirator.  For example, those who helped plan, fund, facilitate, or recruit for the conspiracy can be criminally liable.  Republican members of Congress and donors who funded the “Stop the Steal” rally should be “lawyering-up” and taking a hard look at their messaging apps for the days between the November election and the Inauguration.  

          And, of course, the indictment brings the DOJ one step closer to Trump.  Four Oath Keepers have cooperated with the DOJ thus far.  Let’s hope that other Oath Keepers cooperate by identifying those in Congress or the executive branch who encouraged, funded, or facilitated their conspiracy.

Podcast this weekend with The Civics Center.

          Each year, nearly 4 million high school seniors become eligible to vote.  Most high school seniors are never asked to register, much less vote.  But The Civics Center is laser-focused on that mission.  On Saturday, January 15th, at 2 PM Eastern /11 AM Pacific, I will talk with Laura Brill, the Founder of The Civics Center, which promotes student-led registration drives. 

          Listen live and participate in the podcast on Saturday through the Callin app (on iPhone or iPad; Android version coming soon).  Follow @roberthubbell or subscribe to Today’s Edition Podcast to listen.  For those with the Callin app, the link to the podcast is here: Today’s Edition Podcast, The Civics Center with Laura Brill.  If you can’t listen live, a link to the recorded podcast will be published in Monday’s newsletter.

Concluding Thoughts.

           Do not let exhaustion, anger, or imagined fears control your outlook for the future.  After a year of hope that voting rights legislation would pass, the disappointment of today is fresh.  Take a break over the weekend (if you need it) and resolve to return to the struggle on Monday.  John Lewis took only three weeks to recover from a fractured skull to join Martin Luther King, Jr. on a 54-mile march from Selma to Montgomery.  We should be able to recover from our understandable disappointment much more quickly.  We are in this fight not only for our fellow citizens, but for future generations.  We cannot let them down.  Over the weekend, relax, reflect, and recharge—we need you for the long-term!  Stay strong, and do not lose hope!

          Talk to you on Monday!