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The Other Tool Democrats Have to Rein in the Supreme Court

Article III of the U.S. Constitution lays out not only the structure of the Supreme Court but what cases the court has the authority to decide—in other words, the court’s “jurisdiction.” The Constitution also separates the court’s jurisdiction into two distinct categories. For some rare cases that are highly-sensitive to national interest, such as cases involving U.S. diplomats or disputes among the states, the parties involved can take the dispute directly to the Supreme Court, skipping all lower courts and benefiting from what is called the court’s “original jurisdiction.” For everything else, the Supreme Court is actually not given the power to decide the case on its own, but instead is granted only the power to review a lower’s court’s decision. This is what is referred to as the court’s “appellate review” jurisdiction.

Although the court’s original jurisdiction is clearly spelled out in this part of the Constitution, with a clear list of the limited types of cases the court can decide on its own, the text takes an indirect route to explain the court’s appellate jurisdiction. And this section also contains something known as the Exceptions Clause, which gives Congress the power to make exceptions to the court’s appellate jurisdiction. In the original text: “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

Stripping the Supreme Court of jurisdiction over certain classes of cases, such as abortion cases, would not mean that Americans would not have access to a judicial tribune for resolving cases. In the absence of Supreme Court jurisdiction over such cases, the final say on these issues would rest with the highest state courts or any of the 13 federal courts of appeal, each of which have jurisdiction over certain parts of the U.S. territory.

It is perhaps the strongest tool in the legislative arsenal that has not yet been used in American history and is fodder for many disputes among giants of the legal academy. If the Constitution gives Congress the power to make exceptions to the court’s appellate jurisdiction, can Congress pass a law to prevent the highest court from reviewing lower courts’ decisions on certain subject matters?

Not only has the legal academy leaned towards an affirmative answer, but Congress itself on several occasions has attempted to exercise this power. During the antebellum period, those in favor of state interposition or nullification—the belief that federal laws could not be imposed on the states without their consent—raised the idea of stripping the Supreme Court of its jurisdiction over all state court decisions interpreting federal laws. The brash polemicist John C. Calhoun was a leading proponent of this argument. In 1827, Calhoun, then vice president, began lobbying congressional members to introduce legislation that would take away the Supreme Court’s power to review state courts’ decisions interpreting federal laws. Largely due to his efforts, the House Judiciary Committee in 1831 issued a report calling on Congress to do just that. Ultimately, those in favor of preserving the Supreme Court’s power over state courts were able to convince the House to not take up any such legislation.

In 1957, and at the height of the Second Red Scare, the Supreme Court was pitted against a staunchly anti-Communist Republican majority in Congress. The court, in a series of decisions, drastically limited the Republicans’ efforts to investigate and punish Communist sympathizers, e.g. by holding that government agencies could not discharge employees deemed to be disloyal, by preventing federal prosecutors from keeping relevant evidence hidden from the courts in criminal cases if such evidence implicated national security, and by greatly increasing the court’s purview over how congressional investigations were conducted.

In response, Senator William Jenner introduced legislation that would have stripped the Supreme Court’s appellate jurisdiction over such cases and others involving subversive activities. Despite the Senate’s serious consideration, the bill was ultimately defeated, to no small degree because then-President Dwight Eisenhower’s attorney general opposed its passage.

The next period of Court-Congress high drama arrived in 1964, when a congressional proposal aimed to remove the Supreme Court’s jurisdiction over cases involving apportionment of representation in state legislative bodies. This time, Congress was reacting to the Supreme Court decisions in Baker v. Carr and Reynolds v. Sims—two cases through which the court formally introduced the idea of “one person, one vote” and prevented states from apportioning seats in their state legislatures in a way that clearly discriminated against their Black population. The bill passed the House but was not taken up by the Senate.

The 1980s proved to be yet another highly contentious period in the court’s history, when a string of cases touching on sensitive social issues greatly increased public pressure on the court. As a result, up to 30 bills were introduced in Congress to strip the court of its jurisdiction on cases involving flag burning, school prayers, and abortion. But once again, legislative support for such bills faltered after Reagan’s attorney general at the time, William French Smith, wrote letters to the House and Senate Judiciary Committee communicating the DOJ’s hesitation on any legislation that would restrict Supreme Court review based on subject matter.

