The Morning Dispatch: Newsom Vows to Model Gun Legislation on Texas Abortion Law

Happy Wednesday! O.J. Simpson was discharged early from parole in Nevada on Tuesday, making him, in the words of his lawyer, a “completely free man.”

That’s just what American society has been missing these past few years: A completely free O.J. Simpson.

Quick Hits: Today’s Top Stories

• A large, real-world study out of South Africa found that—during the country’s current Omicron wave—two doses of Pfizer’s COVID-19 vaccine were just 33 percent effective against infection, but 70 percent effective against severe disease requiring hospitalization. Those infected with the Omicron variant, however, were found to be 29 percent less likely to require hospitalization than those infected with the D614G variant in 2020. “Furthermore, hospitalized adults currently have a lower propensity to be admitted to high-care and intensive-care units, relative to prior waves,” one of the study’s authors said.

• Pfizer announced Tuesday that a final analysis of clinical trial data confirmed that Paxlovid—the company’s oral COVID-19 antiviral—reduced the risk of hospitalization or death in high-risk patients by 89 percent when taken within three days of symptom onset, and is likely effective against the Omicron variant. President Joe Biden cheered the news, but noted “several steps remain before the Pfizer pill can become available, including authorization by the Food and Drug Administration.”

• The Senate voted 50-49 on Tuesday—with Democrats accounting for all the votes in favor and Republicans all the votes against—to increase the debt ceiling by $2.5 trillion, almost assuredly punting the issue past the midterms and into 2023. The House approved the measure 221-209 early Wednesday morning, sending it to President Biden’s desk for his signature.

• The House voted unanimously on Tuesday to pass the Uyghur Forced Labor Prevention Act after Democratic Rep. Jim McGovern and Republican Sen. Marco Rubio came to an agreement on the final text of the bill, which would prohibit all imports from China’s Xinjiang region in the absence of “clear and convincing evidence” the goods in question did not rely on forced labor in any way. The White House confirmed yesterday for the first time that President Biden will sign the legislation into law once it passes the Senate.

• The House voted 222-208 last night to hold Mark Meadows—Donald Trump’s former chief of staff—in criminal contempt of Congress for defying a subpoena from the January 6 Select Committee. Meadows had turned over thousands of pages of records to the committee but ceased cooperation last week, claiming lawmakers were pursuing information protected by Trump’s claims of executive privilege.

• The Bureau of Labor Statistics announced Tuesday the Producer Price Index—which measures what suppliers are charging their customers—increased 9.6 percent year-over-year in November, the largest such figure on record since the data was first collected in 2010.

• A Belarusian court on Tuesday sentenced the husband of opposition leader Sviatlana Tskikhanouskaya to 18 years in prison for “organizing mass unrest” and “inciting social hatred.” Tskikhanouskaya accused Belarusian dictator Alexander Lukashenko of being behind the “revenge” verdict, saying he “hopes to continue repressions in silence,” but that “the whole world watches.”

• Sens. Joe Manchin and Bernie Sanders said Tuesday they will oppose the confirmation of Dr. Robert Califf—President Biden’s nominee to lead the FDA—meaning the Obama administration FDA commissioner’s approval will require Republican support, which it appears he has currently.

• President Biden announced Tuesday he intends to nominate acting Federal Housing Finance Agency Director Sandra Thompson to lead the agency—which oversees Fannie Mae and Freddie Mac—on a permanent basis.

• A gasoline tanker truck exploded in the Haitian city of Cap-Haïtien on Tuesday, killing at least 62 people and wounding dozens more.

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Did the Supreme Court Just Unlock a Constitutional Cheat Code?

The Annie Get Your Gun-ification of American politics continues apace. In a press release issued Saturday, California’s Democratic Gov. Gavin Newsom announced he had ordered his staff to begin working with the state legislature to craft a bill—modeled after Texas’ recently enacted abortion legislation—that would allow private citizens to seek injunctive relief and statutory damages against “anyone who manufactures, distributes, or sells an assault weapon or ghost gun kit or parts in the State of California.”

