Federalist Society-Packed Courts Rule Against Biden Administration as Utah GOP Attempts Power Grab
Lots of court updates, plus RNC asks SCOTUS to disenfranchise Arizona voters, Utah GOP now in special session to override state Supreme Court, and RFK Jr. may drop out and endorse Trump
Federalist Society-Packed Courts Rule Against Biden Administration as Utah GOP Attempts Power Grab
There’s a ton of updates in the courts, as well as some activity by the Republican Party in Utah and Arizona to override the courts. Here’s a roundup of what’s going on right now.
Watch this space: RFK Jr. plans to make an announcement about his presidential campaign on Friday
After growing speculation, Independent presidential candidate Robert F. Kennedy Jr. announced that he will confirm on Friday where his campaign goes from here. Many expect him to drop out of the race and endorse Donald Trump as recent reporting has detailed conversations he’s had with Trump asking for a cabinet position in exchange for his endorsement.
Federalist Society Judge in Texas blocks FTC’s ban on noncompete agreements
On Tuesday, U.S. District Judge Ada Brown for the Northern District of Texas who is a Federalist Society member, blocked the Federal Trade Commission’s (FTC) ban on noncompete agreements from going into effect nationwide. These types of agreements hinder workers’ ability to join competitors or start competitive businesses. In a 1-page opinion, the partisan ideologue in black robes granted summary judgment in favor of the corporate tax firm, Ryan LLC, which is valued at $2.5B, and denied the FTC’s motion for summary judgment. The judge agreed with the tax firm’s argument, ruling that “the FTC lacks substantive rulemaking authority with respect to unfair methods of competition” and that the agency’s rule prohibiting noncompete agreements is “unreasonably overbroad without a reasonable explanation,” and would “cause irreparable harm.” She added, "The role of an administrative agency is to do as told by Congress, not to do what the agency think[s] it should do.” The FTC plans to appeal to the 5th Circuit Court of Appeals.
Utah GOP to attempt to override state Supreme Court in blatant power grab
On Tuesday, Utah’s GOP supermajority-controlled state Legislature called for an emergency special session on Wednesday to override the state Supreme Court. Because the GOP needs gerrymandering power to maintain party control over the state, it seeks to reverse the unanimous state Supreme Court decision in July that ruled the GOP-controlled Legislature exceeded its authority by passing a law that gutted a 2018 voter-approved ballot initiative establishing an independent redistricting process. The Legislature’s bill limited the power of the commission to ensure its role wasn’t legally binding. The state Supreme Court found that the bill violated Utahn’s rights to reform their government through referendums.
Wednesday’s special session will focus on approving a constitutional amendment ballot initiative that will ask voters to give the Legislature the authority to rewrite or repeal voter-approved ballot initiatives whenever it wants. This special session was scheduled because of pressure by several MAGA figures and far-right organizations, including Eagle Forum, which was founded by Phyllis Schlafly—the lady responsible for blocking the ratification of the Equal Rights Amendment—and the Sutherland Institute, a think tank affiliated with ALEC, another think tank that is a sponsor of Project 2025 and funded by Charles Koch’s dark money network.
The session was scheduled for 1pm local time, but, as of publishing this newsletter, SB4002 and SB4003 have not been voted on yet.
Trump-owned RNC asks SCOTUS to intervene in Arizona voter suppression case
On Monday, the Republican National Committee (RNC) asked the Supreme Court to intervene in its legal challenge against voting rights. The Trump-owned entity requested the high court to issue an emergency ruling by Thursday, allowing a 2022 Arizona state voter suppression law to stand. The law at issue, which was passed by the GOP-controlled state Legislature, required Arizonans to show “documentary proof” of citizenship before being allowed to register to vote. It also bars “federal only” voters from voting by mail or from voting for presidential candidates and mandates that the state reject new voter registrations submitted via Arizona’s voter registration form that do not include proof of citizenship. Only federal voter registrations would be accepted under the 2022 law.