Although those letters played a big role in the bills’ ultimate demise, Reagan’s DOJ did not reach its final conclusion easily. In fact, in a bizarre twist, the current chief justice of the Supreme Court, John Roberts, who was serving as a special assistant to the Attorney General in 1981, was one of the main dissenters to the DOJ’s position. Roberts himself penned a memo for the department arguing in favor of Congress’ power to remove the court’s jurisdiction over certain subjects—reiterating the arguments advanced by many other conservative legal thinkers, including Antonin Scalia.

Even if such a law passes Congress, it could throw the U.S. system of checks and balances into chaos. It is still unclear what would happen if the Supreme Court itself is called upon to review the constitutionality of the law and finds it to be unconstitutional. Although many believe that Congress and the White House could simply ignore such a decision, the Supreme Court’s refusal to simply accede to a jurisdiction-stripping law would impose a tough test on the political branches.

Regardless of these residual ambiguities, jurisdiction-stripping has its advantages over court-packing. Packing the court would involve confirming new justices that upon confirmation would be subject to life tenure and protection against removal, subject only to impeachment for cause. This makes the court-packing decision rather difficult to reverse. Jurisdiction-stripping on, the other hand is achieved through normal legislative procedures, and can therefore be easily reversed should the voters decide to change the political makeup of Congress and the White House again. In this way, jurisdiction-stripping measures are far more responsive to the will of the electorate.

Despite these legal uncertainties, the main impediment to passing such laws has always been political and not legal. In all instances, the party in control of Congress ultimately faced a reluctant White House which, at the last minute, saw the political damage to the administration’s credibility as serious enough to dissuade them from working with their party in Congress to move jurisdiction-stripping legislation through. Today, though, many people could see the confirmation of Barrett and the sudden rightward shift of the court as an overtly political takeover, and thus might be more disposed to viewing jurisdiction-stripping legislation as an antidote to hostility rather than hostility itself.

If Democrats are in control of Congress after the 2020 election, it might all come down to whether the White House would stop them.

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Caution and confidence keep Biden close to home in final days

By contrast, Trump crisscrossed the country over the weekend, holding multiple events in swing states. His campaign said that pace is only expected to ramp up to as many as six events in a single day in the runup to Election Day.

Biden’s low-key approach is highly unusual this close to an election, but it’s a testament to the extraordinary dynamics of the 2020 race, with a deadly pandemic reaching crisis levels in dozens of states. Democrats point to fresh polling that shows Trump’s rallies are a net negative for him in the nation’s core swing states, where concerns about the spread of coronavirus are strong.

Biden’s strategy is a sign of confidence and caution: The former vice president has stuck with his plan of running a slow-but-steady race premised on the idea that Trump steps all over himself when he’s out campaigning and best to keep making the election a referendum the president’s behavior. That, plus minimizing the threat of a Covid-19 infection.

“The biggest threat to Joe Biden is Covid. He can’t get it,” said Brad Coker, pollster for Mason-Dixon Polling & Strategy, whose last presidential survey showed Biden leading narrowly Trump in Florida. “Aside from the health implications, if Biden got Covid it would blow up his candidacy and his whole narrative of being safe, social distancing, wearing a mask.”

Coker said there was also an element of “confidence” to Biden’s travel schedule but compared it to the prevent defense in football where a “team is playing not to lose. They figure they probably have this thing won and that he shouldn’t make a mistake. It’s not as if they think him being on the campaign trail can seal this election up, but he could make a mistake. So why take the risk?”

Biden on Monday defended his travel schedule, telling reporters he planned to make the rounds in upcoming days and highlighting events he’s held virtually.

“I’m gonna be going to Iowa. I’m going [to] Wisconsin, I’m going to Georgia, I’m going to Florida, and maybe other places as well,” Biden said. “There’s a lot we have been doing as well, in terms of being online, and everything from fundraising efforts to making sure we meet — I met today with a group of leaders in the Democratic party, laying out where we’re going to go, getting their input and the like, so we’re constantly, there has not been a day that hasn’t been a 12-hour day yet.”

Biden said he hoped to win Pennsylvania “by the grace of God” and expressed confidence in the swing states of Michigan and Wisconsin.

“The blue wall has to be reestablished,” he said.

Still, even the thought of a lighter schedule triggers PTSD in some swing state Democrats who recall the rosy predictions of 2016 only to watch their nominee go down in flames.

In Wisconsin, Trump drew thousands of people to a Saturday rally in the Milwaukee suburb of Waukesha, even as he was criticized for holding a “super spreader” event at a time when the state was forced to open a field hospital on state fairgrounds as hospitals reached capacity. Trump plans another Wisconsin visit Tuesday and Vice President Mike Pence lands in the state on Wednesday.