“If states can now shield their laws from review by the federal courts that compare assault weapons to Swiss Army knives,” he declared, “then California will use that authority to protect people’s lives, where Texas used it to put women in harm’s way.”

One day earlier, the Supreme Court had issued its rulings in Whole Woman’s Health v. Jackson and United States v. Texas, allowing Texas’ S.B. 8—which permits private individuals to sue anyone who helps perform an abortion after about six weeks of gestation—to remain in place. But the cases were only tangentially about abortion; really at issue was the law’s unique enforcement mechanism.

“The ultimate merits question—whether S. B. 8 is consistent with the Federal Constitution—is not before the Court,” Justice Neil Gorsuch wrote in the majority opinion. “Nor is the wisdom of S. B. 8 as a matter of public policy.”

Normally, when a state passes a law likely to be ruled unconstitutional—like a six-week abortion ban—affected parties can sue those set to enforce the law, and a court will block those officials from enforcing it before it goes into effect. But in the case of S.B. 8, it was not clear whom affected parties could sue to seek an injunction, as we detailed in a TMD last month.

Senate Bill 8’s (SB8) enforcement is not in the hands of state officials like prosecutors or county clerks, but private citizens who can collect $10,000 and attorney’s fees for successfully suing anyone who performs—or “knowingly engages in conduct that aids or abets the performance” of—an abortion after a fetal heartbeat is detected. Noting that there were “serious questions” about law’s constitutionality, a majority of the court nonetheless voted to deny an application for injunctive relief. Texas legislators had, through what Cato Institute Vice President Ilya Shapiro labeled “a clever gimmick,” essentially hacked the system of [judicial pre-enforcement] review.

“Federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves,” the court wrote. “And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.”

In its relatively narrow ruling on Friday that relied on precedent established in Ex parte Young, a divided Supreme Court attempted to clear up the situation: The Texas abortion providers’ lawsuit seeking pre-enforcement review could not proceed against Texas state court judges, state court clerks, or Attorney General Ken Paxton, but it could proceed against a handful of Texas medical regulators. As Sarah noted on Monday’s Advisory Opinions, “that’s not a small thing to come out of this case.”

“This lawsuit can proceed now against the medical licensing professionals in this current iteration, in a pre-enforcement posture,” she said. “You’re going to have federal courts saying that this violates Roe and Casey, and that, while not binding on state courts, is used for its persuasive reasoning in Texas. And so all the state courts are going to have to at least grapple with the fact that a federal court—interpreting federal law and precedent—is saying that the Texas law is unconstitutional.”

But Chief Justice John Roberts and the three liberal justices would have gone farther than their peers, arguing that the court should have allowed the suit to also go forward against state officials. Justice Clarence Thomas, meanwhile, contended that the abortion providers in the case shouldn’t be allowed to sue anyone until the law is actually enforced against them. As for the U.S. Solicitor General’s separate case, the court dismissed the writ of certiorari as improvidently granted—more or less legalese for “decided it didn’t want to decide this anymore.”

“So the bottom line is, the court allows the lawsuit just by the abortion providers against medical officials who could actually enforce against doctors,” said Adam White, an American Enterprise Institute constitutional scholar who served on President Biden’s Supreme Court Commission. “You can’t sue judges, and you can’t sue the attorney general, because he’s not really directly enforcing the law himself. … You still have to show somebody is actually in a position to enforce the law, and moreover, you have to show that there’s a credible likelihood that they will enforce the law against you.”

Roberts, ever the institutionalist, worried about the precedent the ruling would set. “The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings,” he wrote in his partial dissent, arguing the legislation has a chilling effect on constitutionally protected conduct. “The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.”

In oral arguments last month, Justice Brett Kavanaugh asked Texas’ solicitor general if allowing S.B. 8 to stand would incentivize states to pass similar laws infringing upon other protected liberties. “It could be free speech rights, it could be free exercise of religion rights, it could be Second Amendment rights,” he said. “If this position is accepted here, the theory of the amicus brief is that it can be easily replicated in other states that disfavor other constitutional rights.”

That’s the theory that Newsom is now hoping to put to the test in California, but constitutional scholars warn that his proposed gun control legislation may not be analogous to what Texas did with abortion. 