The state law has never been enforced, but the RNC sued, arguing that federal law cannot supersede “the Arizona Legislature’s sovereign authority to determine the qualifications of voters.” Spoiler alert: Federal law can and does supersede state law and 7 courts have blocked the 2022 voter suppression law. Arizona Secretary of State Adrian Fontes said that a SCOTUS ruling allowing the law to go into effect could block 41K registered voters in Arizona from voting in the 2024 presidential election—a majority of them would be military members, students, and Native Americans.
SCOTUS leaves lower court blocks on Title IX protections for LGBTQ students intact
In a 5-4 decision on Friday, the Supreme Court rejected the Biden administration’s request to temporarily enforce the majority of a new rule that expands Title IX protections to LGBTQ+ students as the appeals process makes its way through the courts. There are currently 2 separate lawsuits brought by 2 coalitions of GOP-controlled states challenging all three provisions of the rule. The first provision states that sex discrimination covers gender identity; the second expands the definition of “hostile-environment harassment” to cover gender identity; and the third clarifies that violations of Title IX include barring transgender students from using campus facilities consistent with their gender identity. SCOTUS’ decision upholds 2 lower court orders blocking the Department of Education from enforcing the rule in 10 states—Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Virginia, and West Virginia.
In the dissent written by Justice Sonia Sotomayor and joined by Justices Elena Kagan, Neil Gorsuch, and Ketanji Brown Jackson, Sotomayor called the lower court orders “overbroad” and noted that the injunctions will “burden the Government more than necessary.” She wrote, "By blocking the Government from enforcing scores of regulations that respondents never challenged and that bear no apparent relationship to respondents' alleged injuries, the lower courts went beyond their authority to remedy the discrete harms alleged here."
In a 3-page unsigned opinion, the Supreme Court agreed that the rule should remain on hold for now, including the newly expanded definition of sex discrimination to “include discrimination on the basis of sexual orientation and gender identity.” The court explained that the government did not provide “a sufficient basis to disturb the lower courts’ interim conclusions that the three provisions likely to be unlawful are intertwined with and affect other provisions of the rule.” It also concluded that the government did not identify which provisions are independent of the new definition of sex discrimination, which would warrant a stay. The high court also noted that one of the appeals courts has granted a fast-track of the government’s appeal.
Federalist Society-packed 8th Circuit Court blocks Biden administration’s student loan forgiveness program
On August 9, a 3-judge panel on the 8th U.S. Circuit Court of Appeals granted a preliminary injunction that bars the Biden administration from implementing the Saving on a Valuable Education (SAVE) Plan to cancel student loan debt. This order expands on the court’s July 18 decision temporarily blocking parts of the SAVE plan, but 7 GOP-controlled states asked the court to block the entire program from being applied to student loan cancellations and to make the order retroactive, which would reinstate debts owed by those whose loans were already forgiven. That’s right. The Republican Party wants to permanently burden Americans with predatory student loan debt and the legal effort is led by Federalist Society member and Missouri Attorney General Andrew Bailey.
The judges on the panel are also far-right ideologues picked by the Federalist Society. They include George W. Bush appointed Raymond Gruender and 2 Trump appointees, L. Steven Grasz and Ralph Erickson. Note that Erickson sits on a stolen bench seat thanks to Senator Mitch McConnell who blocked President Obama’s nominations, including Jennifer Puhl whom he nominated for the 8th Circuit. McConnell’s scheme left a seat vacant until Trump was installed in 2016.
Bailey and his cohort of Federalist Society attorney generals sued the Biden administration in April, arguing that the Department of Education had exceeded its legal authority by enacting the student debt relief plan. Earlier this month, the 8th Circuit granted most of what the MAGA attorneys general asked for with a broad and arbitrarily worded order that the DOE asked the court to clarify what the order entails. Even though Bailey also agreed with the DOE’s motion, the 8th Circuit issued an order on Monday denying the request with no explanation. This means that the Biden administration is barred from canceling student loans under any program for those who are enrolled in the SAVE plan. The DOE has appealed to the Supreme Court, asking it to reverse the injunction as the appeals process proceeds.