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ALEC E. JOHNSON
EDITOR AND PUBLISHER JOHN B. JOHNSON JR.
CHAIRMAN HAROLD B. JOHNSON II
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HAROLD B. JOHNSON EDITOR AND PUBLISHER 1919-1949
MARY DEMPSEY LOCAL PUBLISHER
JOHN B. JOHNSON EDITOR AND PUBLISHER 1949-2001
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MARY DEMPSEY EXECUTIVE EDITOR
OUR VIEW
A highway of tears
On May 6, a march and a rally to honor missing and murdered indigenous people, especially women, will take place in Hudson. But it will be more than that. Speeches will be delivered and traditional chants will be revived to raise awareness of a modern crisis — the kidnapping and murder of indigenous people.
The march is sponsored by Forge Project, a private native-led art, culture and decolonial education initiative in partnership with Radical Indigenous Survivance and Empowerment, or RISE, a nonprofit organization dedicated to the education, dissemination and evolution of indigenous culture.
On March 7, the Hudson Common Council designated May 5, the day before the march, as the National Day of Awareness for Missing and Murdered Indigenous Women and Girls.
Indigenous women and girls are murdered at a staggering rate 10 times higher than women of all other ethnicities and three times higher than Anglo-American women, according to Native Women’s Wilderness. Murder is the third leading cause of death for indigenous women, according to the Centers for Disease Control and Prevention. More than 84% of indigenous women have experienced violence and more than 56% of indigenous women experience sexual violence, according to a report by the National Institute of Justice Report.
Many tribal nations consider the abduction and murder of indigenous people an epidemic, with some describing it as a form of genocide. Missing and murdered indigenous women may be rooted in the systemic belief that they are devalued and dehumanized in a predominantly white colonial-minded society and can easily be killed and tossed aside with little media attention.
The May 6 march will begin at the Henry Hudson Riverfront Park at 5:30 p.m. and conclude at Hudson City Hall about 7 p.m. and will represent the Highway of Tears, the mournful name of a 450-mile stretch of Highway 16 in British Columbia, Canada, where many indigenous women have been abducted and killed. Educators, lawmakers and law enforcement should treat these killings and kidnappings with urgency and act to fix this critically damaged social system.
ANOTHER VIEW Congress must act to prevent an election coup in 2024
(c) 2022, The Washington Post ·
A group of senators met last week to try to prevent anyone from stealing the 2024 presidential election or from once again inciting an armed mob to attack the Capitol. The bipartisan band, led by Sens. Susan Collins, R-Maine, and Joe Manchin III, D-W.Va., aims to update the 1887 Electoral Count Act, the archaic law that governs how Congress counts electoral votes that became a focus of Donald Trump’s efforts to overturn his 2020 election loss. The fate of the nation’s democracy might rest on whether these senators strike a deal, and soon: If Republicans take the House after November’s elections, a radicalized House GOP caucus will likely refuse to do anything that could be construed as hostile to Trump.
Some of the Democrats in the bipartisan group want to add voting-related measures to the bill they are negotiating. This is understandable; Congress has done nothing as Republican state legislatures have erected innumerable new barriers to voting. But the group should not get sidetracked. Electoral Count Act reform can attract 60 Senate votes; voting rights measures cannot.
Simply updating the act would be an important victory for democracy. Following the 2020 vote, Trump’s lawyers cooked up cockamamie interpretations of the act that would have, among other things, permitted thenVice President Mike Pence to throw out electoral votes at will. Thankfully, Pence resisted Trump’s pressure campaign to act on these fatuous arguments. But a future vice president might not be so principled.
An alarming number of GOP lawmakers also used the act’s vague language - reading into the act broad congressional authority to intervene when electoral appointments are not “lawfully certified” or when electoral votes are not “regularly given” - to object to counting electoral votes from a series of swing states that Joe Biden carried. This language was not supposed to empower partisan congressional majorities to reject presidential electors at will, but that was essentially the interpretation most House Republicans embraced.
The bipartisan negotiators must clarify the process so it leaves no room for a de facto coup. It should be clear that the vice president serves nothing but a pro forma role tallying electoral votes. Members of Congress should be allowed to object to presidential electors only under extremely narrow circumstances - say, if state officials send in a slate in defiance of a court order. The threshold for triggering a debate on whether to accept a state’s electors should be far higher. The bipartisan group appears to agree on these basics.
It should also take more than a bare majority to sustain such an objection, so it would be extremely difficult for one party to unilaterally overturn a presidential election. So far, the bipartisan group has not agreed on that reform. Lawmakers should clarify the role of the courts, empowering the judicial branch to sort out election disputes before Congress counts electoral votes. And they should make it crystal clear what happens when the House and the Senate disagree on a state’s electoral slate, so there is no question about which candidate gets a state’s votes.
The country cannot limp into another presidential election with electoral rules open to partisan misinterpretation and abuse. Congress should have no higher priority than fixing the Electoral Count Act, immediately.
Where did all the conservative hand-wringing over judicial restraint go?
WASHINGTON — “Something has powerfully gone awry,” U.S. Solicitor General Elizabeth B. Prelogar told the Supreme Court this week. “This is not how our constitutional structure is supposed to operate.”