“I think the Court would treat similar legislation dealing with guns or free exercise or what have you the same way. … So there’s nothing about this unique to abortion,” said Will Baude, faculty director of the Constitutional Law Institute at the University of Chicago Law School. “That said, I don’t think Gavin Newsom … fully understands what S.B. 8 is and how it works. For it to work—at a minimum, for instance—he would have to eliminate the ability of the state to prosecute people for those assault weapons or ghost weapons and things like that. I don’t know that he really means that. My guess is nobody will actually try to replicate this law’s particulars because it’s pretty complicated how it works.”

“To replicate this law and its effects in other contexts, you’ve got to pretty much do almost everything the law does,” added Jonathan Adler, professor at Case Western Reserve University School of Law. “It’s not merely private enforcement, and it’s not merely retroactivity. You have to, for example, divest state officials of any authority to enforce the same law. There are a whole bunch of other things you’ve got to do. Is California willing to do all of those things with regard to guns or with regard to assault weapons or whatever? Maybe, maybe not.”

Uyghur Forced Labor Prevention Act on Its Way to Becoming Law

After months of bipartisan negotiations, the House voted unanimously on Tuesday to pass the latest version of the Uyghur Forced Labor Prevention Act hammered out by Democratic Rep. Jim McGovern and Republican Sen. Marco Rubio. “We as a country have become so reliant on China that we’ve turned a blind eye to the slave labor that makes our shoes, our solar panels, and much more,” Rubio said. “But that changed today.”

Haley spent much of the past week reporting on the bill, and yesterday’s Uphill dives into its provisions in more detail than we’ve seen anywhere else.

The legislation, when implemented 180 days after enacted, will block goods made with forced labor in China’s Xinjiang region from being imported into the United States.

[The bill] assumes all products made in part or in whole in Xinjiang are tainted with forced labor. It gives businesses the option to receive exemptions from the import ban if they can prove to U.S. Customs and Border Protection with “clear and convincing evidence” that their supply chains are free of coerced labor.

The bill passed the House unanimously—and could very well do the same in the Senate—but it had to overcome a series of obstacles to get to this point.

The effort foundered for more than a year despite overwhelming support in both chambers. A lobbying campaign by large corporations sought to water down key provisions of the legislation after it initially passed the House in the last Congress, and in recent months, Biden administration officials have quietly expressed reservations to the bill’s supporters.

Washington Post columnist Josh Rogin confirmed the administration was pushing against key components of the bill, reporting last week that officials had been calling for a more limited strategy. He wrote that in an October call between Deputy Secretary of State Wendy Sherman and Sen. Jeff Merkley, the Senate Democrat who sponsored the legislation alongside Rubio, Sherman “made it clear that the administration prefers a more targeted and deliberative approach to determining which goods are the products of forced labor.”

Merkley also publicly confirmed there has been pushback from the White House. He recently told Bloomberg there is some “hesitancy” on the administration’s part and “I disagree with it.”

But the White House finally got on board yesterday.

“The President welcomes the agreement by Congress on the bipartisan Uyghur Forced Labor Prevention Act,” press secretary Jen Psaki said in a statement. “We agree with Congress that action can and must be taken to hold the People’s Republic of China accountable for genocide and human rights abuses and to address forced labor in Xinjiang.”

The legislation is intended to shield American investors from contributing to the human rights abuses in the region.

The Chinese government is carrying out a genocide against ethnic and religious minorities in Xinjiang, a region in northwest China. According to the State Department, Xinjiang authorities have arbitrarily detained more than 1 million Uyghurs and other minorities, including Kazakhs and Krygyz, in concentration camps since 2014. Victims of the brutal campaign, both in and out of the camps, have been subjected to torture, sexual abuse, forced abortions and sterilizations, and oppressive surveillance.

Chinese authorities have also established a massive network of factories and cotton fields, where hundreds of thousands of people have been forced to work.

Importing goods made with forced labor has been illegal in the United States for more than 90 years, but enforcing those rules has become exceptionally difficult as it pertains to Xinjiang. 

