SCOTUS Shoots Down the ‘Independent State Legislature’ Theory

Happy Wednesday! A recent UBS Group study estimates Americans will spend nearly $400 million tending to pickleball injuries this year.

If you can’t take the heat, get out of The Kitchen.

Quick Hits: Today’s Top Stories

• Belarusian President Alexander Lukashenko said Tuesday that Wagner leader Yevgeny Prigozhin had arrived in Belarus, fulfilling one aspect of the reported deal between Prigozhin and the Kremlin to end Wagner mercenaries’ mutiny over the weekend. Officials with the Russian Ministry of Defense said Wagner forces were preparing to hand over heavy weaponry by July 1, even as Russian Foreign Minister Sergei Lavrov said Wagner’s activities in Africa would continue. Meanwhile, the U.S. Treasury Department’s Office of Foreign Asset Control on Tuesday announced sanctions targeting the illicit gold dealings used to fund Wagner activity around the world.
• A Russian missile on Tuesday struck a busy commercial area of Kramatorsk—a city in eastern Ukraine about 18 miles from the front lines—killing at least eight people, including three children, and injuring 56 others. “Russia deliberately targeted crowded areas,” said Ihor Klymenko, Ukraine’s minister of internal affairs. A separate missile also struck a village on the outskirts of the city on Tuesday, injuring five.
• The Supreme Court ruled 7-2 on Tuesday in favor of a Colorado man convicted of cyberstalking, raising the bar for prosecuting people accused of threatening others. In her majority opinion, Justice Elena Kagan wrote that, although “true threats” are not protected speech under the First Amendment, prosecutors must prove that a defendant recklessly disregarded the risk that his actions could be seen as threats of violence. Meanwhile, the high court also agreed Tuesday to take up a case questioning the bounds of Congress’ authority to levy taxes, which could stymie some of Democrats’ most ambitious tax proposals. 
• The Biden administration announced Tuesday it would send $500 million in additional military aid to Ukraine through the presidential drawdown authority, which transfers materiel from existing Defense Department stockpiles. The package is aimed at making up for weapons lost in combat, and includes Bradley and Stryker armored vehicles, munitions for air defense systems, ammunition, and other equipment.
• The Justice Department announced Tuesday it had arrested four Mexican nationals in connection with the June 2022 human smuggling incident in southern Texas that left 53 migrants dead after being trapped in the back of a tractor-trailer. The driver of the trailer—as well as another man—had been arrested shortly after the migrants were found; the four men arrested this week were allegedly involved with the operation’s planning and charged with, among other things, conspiracy to transport illegal aliens resulting in death.
• Businessman and former Navy Seal Tim Sheehy announced Tuesday he plans to run for U.S. Senate in Montana, entering the Republican primary in a bid to challenge incumbent Democratic Sen. Jon Tester in 2024. GOP Sen. Steve Daines, Montana’s junior senator and chair of the National Republican Senatorial Committee, endorsed Sheehy immediately, possibly in an effort to dissuade Rep. Matt Rosendale—a hardline member of the House Freedom Caucus—from jumping into the race.

SCOTUS Comes Back for Moore

Election law scholars will tell you the most important thing about yesterday’s Supreme Court ruling in Moore v. Harper is that the justices rejected a legal theory which could have given state legislatures broad leeway to set federal election rules without state judicial oversight.

Don’t listen to election law scholars. The most important thing about yesterday’s majority opinion is that it included this fun fact: The word “gerrymander” is a portmanteau of Gerry and salamander, named for then-Massachusetts Gov. Elbridge* Gerry, who in 1812 signed a bill creating a voting district shaped like the amphibian. 

Salamanders aside, Moore v. Harper concerns congressional district maps drawn up by North Carolina’s Republican-controlled legislature after the 2020 Census. Democratic plaintiffs challenged the maps in 2021, claiming they were political gerrymanders and violated the state constitution. The state’s Supreme Court backed the plaintiffs and ultimately appointed three experts to redraw the congressional districts, so Republican lawmakers in North Carolina appealed to the Supreme Court, arguing the U.S. Constitution’s Elections Clause gives state legislatures—and state legislatures alone—power to set federal elections rules. 

Known as the “independent state legislature theory,” this argument would restrict state courts’ ability to review states’ federal election rules, even to enforce state constitutions. John Eastman relied on a more extreme version of this theory to argue to the Trump administration that state legislatures could dismiss Biden-supporting slates of electors and replace them with Trump-supporting ones. 

