The Morning Dispatch: The Court Gets Busy

Happy Tuesday! Have we mentioned we’ve got a post-election event coming up?

Quick Hits: Today’s Top Stories

• The United States confirmed 58,756 new cases of COVID-19 yesterday per the Johns Hopkins University COVID-19 Dashboard, with 4.7 percent of the 1,239,417 tests reported coming back positive. An additional 426 deaths were attributed to the virus on Monday, bringing the pandemic’s American death toll to 220,095. According to the COVID Tracking Project, 37,744 Americans are currently hospitalized due to COVID-19 complications.

• The Supreme Court on Monday agreed to hear two cases involving the Trump administration’s immigration policies—one involving the use of $2.5 billion in military funds to construct the southern border wall, and another requiring asylum seekers to wait in Mexico while the government considers their requests.

• In a 4-4 decision, SCOTUS also rejected Pennsylvania Republicans’ request to stop state election officials from counting mail-in ballots received up to three days after Election Day. The Pennsylvania Supreme Court had previously upheld the change.

• A federal grand jury in Pittsburgh indicted six Russian intelligence officials for their involvement in several clandestine hacking operations beginning in November 2015, including efforts to undermine France’s 2017 elections, destroy Ukraine’s power grid in 2015 and 2016, and hack the opening ceremony for the 2018 PyeongChang Winter Olympics. 

• The State Department will remove Sudan from a list of countries that sponsor terrorism, President Trump said on Monday, leaving Syria, Iran, and North Korea as the only remaining countries on the list. The Trump administration’s move comes after Sudan agreed to pay $335 million to compensate American victims of al-Qaeda terror attacks, and is seen as a major step toward Sudan’s normalization of relations with Israel.

• President Trump reportedly attacked Dr. Anthony Fauci as a “disaster” during a call with his campaign staff, adding that “people are tired of hearing Fauci and these idiots, all these idiots who got it wrong.” Trump’s comments follow Fauci’s appearance on 60 Minutes, during which Fauci said it was “absolutely” no surprise that Trump fell ill with the coronavirus.

• Luis Arce is set to become president of Bolivia after his opponent conceded the race. Arce, a socialist, is a close ally of ousted former Bolivian president Evo Morales, having served as Morales’ economic minister.

• The Council on Presidential Debates announced President Trump and former Vice President Biden’s microphones will be muted during the other candidate’s two-minute opening remarks at the start of each section of Thursday’s debate. Trump campaign manager Bill Stepien called the announcement “completely unacceptable” in a public letter that also complained about moderator Kristen Welker’s topic selection and accused the debate commission of demonstrating “partiality to Biden.”

Eight Doing the Work of Nine

Most Supreme Court news of late has revolved around Amy Coney Barrett and her likely ascension to the body, but it’s been a busy several days for the Court’s eight current justices.

On Monday morning, the Supreme Court announced it would be granting certiorari (to review the merits of the case), to three lower court decisions, including two that directly involve some of the Trump administration’s most controversial attempts to stem migration through the southern border. Let’s run through the latest.

Wolf v. Innovation Law Lab

The Trump administration’s “remain in Mexico” policy is being challenged in this case. Formally known as the Migrant Protection Protocols, the policy required thousands of asylum seekers to wait in Mexico, rather than the United States, while their claims for asylum are being processed. 

Intended to stop asylum seekers from evading authorities after being granted entry into the United States, the Protocol was described by the Ninth Circuit as “invalid in its entirety due to its inconsistency with” federal immigration law and international treaties. Along with the question of whether the administration was compliant with federal law in making the rule, the Court is expected to rule on whether the change was required to go through “notice and comment” under the Administrative Procedure Act, when the public has an opportunity to weigh in on the proposed change and the agency responds.

But the fourth of the four “questions presented” in the case may have the most significant effect on future rulings by lower courts. In asking “whether the district court’s universal preliminary injunction is impermissibly overbroad,” the Court may be poised to block lower courts’ use of nationwide injunctions, which often allow legal challenges to tie up federal policy as they wind their way through the court system. 

Adam White, a resident scholar at the American Enterprise Institute who focuses on the Supreme Court, said in an email that “given the Roberts Court’s palpable skepticism of the lower courts’ overuse of [nationwide injunctions], it seems like an issue that needs Supreme Court attention.”

Sierra Club v. Trump

This case involves President Trump’s 2019 attempt to circumvent Congress’s power of the purse by using Department of Defense funds to build his wall along the U.S.-Mexico border. Environmental groups—including the Sierra Club—sued to stop the wall’s construction, and a federal district court judge in California sided with them, ruling that the White House lacked the statutory authority to shift the funding. 

Although this decision was later upheld by the 9th Circuit Court of Appeals, there was a catch: The Supreme Court—in a pair of 5-4 conservative-vs.-liberal decisions—ruled that the Trump administration could continue building the wall while the case wound its way through the lower courts. Conventional wisdom holds that when the Court chooses to review a lower court case, that is generally a bad sign for whoever won in the lower courts. But White said “it’s always risky to read too much into the Court’s decision to take up a case … the Roberts Court has been wary of the Trump Administration’s more erratic or grandiose assertions of administrative power, so the Court’s full review of this case could be either good or bad for the Trump administration.”