Prelogar was arguing against a federal judge’s order requiring the Biden administration to reinstate its predecessor’s “Remain in Mexico” policy. In the annals of judicial overreach, the case presents a particularly flagrant example: a single Trumpappointed judge in Texas effectively dictating U.S. immigration and foreign policy.
Flagrant, but not unusual. One day later, a different Trump-appointed judge, in Louisiana, prohibited the Biden administration from implementing its plans to lift the pandemic border policy known as Title 42. The order is temporary, but the judge has signaled his intention to require the administration to keep in place the public health rule preventing migrants seeking asylum from entering the country.
The week before, yet another Trump appointee, this one from Florida, vacated the Biden administration’s mask mandate for public transportation.
Judicial review of agency decisions or executive orders is not just permissible; it is a fundamental component of the rule of law. Federal courts served as an important bulwark against executive branch excesses throughout Donald Trump’s presidency. “The administration’s record in the federal courts remains gratifyingly dismal,” I wrote in a column toward the end of the Trump administration.
So it’s fair to ask: Is this just griping about decisions I don’t like from judges with a judicial philosophy I don’t share? I don’t think so. Something different is going on here.
The shift is built on a phenomenon that took off during the Trump administration but has persisted during the Biden presidency: the use of nationwide injunctions — orders issued by a single district court, often strategically chosen for the likelihood of finding a sympathetic judge, that apply beyond the immediate parties in the case to completely block an administration policy.
Now, however, that willingness to halt executive action has been harnessed to the radical anti-regulatory stance endemic among Trump-appointed federal judges. They have routinely evaded the rule that courts should defer to the expertise of administrative agencies, insisted that Congress speak with clairvoyant precision to authorize a regulation and transformed textualism from sensible interpretive method into an excuse for intervention.
Taken together, these developments offer supposed conservatives — those who profess to believe in judicial restraint — the ability to weaponize the federal judiciary to hobble the Biden administration.
Conservatives loathed these nationwide orders, and many liberals welcomed them, when they were deployed to frustrate the Trump administration, from blocking his travel ban to preventing him from removing protections for immigrant “dreamers.”
A nationwide injunction, then-Attorney General William P. Barr warned in 2019, “gives a single judge the unprecedented power to render irrelevant the decisions of every other jurisdiction in the country.” The next year, Justice Neil M. Gorsuch, joined by Justice Clarence Thomas, decried the “increasingly common practice of trial courts ordering relief that transcends the cases before them,” arguing it creates “a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide.”
Somehow conservatives’ complaints have been muted with a Democratic administration in office. In the “Remain in Mexico” case argued this week, the justices refused the Biden administration’s earlier entreaty to lift a district judge’s order that it reinstate the Trump policy. It’s hard to square that with the court’s willingness to intervene when a different district judge blocked “Remain in Mexico” from taking effect. What’s the difference, exactly, other than that one policy was adopted by a Republican president and one by a Democrat?
Combine this with conservative judges’ antipathy to regulation, and you have a recipe for judicial activism. This was on florid display in the mask mandate case. The judge strained to ignore statutory language authorizing the Centers for Disease Control and Prevention to take steps “as may be necessary” to limit contagion. She adopted a particularly cramped interpretation of the law’s provision allowing for “sanitation” measures. She found the CDC had no power to take such a “major” step as requiring passengers to mask up.
For good measure, she wrote that despite “the criticism about nationwide injunctive relief” and her own “skepticism” about such edicts, she was obligated to issue an order affecting every single passenger in the country. “How is the ridesharing driver, flight attendant, or bus driver to know someone is a Plaintiff to this lawsuit with permission to enter maskfree?” she asked.
Oh please. A rule is enjoined nationwide because a few people said wearing masks made them panicky?
The “Remain in Mexico” case featured similarly tortured textualism. Federal immigration law provides that migrants not immediately eligible for entry “shall be detained” while their status is being decided. But no administration, Republican or Democrat, has ever detained every such person. There simply aren’t enough beds.
Another provision states that immigration authorities “may return” asylum seekers to Mexico while their cases are being decided. Lower courts in the case, ignoring reality and rewriting language, insisted that “may” means “must.” The administration, they said, had a simple choice: Either detain would-be entrants or return them to Mexico. But, as Prelogar told the court, “on this reading, every presidential administration, in an unbroken line for the past quarter-century, has been in open violation” of the law.
Even more worrisome, as Justice Elena Kagan pointed out, the lower courts’ rulings put judges in charge of foreign affairs and immigration policy. “It puts the United States essentially at the mercy of Mexico,” she observed. “Mexico has all the leverage in the world to say: Well, you want to do that? You want to comply with the court’s order? Here are 20 things that you need to do for us.”
Conservatives have lectured us for years that judges shouldn’t be substituting their own policy preferences and that courts should be respectful of presidential authority, especially when it comes to foreign affairs.
Something has powerfully gone awry, indeed.
WASHINGTON POST
RUTH MARCUS
Ruth Marcus’ email address is ruthmarcus@washpost.com.
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