SCOTUS rejected the independent legislature argument 6-3, with Chief Justice John Roberts writing the majority opinion that was joined by Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson. “When state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review,” Roberts held. “When a state legislature carries out its federal constitutional power to prescribe rules regulating federal elections, it acts both as a lawmaking body created and bound by its state constitution, and as the entity assigned particular authority by the federal Constitution. Both constitutions restrain the state legislature’s exercise of power.”

But Roberts made clear state courts can’t rewrite federal election rules willy-nilly: “State courts may not transgress the ordinary bounds of judicial review.” Nodding to the Supreme Court’s decision in 2000 to overrule a state court in Bush v. Gore, Roberts suggested federal courts will step in if state courts violate “the clearly expressed intent of the legislature” and “impermissibly distort” the legislature’s enactments “beyond what a fair reading required.”

This limit has caused a bit of head-scratching, as Roberts’ opinion declined to provide any sort of guidance on what it means in practice—even sidestepping a ruling on whether North Carolina’s court overstepped its bounds. “They could have ruled states can’t do whatever they want, but North Carolina’s Supreme Court went too far, they can’t draw maps,” says Josh Blackman, associate professor of law at the South Texas College of Law Houston. “That could’ve been a very significant ruling—but they didn’t do that.”

Justice Clarence Thomas was critical of this vagueness. After arguing SCOTUS shouldn’t have decided the case in the first place—the North Carolina Supreme Court has changed partisan hands and overturned the decision that sparked the case, in Thomas’ view rendering it moot—he noted the lack of guidance for federal courts providing oversight to state courts. “The majority’s advice invites questions of the most far-reaching scope,” Thomas wrote in his dissent, joined wholly by Justice Neil Gorsuch and on the mootness point by Justice Samuel Alito. “What are ‘the bounds of ordinary judicial review’? What methods of constitutional interpretation do they allow? Do those methods vary from state to state? And what about stare decisis—are federal courts to review state courts’ treatment of their own precedents for some sort of abuse of discretion?”

Mostly, Thomas predicted, federal courts will defer to state courts’ judgments—cluttering federal dockets, but avoiding too much federal meddling. But he noted the exceptions to that norm will likely be highly contested, time-sensitive election cases—a scenario in which judges would prefer to rely on existing standards rather than hammer out the practical implications of vague SCOTUS guidelines to reach decisions that could immediately alter electoral outcomes. “Judging from the majority’s brief sketch of the regime it envisions,” Thomas wrote, “I worry that today’s opinion portends serious troubles ahead for the judiciary.”

Thomas isn’t alone in worrying about the ambiguities surrounding the majority decision. “When it’s extremely clear which side is likely to win or lose from a court decision because they’re deciding things in the midst of an actual election, it’s inevitable, almost, that the losing side is going to perceive the [federal court] acting in partisan ways,” says Richard Pildes, a professor of constitutional law at New York University. “The court brought some important, needed clarity to this area with the decision, but they also left an area of uncertainty that is definitely going to get exploited by candidates and political parties in the 2024 elections.”

Others take a more hopeful view, pointing out that SCOTUS has slammed the door on Eastman’s argument and other extreme independent state legislature interpretations, which many feared could have invalidated court-reviewed elections rules in favor of nakedly partisan rules set by state legislatures to benefit the party in power. “Of the many, many things that have gone wrong with electoral succession the past few years, generally it hasn’t been the behavior of the courts that’s causing the problem,” says Walter Olson, a senior fellow at the Cato Institute’s constitutional studies center. “People can at least worry about one less thing as the next election approaches.”

IRS Whistleblower Recounts Political Interference In Hunter Probe

The White House invited an admitted tax cheat to last week’s state dinner with Indian Prime Minister Narendra Modi, but don’t you dare try to ask about it.

“I am not going to address this issue from this podium,” White House spokesman John Kirby told reporters on Friday shortly before cutting off questions and leaving the briefing. “I’m just not going to do it.”

Journalists had even less luck with Kirby’s colleague, Karine Jean-Pierre. “It’s not up to you how I answer the question,” she shot back at a reporter frustrated with her continued stonewalling. “I just answered the question by telling you my colleagues at the White House Counsel [have] dealt with this, and I would refer you to them.”

At issue are recent revelations—from a pair of IRS whistleblowers—that the Justice Department’s five-year-long investigation into Hunter Biden may not have been entirely on the level. Democrats—and the president himself—certainly hoped last week’s guilty plea and diversion agreement would mark the end of the first son’s time in the limelight. But if the last few days are any indication, Hunter’s days as a political liability for his father are only getting started.

