Abbreviated Pundit Roundup: A 'box' of their own making

We begin today with Laurie Roberts of The Arizona Republic painting a picture of the corner that Arizona’s MAGA Republicans now find themselves in because of the Arizona Supreme Court’s decision upholding the 1864 abortion law and the Republican-controlled legislature’s unwillingness to strike down that law.

But here is what is clear: If the GOP-run Legislature does nothing and allows this 19th century law to stand, Republicans soon could be looking at a state where abortion is a constitutional right and Democrats take total control of the state.

The Arizona for Abortion Access initiative, enshrining abortion into the state constitution, already has the signatures to get on the November ballot. It already was going to boost voter turnout, which is no small thing in a state that Joe Biden won by just 0.3%.

[...]

But how does a MAGA Legislature extract itself from the box it built?

If Republicans repeal the 1864 law now about to take effect, they make a mockery of their own belief that life begins at conception and all abortion is murder.

If they put a competing measure on the ballot, proposing that abortion be legal for up to 15 weeks, they risk alienating their voter base and send a message that the “ultimate sin” is negotiable.

And if they do nothing, disaster.

Maegan Vazquez and Mariana Alfaro of The Washington Post take a look at Arizona polling that may indicate the electoral advantage that the Arizona Supreme Court and the Arizona legislature just handed to Arizona Democrats.

As a battleground state, a lot is on the line in Arizona. President Biden is running for reelection after winning the state in 2020 by fewer than 11,000 votes, and a Senate race in the state could prove crucial in determining which party controls the body next year. The balance of the statehouse is at stake this election cycle, too, with Republicans holding a one-vote majority in each chamber.

Polls show that abortion is a motivating issue for Arizona voters.

An October New York Times-Siena College poll found that 59 percent of Arizona registered voters said abortion should be mostly or always legal; 34 percent said it should be mostly or always illegal. In a March Fox News poll, 39 percent of Arizona voters said abortion would be extremely important in deciding their vote for president, and 32 percent said it would be very important. Those who supported Biden in 2020 were nearly twice as likely to say the issue would be extremely important in their vote, 51 percent to 27 percent.

After Arizona’s abortion decision, Republicans who previously were vocal advocates of restricting abortion found themselves in an unfamiliar position: condemning a change that will restrict reproductive care.

In an upset on the House floor, the measure, which would extend a section of the Foreign Intelligence Surveillance Act known as Section 702, failed what is normally a routine procedural test. On a vote of 228 to 193, 19 House Republicans, most aligned with the ultraconservative House Freedom Caucus, joined Democrats in opposing its consideration.

Such defections were once considered unthinkable but have become increasingly common as the hard right has rebelled against G.O.P. leaders.

It was unclear how Republicans would attempt to move forward.

[...]

The setback came just hours after Mr. Trump added his powerful voice of opposition to a sizable contingent of right-wing lawmakers who have clamored for a more sweeping FISA overhaul that would severely limit the government’s spying powers. And it unfolded as intelligence officials were visiting Capitol Hill to brief lawmakers and urge them to pass the legislation, which they say is essential to keep the country safe from a terrorist attack.

It was the third time attempts to advance the bill have collapsed in the House. In December, Mr. Johnson scrapped plans to hold votes on rival bills to narrow the scope of the law after an ugly fight broke out among Republicans. He pulled the bill again in February.

Alan Z. Rozenshtein of LawFare does a brief study of the various kinds of lawful presidential immunity, flaws (loopholes?) in the existing jurisprudence, and recommends fixes to the law.

Later this month the Supreme Court will hear oral argument about whether former President Donald Trump can be prosecuted for his attempt to overturn the 2020 election. In Nixon v. Fitzgerald (1982), the Court held that presidents enjoy absolute immunity from civil litigation for acts within the “‘outer perimeter’ of [their] official responsibility” but explicitly reserved the issue of immunity from criminal liability. Thus, a natural way of framing the question in United States v. Trump is whether the Court should extend Fitzgerald to the criminal context. In denying Trump criminal immunity, the U.S. Court of Appeals for the D.C. Circuit declined to so extend Fitzgerald, arguing that, even if the alleged conduct fell within the scope of Trump’s official acts, there is a heightened public interest in criminal cases, especially in the context of upholding elections.

I agree with the D.C. Circuit that Trump should not be immune for at least most of the conduct alleged in his D.C. federal indictment. And I also agree that Fitzgerald should not apply to the criminal context. But that is not because, as the D.C. Circuit suggested, the considerations behind civil and criminal immunity are so different. The problem lies with Fitzgerald itself, particularly its use of absolute, rather than qualified, immunity. By applying the strongest possible degree of immunity to such a broad range of activity—the “outer perimeter” of official presidential actions—the Supreme Court shielded an excessive amount of presidential malfeasance from civil liability. But the Court also created a dilemma for future decisions on criminal immunity: either apply Fitzgerald’s extreme immunity to the criminal context and functionally put the president above the law or impose an arbitrary distinction—criminal versus civil liability—into the law of presidential immunity.

