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Supreme Court ruling could doom GOP’s attempts to enact corporate COVID-19 immunity

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- Commentary
Sarah Okeson
Sarah Okeson

The landmark Supreme Court decision that upheld most of the Affordable Care Act could help doom efforts of Trump Republicans who are trying to protect companies that force their employees to go to work and healthcare providers from lawsuits.

Senate Majority Leader Mitch McConnell (R-Ky.) wants to give companies that reopen during the pandemic immunity from liability. Such a law, which would supersede state laws about liability, could run afoul of the Commerce Clause, the part of the Constitution that gives Congress the authority “to regulate commerce with foreign nations, and among the several states.”

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“The heady days when Congress could justify virtually any legislation under the Commerce Clause are gone,” Georgetown University law professor David Vladeck told the Senate Judiciary Committee.

Constitutional scholars have sparred about the meaning of this clause for centuries, citing authorities such as the 1785 edition of Samuel Johnson’s dictionary and an 1824 case about steamboat routes.

For almost six decades, justices liberally interpreted the Commerce Clause to expand government powers, starting with a 1937 New Deal case after President Franklin Roosevelt threatened to pack the court. Civil rights advocates used the Commerce Clause to remove economic obstacles based on racism.

More than 1,300 coronavirus complaints had been filed by late May, according to the law firm Hunton Andrews Kurth. Twenty-six of those cases, or less than 2%, are employment cases about exposure to the coronavirus at work. The largest share of the cases – 389, or about 29% — are lawsuits filed by prisoners.

States Already Shielding Companies

A few states, including Utah and North Carolina, have passed laws to shield businesses from liability. At least six states – Alabama, Illinois, Louisiana, Ohio, South Carolina and Wyoming – have introduced bills to shield businesses besides healthcare facilities, according to the National Conference of State Legislatures.

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“Liability protections come at a cost, and the cost is to employers, customers and public at large, because if a business has no incentive to guard against these kinds of harms, safety becomes the more expensive and less competitive option,” said attorney Max Kennerly.

Workers’ compensation laws, state laws that give workers a way to get compensation without a liability finding, protect employers from most claims for monetary damages. Courts have yet to decide whether coronavirus is covered by workers’ compensation laws.

Commerce Clause Clipped

In 1995, the liberal interpretation of the Commerce Clause ended when the Supreme Court in U.S. v. Lopez struck down a federal law that banned possession of guns within 1,000 feet of a school.   Chief Justice William Rehnquist wrote that the Commerce Clause could not support a ban on guns near schools and playgrounds even though gun sales often involve interstate transactions.

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In the 2012 Supreme Court case that upheld the Affordable Care Act, Chief Justice John Roberts joined the four liberals on the court to uphold most of the act. But Roberts also concluded that the individual mandate, the requirement that everyone have health insurance, wasn’t valid under the Commerce Clause.

“Congress has never attempted to rely on that power to compel individuals not engaged in commerce to purchase an unwanted product,” he wrote.

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‘Nazi Nuremberg defense’: Buffalo police ripped for defending cops who pushed elderly man

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The Buffalo Police Department Emergency Response Team was harshly criticized online after all 57 officers resigned from the team in solidarity with officers who were suspended for shoving an elderly man during protests against police violence.

Video went viral on Thursday that showed police shoving 75-year-old Martin Gugino, who bled from the ear after his head hit the concrete with a thud.

“Fifty-seven resigned in disgust because of the treatment of two of their members, who were simply executing orders,” Buffalo Police Benevolent Association president John Evans said in a statement.

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Minneapolis store faces boycott over Hitler-praising social media posts written by owner’s daughter

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On Friday, the Star Tribune reported that a number of businesses in the Twin Cities are cutting ties with Holy Land, a Mediterranean restaurant and grocery store, following the emergence of racist and anti-Semitic past social media posts from an employee.

"Majdi Wadi, CEO of Holy Land Brand Inc., which operates a Middle Eastern grocery store, restaurant and deli in northeast Minneapolis, apologized for the 2016 posting and revealed that it was written by his daughter, Lianne Wadi, the company’s catering director. She was fired," said the report.

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57 Buffalo cops resign to support suspended officers who pushed down elderly man

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The entire Buffalo Police Department Emergency Response Team -- a total of 57 officers -- has resigned from the team in support of the two officers who pushed 75-year-old Martin Gugino to the ground, seriously injuring him.

They are still employed, but no longer on ERT.

According to Buffalo Police Benevolent Association president John Evans, the cops who pushed Gugino down were just following orders.

“Fifty-seven resigned in disgust because of the treatment of two of their members, who were simply executing orders,” Evans, said in a statement.

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