The latest chapter in the story of the troubled younger Biden kicked off on Thursday, two days after news of his plea on tax and gun charges first came to light. Following a party line vote that day, the House Ways and Means Committee decided to release redacted transcripts of testimony from two IRS whistleblowers. “Whistleblowers describe how the Biden Justice Department intervened and overstepped in a campaign to protect the son of Joe Biden by delaying, divulging, and denying an ongoing investigation into Hunter Biden’s alleged tax crimes,” GOP Rep. Jason Smith—chair of the Ways and Means Committee—said. “The testimony shows tactics used by the Justice Department to delay the investigation long enough to reach the statute of limitations, evidence they divulged sensitive actions by the investigative team to Biden’s attorneys, and denied requests by the U.S. Attorney to bring charges against Biden.”

Before diving too deep on the developments, it’s important to note at the outset that the topline takeaways haven’t been confirmed, and Biden administration officials have since denied major chunks of the story. But the allegations—which were laid out under the penalty of perjury in hundreds of pages of testimony from IRS criminal investigator Gary Shapley and a second, unnamed IRS agent—paint a damning picture not only of Hunter Biden’s behavior, but the high-level law enforcement officials tasked with looking into it.

The most explosive revelation involves a WhatsApp message Hunter allegedly sent to Henry Zhao—an executive at CEFC China Energy—on July 30, 2017. “I am sitting here with my father and we would like to understand why the commitment made has not been fulfilled,” the texts read. “Tell the director that I would like to resolve this now before it gets out of hand, and now means tonight. And, Z, if I get a call or text from anyone involved in this other than you, Zhang, or the chairman, I will make certain that between the man sitting next to me and every person he knows and my ability to forever hold a grudge that you will regret not following my direction.”

Chris Clark, Hunter’s lawyer, did not deny the existence or legitimacy of the message, but chalked it up in a Friday statement to his client’s well-known substance abuse issues. “Any verifiable words or actions of my client, in the midst of a horrible addiction, are solely his own and have no connection to anyone in his family,” Clark claimed. President Biden, asked Monday whether the text message contradicted his longstanding assertion that he’d never spoken with his son about foreign business deals, offered a one-word answer: “No.”

Because he was between jobs at the time, we don’t know where Joe Biden was on July 30, 2017—the day Hunter texted Zhao—and the White House has thus far refused to specify. We do, however, know where Hunter was, thanks to reporting from the Washington Free Beacon: his father’s house. That doesn’t guarantee the two men were sitting together and coordinating the perfect response to Zhao, but it at least renders it possible.

As bad as the text message (if verified) would be, the whistleblowers’ most damning allegations are related to undue influence high-level Biden administration officials supposedly exerted on the investigation into Hunter Biden. “The criminal tax investigation of Hunter Biden, led by the United States Attorney’s Office for the District of Delaware, has been handled differently than any investigation I’ve ever been a part of for the past 14 years of my IRS service,” Shapley told Ways and Means Committee staffers. “Some of the decisions seem to be influenced by politics. But whatever the motivations, at every stage decisions were made that had the effect of benefiting the subject of the investigation.”

Shapley made a number of specific claims backing up that assertion during his deposition in late May. “Slow-walking” investigative steps, and tipping off Hunter’s legal team when they were about to happen. Blocking enforcement actions. Restricting investigators’ lines of questioning. According to Shapley, U.S. Attorney David Weiss—a Trump administration appointee whom Attorney General Merrick Garland kept on to finish the Hunter probe—sought to bring charges against the subject of his investigation in both California and Washington, D.C., and was stymied by his superiors in both instances. He allegedly requested special counsel status to operate more freely and was denied it.

“I’m not the deciding official on whether charges are filed,” Weiss supposedly told IRS and FBI investigators during an October 2022 meeting, contradicting Garland’s multiple public pronouncements about his independence. An email between Shapley and his boss shortly after the meeting seems to corroborate this account.

Garland, however, vehemently and unequivocally denied Shapley’s allegations on Friday, leaving little room for ambiguity. “As I said at the outset,” the attorney general told reporters, “[Weiss] would be permitted to continue his investigation and to make a decision to prosecute any way in which he wanted to and in any district in which he wanted to. … He was given complete authority to make all decisions on his own.” According to Garland, Weiss “never” requested special counsel status from him.

Weiss himself—whose Trump-era nomination was recommended by Delaware’s two Democratic senators—seemed to confirm Garland’s version of events in a June 7 letter to House Judiciary Committee Chairman Jim Jordan. “I want to make clear that, as the Attorney General has stated, I have been granted ultimate authority over this matter,” Weiss wrote, “including responsibility for deciding where, when, and whether to file charges and for making decisions necessary to preserve the integrity of the prosecution.”