Fitzgerald is the law of presidential immunity’s original sin, albeit a fixable one. If presidents enjoyed only qualified immunity for official acts—at least for those acts falling outside a small core of powers that the Constitution vests solely in the president—not only would the doctrine of presidential civil immunity be more robust with respect to lawbreaking presidents, but it could also be applied straightforwardly to the criminal context in a way that would respect both what Fitzgerald characterized as the president’s “unique status under the Constitution” and then-judge Ketanji Brown Jackson’s admonition that “Presidents are not kings.”

Matt Ford of The New Republic note that the Justice Department has requested participation in a U.S. Supreme Court case involving the criminalization of homelessness.

In a motion filed on Thursday, the Justice Department asked to participate in the court’s upcoming oral arguments in City of Grants Pass, Oregon v. Johnson. The federal government is not a direct party to the case, but the court sometimes allows the solicitor general to brief and argue in cases that implicate major federal interests even if they are not a plaintiff or defendant. [...]

In the Johnson case, the plaintiffs are challenging a series of ordinances passed by the small Oregon city of Grants Pass in 2013. The ordinances broadly ban people from “camping” on public property, which it defines to include practically any form of sleeping under temporary shelter. Failure to abide by the ordinance can incur hundreds of dollars in fines. After more than two violations, police can arrest defendants for criminal trespass, which is punished by up to 30 days in jail. The city does not have permanent homeless shelters.

A group of homeless residents sued the city in 2018 to block enforcement of the ordinances against them, invoking the Eighth Amendment’s ban on cruel and unusual punishment. They argued that the ordinances criminalized them for the “status of homelessness.” Since humans are biologically required to sleep at some point, and since the homeless residents are involuntarily homeless, they argued that it would be unconstitutional to punish them for acts that they cannot help but commit.

Abdallah Fayyad of Vox lauds the Washington D.C. Metro as a mass transit system that has made a comeback from pandemic lows and looks at ways that other mass transit systems might do the same.

Over the last couple of years, despite being bogged down by some safety issues, DC has tried to break out of that cycle. Flush with cash from federal pandemic aid, the Washington Metropolitan Area Transportation Authority (WMATA) doubled down on an “if you build it, they will come” strategy. It improved bus and train services and, in some cases, made fares more affordable in order to lure riders back. While other transit agencies took similar approaches — including reduced fares for riders or handing out signing bonuses to hire more workers — many still imposed service cuts rather than expansions.

WMATA’s strategy has been successful so far: In February, ridership across the system was at 83 percent of pre-pandemic levels, and DC has now seen a faster transit recovery than any other major metro area with a comparable public transportation network. [...]

Still, throwing more money at America’s public transit problem alone isn’t going to fix it. Transit agencies and elected officials also have to embrace a different culture around public transit and reimagine the purpose it serves.

Historically, transit networks have been designed around a 9-to-5 work schedule, shuttling people from residential areas into downtowns and back. With remote work sticking around, it’s unlikely that 9-to-5 commuters will fully return to pre-pandemic levels anytime soon. If transit agencies hope to bring in new riders, they have to start catering more deliberately to nonwork commuters.

Justin McCurry of the Guardian looks at the ramifications of the South Korean elections.

The prime minister, Han Duk-soo, tendered his resignation on Thursday as the scale of the drubbing meted out to the conservative People Power party (PPP) became apparent, according to the Yonhap news agency.

Han Dong-hoon, the PPP’s leader and head of the party’s disastrous election campaign, resigned. “I apologise to people on behalf of our party, which fell short of receiving people’s support,” Han told reporters in Seoul.

Yoon said he “humbly accepted” the result and promised an overhaul of state affairs.[...]

The Democratic party (DP) won 161 out of 254 directly contested seats, while the PPP won 90 seats. With proportional representation seats included, the DP and its satellite party secured 175 seats and the PPP and its satellite party 108, media reports said.

The result means the opposition narrowly failed to secure super majority of two-thirds of the 300 seats – a scenario that would have enabled it to block presidential vetoes and the passage of constitutional amendments.

Yoon, who is nearing the end of the first two years of his five-year single term, was likely to become a lame duck leader, some analysts said.

Finally today, Zvi Bar’el of Haaretz analyzes the meaning of the much ballyhooed word “context” as it now applies to Israel’s war with Hamas.

This war has turned the idea of the "context" into a most contemptible and threatening concept.

Contemptible, because it purports to provide a "rational explanation"; in other words, justification and understanding for atrocities, barbaric murder, rape, torture, humiliation, burning of homes with their residents inside, and kidnapping 240 people, incarcerating them in inhumane conditions and murdering them in captivity.

Threatening, because these acts created a "mirror context" that offers a "rational explanation" and justification for the Israeli response, the killing of more than 33,000 people, including more than 10,000 children, thousands of women, elderly, and innocent men, systematic and brutal destruction of thousands of homes, clinics and hospitals, and uprooting more than 1.5 million people from their homes, creating hunger, diseases and a shocking shortage of medicine.

Had these things been independent events, divorced from any historical path, as if they were one-time cosmic explosions that, when finished, would scatter their shrapnel to the wind without leaving a trace, the "context" would indeed be meaningless. Even if history were to restart in Gaza, ostensibly severed from any link, it has already given rise to the "context" that will not only dictate the nature of the next conflict, but also the face, character and properties of Israeli society.

Try to have the best possible day everyone!