Biden has visited Wisconsin just twice during the general election; the last time was Sept. 20. Hillary Clinton famously did not visit Wisconsin during the general election campaign then lost the state by fewer than 23,000 votes. Biden is ahead of Trump by 5 points in the pivotal battleground state, according to polling averages, but members of both parties believe the margin is narrower.

“I would hope that the mistake of 2016 is not replicated by not paying enough attention to Wisconsin,” said Terrance Warthen, former co-chair of Our Revolution Wisconsin. “I find it odd how little these guys — I don’t want to say work because you don’t know what he’s doing — but he seems rather content to just let his opponent shoot himself in the foot and I don’t think you can completely rely on that. I think you need to be out there every day at the very least, interrupting the news cycle.”

Trump has held 48 events in battleground states over 40 days, which includes time he took off the road after he became sick with Covid and was hospitalized. The president sometimes visited multiple cities in one day. In that same period, Biden held 37 events Biden traveled fewer than 29 days since the conventions.

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How the Senate GOP’s right turn paved the way for Barrett

The majority leader’s call with the president was sandwiched in between intense lobbying sessions with the president’s top aides on Sept. 19. Before speaking to Trump, McConnell told White House counsel Pat Cipollone and chief of staff Mark Meadows that Barrett had the strongest shot at confirmation. She was the “obvious” choice, McConnell said, even as Meadows quizzed him on Allison Jones Rushing, an appellate court judge.

On Monday, eight days before the presidential election, Barrett was confirmed. It’s a win not just for McConnell and Trump; it marks a sea change in how Republicans handle judicial nominees amid the decades-long war over abortion rights. Just two years ago, Barrett was seen as possibly too conservative to be confirmed by a narrow Republican Senate majority, and too hostile to Roe v. Wade. This time around, McConnell argued to the White House not to meet with anyone other than Barrett, according to the aides.

The shift comes after Republicans picked up two seats in the 2018 midterms along with a harder-right turn in the conference’s center of gravity. Soon Barrett began climbing the charts among Republicans to the point that when Ginsburg died in late September, she seemed almost inevitable. This spring, McConnell and Andrew Ferguson, his chief counsel, began discussing who they might have fill Ginsburg’s vacancy if it arose in the waning weeks of Trump’s term. In that meeting, the GOP leader and his top staffers settled on Barrett, according to the leadership aide.

By the time she was confirmed 52-48, every Republican other than Maine Sen. Susan Collins voted for her, with Collins only expressing opposition to confirming a high court nominee in an election year. There wasn’t even much drama in the end.

“We did a lot of outreach to find out where people were, who they liked. And by the time this one became vacant, there were a lot of unsolicited [requests from senators]: ‘I want Barrett,’” said Senate Majority Whip John Thune (R-S.D.). “The calculus going into this was probably a little different than it was before.”

With their majority in danger and Trump now an underdog in his reelection campaign, it could be years before Republicans can put another stamp on the high court. But they might not need to: they’ve clinched a conservative majority for perhaps decades. And Republicans are confident that Barrett will be a rock-ribbed majority-maker for the right that does not deviate from the conservative line like some other justices appointed by Republican presidents.

Still, there was plenty of maneuvering behind the scenes in the days after Ginsburg’s death. Lagoa, for one, had surfaced as a potentially more mainstream alternative to Barrett.

Sen. Marco Rubio (R-Fla.) appealed to Trump on Lagoa’s behalf and Trump responded that he “heard great things about her and liked her a lot,” Rubio recounted. But the Appeals Court judge was also seen as a gamble.

“Lagoa is a great judge but just no real paper trail, no real sense of what she would do even as a circuit judge,” said a person familiar with the nomination process. “Amy had three years under her belt. It seemed like the White House was running around trying to do anything but Amy.”

Sen. Josh Hawley (R-Mo.) had pledged that he would only support a Supreme Court nominee that understands “that Roe was wrongly decided.” Two days after Ginsburg’s death, Hawley raised concerns to Cipollone about Lagoa’s lack of record on Roe, raising the prospect of a difficult confirmation hearing.

“I’m not asking you to confirm or deny if these are the two final contenders. But I’ll just tell you right now, if it’s Barbara Lagoa … my problem with her is that I don’t see anything when it comes to Roe,” Hawley said he told told Cipollone of Lagoa and Barrett.

Trump offered the job to Barrett one day later, just three days after Ginsburg’s death. One other question still remained for the GOP: should the confirmation be jammed in before the presidential election?