That wasn’t enough for Jordan, who responded to Weiss last week with another letter asking him to clarify whether the Justice Department had any hand in helping him draft his June 7 response. And a tweet from House Speaker Kevin McCarthy on Sunday seemed to indicate where this line of GOP questioning is headed. 

“U.S. Attorney David Weiss must provide answers to the House Judiciary Committee,” McCarthy wrote. “If the whistleblowers’ allegations are true, this will be a significant part of a larger impeachment inquiry into Merrick Garland’s weaponization of DOJ.”

Worth Your Time

• South Koreans will all get younger today as a new law replaces the country’s ancient system for calculating age with what most of us are used to, starting the clock on your birthday. “For centuries, Koreans inflated ages compared with the rest of the world,” Timothy Martin and Dasl Yoon write for the Wall Street Journal. “An individual is 1-year-old at birth, and everyone gains a year together on Jan. 1. A New Year’s Eve baby turns two after a single day.” For many, the change will throw them back into seasons they thought they had left. “Like many people, Kim Hae-yeon struggled with turning the big 5-0,” Martin and Yoon explain. “Unfortunately, she’ll have to do it twice. ‘I’m 50,’ she says, ‘but turning 48 soon.’”
• The Turner Classic Movies channel is more than just a purveyor of classic American cinema—it owns the films it shows, raising the stakes for film history if the channel disappears. “What makes TCM indispensable is its library, and what brings the library to life—what makes it an ongoing vital experience rather than just a vault—is its programming,” Richard Brody writes in a piece for the New Yorker. “TCM should become a not-for-profit streaming service. This is what the Academy Museum of Motion Pictures should have been: not a physical space for the display of artifacts but a permanent free or low-cost TCM-like website, programmed with the discerning enthusiasm that has been the channel’s glory until now. Just as an art museum shows art, the Academy museum should show movies. It jars me to think that the physical Academy museum cost nearly half a billion dollars; maybe Warner Bros. Discovery, by donating TCM and its library to the Academy (or to another deep-pocketed not-for-profit institution out of the reach of commercial considerations), could win more goodwill than any promised, tenuous, and grudging stewardship could generate. The great legacy of the American cinema—and its future generations of artistic innovators—depend on it.”

Presented Without Comment

The Hill: GOP Presidential Contender Suarez Asks ‘What’s a Uyghur?’ on Hugh Hewitt Show

Also Presented Without Comment

Mediaite: Kamala Harris Notches Lowest Net Approval Rating of Any Vice President in NBC News Polling History

Also Also Presented Without Comment

Washington Post: Liz Cheney On What’s Wrong With Politics: ‘We’re Electing Idiots’

Toeing the Company Line

• Will Yevgeny Prigozhin “accidentally” fall out of a window? Is the LIV/PGA golf merger going to move forward? Which of the GOP presidential hopefuls will make it on to the debate stage in August? Declan was joined by Mary, Grayson, and Drucker to discuss all that and more on last night’s Dispatch Live (🔒). Members who missed the conversation can catch a rerun—either video or audio-only—by clicking here. 
• In the newsletters: Sarah argues (🔒) last year’s Dobbs ruling didn’t make much of a difference politically or culturally, Price covers House Republicans’ reactions to new allegations against Hunter Biden, and Nick pans (🔒) GOP lawmakers’ efforts to expunge Trump’s impeachments.  
• On the podcasts: Sarah and David disagree about the implications of the Supreme Court closing the door on the “independent legislature doctrine” on Advisory Opinions, while Jonah dives into all things ancient Roman with historian Bret Devereaux on today’s Remnant. 
• A quick note on issues with Google Podcasts: Google is experiencing problems updating its podcast platform and we’re in communication with them to try to get this fixed. While they work out the kinks, our podcasts are still available on several other podcast platforms, including Spotify, Apple Podcasts, Stitcher, Podcast Addict, and more. You can also hop over to our website and listen to all of our podcasts there! 
• On the site: Jonah contemplates whether Russia is headed toward a collapse, and Drucker weighs the seriousness of GOP presidential candidates’ recent rhetorical attacks on the Department of Justice. 

Let Us Know

Do you believe Joe Biden’s claim that he never spoke with Hunter Biden about his son’s business?

Correction, 6/27/23: This newsletter has been updated to correct Elbridge Gerry’s name.