Lange v. California

In non-immigration news, the court agreed to hear a case that hinges on a police officer’s decision to stop a garage door from closing with his foot. 

After a California Highway Patrol officer followed a man home on suspicion of violating state traffic laws against listening to loud music and excessive horn honking, the officer used his foot to stop his garage from closing. He entered the garage, smelled alcohol on the man’s breath, and charged him for driving under the influence. 

The man, Arthur Lange, argued in court that the foot-blocking maneuver by the officer violated his Fourth Amendment rights, and that the evidence of alcohol on his breath was inadmissible. A California Court of Appeals judge upheld the conviction, however, ruling that since the officer was in “hot pursuit” of Lange and had probable cause to arrest him for a misdemeanor, the warrantless entry was valid.

The Census Battle Continues

On Friday, the Court accelerated the timeline for reviewing the Trump administration’s move to exclude illegal immigrants from the official U.S. Census count, which is used to apportion congressional districts. The Court’s decision to move up the date of oral arguments to Nov. 30 comes days after it allowed the Trump administration to end the Census count before the original end-of-October deadline in order to have a completed report before both the end of the year and the winner of November’s presidential election is sworn in.

Deadlock over Mail-In Voting

In a brief order Monday evening, the Supreme Court denied a Republican challenge to a Pennsylvania Supreme Court ruling that required the state to count ballots received up to three days after the election, unless a “preponderance of evidence” indicated the ballot was mailed after election day. The Justices voted four-four, with Chief Justice John Roberts joining the Court’s liberals, which means the lower court’s decision automatically stands. Pennsylvania is currently seen as one of a handful of potential “tipping point” states; Monday’s ruling could help Democrats—more likely to vote by mail—on the margins.  

Worth Your Time

• This century’s elections have been fraught with complications, from the “hanging chads” saga of 2000 to Russian interference in 2016. As voting machines have become increasingly digital, states have had to contend with the vulnerabilities that arise when individual votes lack paper trails. Fortunately, according to experts, “it’s safe to say this is the most secure election we’ve ever held in the United States.” After Russian hackers revealed the fragility of our voting systems in 2016, the federal government incentivized states to adopt machinery with traceable and auditable paper backups for electronic voting machinery. Check out this installment of The New York Times’ “Stressed Election” series to see how far we’ve come.

• In the Wall Street Journal, Emily Glazer and Keach Hagey detail the rise of media outlets like the Copper Courier in Arizona and the Decatur Times in Alabama. Ostensibly, they’re “startup news sites helping to fill the void from the decline of local news outlets across the U.S.” But if you look a little bit deeper, they are actually “the fruit of partisan efforts to shape the news narrative, from the left and the right, ahead of the 2020 election.” Said Duke University professor Philip Napoli: “Today’s news consumer has to do a lot more detective work in order to ensure oneself that you’re being informed by legitimate news and information sources.” A similar investigation in The New York Times takes a close look at a well-funded network of pseudo-news sites on the right and the pay-for-publicity schemes meant to trick unsuspecting readers.

• Just two months after Russian opposition leader Alexei Navalny was poisoned en route to Moscow from the campaign trail in Siberia, he has emerged “stronger than ever.” Navalny has found new motivation to campaign against Putin’s ruling United Russia Party, while the international community takes note of the Kremlin’s latest transgression (a Soviet-era nerve agent was found in Navalny’s system). “Whatever control the Kremlin has over courts and security services, its party is the most basic instrument of its power,” he says in an interview with The Economist. “For all their mighty powers and their control over everything, they know that there is a broad historic process that is moving against them.”

• We’ve linked to Sarah Longwell’s focus group research before, but her latest Atlantic piece—“Why People Who Hate Trump Stick With Him”—is well worth your time. “What makes one voter who supported Trump in 2016 decide to support Biden? And what makes another voter—even one who thinks things are going badly—stick around?” she asks. “In the simplest, broadest terms, those who are abandoning Trump are doing so because they place most of the blame for the state of the country on the president. Those who are sticking with him, despite their expressions of discomfort with him personally, are driven by an even deeper scorn for the president’s detractors.”

Presented Without Comment

Toeing the Company Line

• In this week’s edition of The Sweep, Sarah dispatches some of the most pressing questions remaining about the election with two weeks to go. Click through for her thoughts on voter turnout, whether we can trust the polls, Republicans’ chances of keeping the Senate, and what Trump should do during this Thursday’s presidential debate if he wants to improve his electoral standing in battleground states.

• On yesterday’s episode of Advisory Opinions, Sarah and David break down competing theories surrounding alleged polling inaccuracies and explain why they’re likely overblown given the voter data we have at this point in the race. Stick around for a legal breakdown of the Supreme Court’s latest cert grants.

Let Us Know

NBC’s Kristen Welker has chosen “Fighting COVID-19, American Families, Race in America, Climate Change, National Security, and Leadership” as the six topics for the final presidential debate. The Trump campaign wants foreign policy to be a bigger focus. If you were in charge, what questions would you ask the two candidates on Thursday?

Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Charlotte Lawson (@charlotteUVA), Audrey Fahlberg (@FahlOutBerg), James P. Sutton (@jamespsuttonsf), and Steve Hayes (@stephenfhayes).

Photo by Zach Gibson/Getty Images.