It’s hard for American consumers to know whether the items they’ve bought in the past few years have been touched by China’s forced labor scheme, but for many products, it’s likely. Global supply chains are complex, and goods from Xinjiang have a large footprint. Cotton from the region makes up 85 percent of Chinese cotton production and 20 percent of the world’s cotton supply.

For more on this issue—including earlier disagreements between Rubio and McGovern and how the bill interplays with the Biden administration’s efforts to combat climate change—check out the full Uphill newsletter. You can ensure you’re receiving Uphill in your inbox twice a week by updating your account preferences here.

Worth Your Time

• Another day, another Ronald Bailey piece for Reason. In this one, he calls on the FDA to expedite its authorization of Paxlovid, Pfizer’s highly effective COVID-19 oral antiviral. “The pill proved so effective in clinical trials that the company stopped enrolling participants in its study in early November 2021 because it would have been unethical to give new participants a placebo,” he writes. “The company has been all along sharing with the FDA its data as part of an ongoing rolling submission for emergency use authorization (EUA) of the treatment. Four weeks ago, the Biden administration announced that it had already purchased 10 million treatment courses of the Pfizer antiviral COVID-19 pill. It is beyond stupid that the agency has apparently not yet scheduled a meeting of its advisory committee to review Pfizer’s EUA application. It’s not like some 1,200 Americans aren’t still dying daily from COVID-19 infections and that another highly contagious variant looks likely to cause millions of breakthrough infections as the winter comes on.”

• Henry Olsen—conservative columnist for theWashington Post—argues in his latest that it’s time to “entertain the possibility” that Democrats’ Build Back Better legislation won’t become law. Sen. Joe Manchin of West Virginia has continued to express concerns about the package, noting it may not actually be fully paid for, and that it could create additional inflationary pressures. “Progressives have clearly stated all year that they expect a transformational package,” he writes. “They have been willing to compromise thus far primarily on the overall cost, which is why the bill that passed the House has so many programmatic expirations. They have not been willing to admit that there isn’t a Senate majority for a transformational bill. Instead, they have been ramping up the pressure on Manchin to go along with the party majority. That’s not something Manchin is willing to do, per all his public statements.”

• Katherine Wu has a colorful explainer in The Atlantic looking at how a vaccinated person’s killer T cells step up to the plate when antibody protection wanes. “They home in on different aspects of the virus than antibodies do, and they are much harder to stump with mutations,” she writes. “Their entire raison d’être is rooting out infected cells—not free-floating viruses—and they manage that feat through an affinity for gore. As a signal of distress, infected cells can chop up some of the viruses they’re being forced to produce and display the mangled pieces on their outside. ‘They say, ‘Look, I’m infected with something,’’ Avery August, an immunologist at Cornell University, told me. The dismembered bits are gross but effective: Nothing makes killer Ts go wild more than a hunk of mutilated virus splattered onto the surface of an infected cell.”

Something Cool

Steph Curry of the Golden State Warriors passed Ray Allen last night to become the NBA’s all-time leading three-point shooter—and he’s only 33 years old.

Here are all 2,974 of them.

Presented Without Comment

Also Presented Without Comment

Also Also Presented Without Comment

Toeing the Company Line

• In yesterday’s Sweep, Sarah muses about Pete Buttigieg’s recent trip to New Hampshire, Rep. Devin Nunes’ political calculations, and partisan gerrymandering in Maryland, Illinois, North Carolina, Texas, and other states. Plus, Audrey provides an early look at how the Pennsylvania Senate race is shaping up.

• Princeton University’s Keith Whittington dropped by The Remnant yesterday for a conversation with Jonah about President Biden’s Supreme Court Commission. 

• Citing the text messages released Monday by the January 6 Select Committee, David’s Tuesday French Press (🔒) argues that “when Fox News covered the unfolding attack on the Capitol, its personalities were covering an event they helped create.”

Let Us Know

In light of Steph Curry’s 2,974th three-pointer: If you could hold one world record, what would it be and why?

Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Charlotte Lawson (@lawsonreports), Audrey Fahlberg (@AudreyFahlberg), Ryan Brown (@RyanP_Brown), Harvest Prude (@HarvestPrude), and Steve Hayes (@stephenfhayes).