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

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- Commentary
Senate Majority Leader Mitch McConnell of Kentucky speaking at CPAC 2011 (Gage Skidmore/Flickr)
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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Rick Wilson urges ‘humiliation and incarceration’ for the GOP’s ‘grubby sellouts’ who propped up Trump for 4 years

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Republicans know the end of Donald Trump's presidency is near, despite his increasingly desperate legal challenges, and former GOP strategist Rick Wilson won't be willing to forgive and forget.

Wilson, writing for The Daily Beast, imagines there will be a rush of Republicans to distance themselves from the soon-to-be-former president, but he said there will be copious evidence of lawmakers, governors and political professional debasing themselves for Trump.

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Expert explains why ‘systemic conservatism’ continues to prevail in America

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On the Sunday after the November 3rd presidential election, Utah Senator Mitt Romney, the 2012 Republican presidential candidate, congratulated President-elect Joe Biden but insisted that the overall election was an endorsement of conservative principles. He pointed to the gains Republicans made in the House, though they are still in the minority, and the failure of the Democrats to capture control of the Senate, at least so far. Romney found further evidence in the Democrats' inability to flip GOP-controlled statehouses.

Romney, however, is mistaken in his basic assertion. First of all, Biden won by more than 5 million popular votes, nearly 4 percent more than Trump's total. The president-elect obtained the highest number of popular votes in the nation's history. Biden's margin of victory, contrary to Romney's claim, is not a mandate for conservatism. Rather, at the very least, the election was a referendum on President Trump's leadership, which of course Trump used to promote conservative ideas concerning tax cuts for the wealthy and the relaxation of business and environmental regulations.

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2020 Election

Expert breaks down the ultimate goal of Trump’s ‘classic Russian-style disinformation campaign’

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Jonathan Rauch, a senior fellow at the Brookings Institute, spoke with CNN's Brian Stelter on Sunday to explain the ultimate goal of President Donald Trump's false accusations of a rigged and stolen election.

Rauch was asked by Stelter if the issue is Trump is simply trapped in the delusion that he actually beat President-elect Joe Biden in the 2020 election.

"Is delusion a fair word for these election lies?" Stelter wondered.

"No, actually, I don't think it is," Rauch replied. "It's hard to know what's going on in the mind of the president, but you don't really need to. What you need to know is that what he is running right now is a classic Russian-style disinformation campaign of a type known as the firehose of falsehood. That's when you utilize every channel, not just media, but also the bully pulpit, even litigation to push out as many different stories and conspiracy theories and lies and half-truths as you possibly can in order to flood the zone if with disinformation."

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