Sen. Mike Lee (R-Utah) immediately began to call his colleagues after Ginsburg’s passing about their preferred timing. Lee favored confirming her before the election; he found many agreed.

“I did not see a lot of debate occurring within the conference,” Lee said in an interview.

But despite the lightning quick vote, Barrett’s confirmation to the Supreme Court was years in the making.

Former White House Counsel Don McGahn played a key role in pushing Barrett’s nomination to the 7th Circuit Court of Appeals, and even attended her confirmation hearing and swearing in.

Barrett particularly impressed conservatives with her handling of questions about her Catholic faith from Sen. Dianne Feinstein (D-Calif.), who said at a 2017 hearing that “the dogma lives loudly within you.”

“Because of the skill and the aplomb with which she responded, I think that might have been one of the moments that caused people to start thinking of her as a Supreme Court nominee,” Lee recalled. “She would have been fully justified in responding much more angrily than she did.”

Shortly after her confirmation to the Appeals court, Barrett was added to Trump’s Supreme Court shortlist and she was widely viewed as the runner-up to Supreme Court Justice Brett Kavanaugh in 2018.

Trump at the time made it clear to several individuals that he would save Barrett for a potential Ginsburg vacancy, according to Leonard Leo, the former executive vice president of the Federalist Society who has played a key role in advising Trump’s nominees.

But at the time, Trump’s sentiment seemed somewhat divorced from reality on Capitol Hill. Barrett’s personal opposition to abortion rights would likely lose Collins and Lisa Murkowski (R-Alaska), the thinking went, dividing the party on one of the few unifying priorities: judges.

Yet the arrival of Hawley and other conservatives on the Judiciary Committee along with the departure of Trump critic Jeff Flake (R-Ariz.) set the stage for Barrett’s ascendance. Hawley was emblematic of how quickly the party had shifted.

He had spent a year and a half on the warpath against what he saw as squishy vetting of the party’s judicial nominees, beginning in 2019 with Neomi Rao, a nominee for the D.C. Circuit Court who was viewed with suspicion by anti-abortion groups. Eventually Rao was confirmed with Hawley’s support, but conservatives warned if she were picked for the Supreme Court it would be an entirely different situation.

Over the summer, Cipollone asked Leo about Rao in a call. Leo responded that if she were included on Trump’s next list of potential Supreme Court picks, she could be attacked by some conservatives and that may not be good for her or the president, according to an individual close to the White House.

The list released in September 2020 included Hawley’s name, along with Sens. Ted Cruz (R-Texas) and Tom Cotton (R-Ark.). One name was notably not on the list: Rao.

Even after Barrett was nominated there was still discomfort among some Republicans with emphasizing her conservative personal views on social issues, particularly her opposition to abortion. In their fight against Barrett, Democrats warned she could overturn the landmark Roe decision if confirmed.

Throughout her confirmation process, Republicans insisted Barrett could separate her personal views from her judicial decisions, though most avoided talking about how she might rule on abortion cases. Sen. Lindsey Graham (R-S.C.) even approached Hawley on the Senate floor and urged him to focus on the legalese “substantive due process as a legal process” as an alternative to abortion.

Hawley wasn’t persuaded.

“I want to try and do my part to make it okay for people to be openly pro-life to be openly critical of Roe, to be a religious conservative,” Hawley said in an interview. “I think that’s okay. You don’t have to hide that.”

And by the time she was nearing confirmation, most Republicans weren’t shying away from her anti-abortion stance — they were embracing it. Now involved in a tough race for reelection, Graham saw the issue as a cudgel to use against his opponent.

“This is the first time in American history that we’ve nominated a woman who is unashamedly pro-life,” Graham said during Barrett’s confirmation hearing. “And she is going to the court.”

During those hearings, Barrett frustrated Democrats by declining to answer questions about the Affordable Care Act, abortion or the upcoming election. But even under normal circumstances, her conservative views would have been too much for all but perhaps one or two Democratic senators.

In the end, even Murkowski was swayed, perhaps the most shocking event during the entire confirmation process. She had opposed confirming a Supreme Court justice so close to the presidential election, but said on Saturday that she didn’t hold it against Barrett, who she said had “navigated the gauntlet with grace, skill and humility.”

“Political consultants are always trying to say, ‘I did this and I did that and I should take credit.’ That’s how they earn their living,” said Sen. John Kennedy (R-La.), a member of the Judiciary Committee. “Judge Barrett won this one.”

John Bresnahan and Meridith McGraw contributed to this report.

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Civil rights groups sue de Blasio, NYPD over protest response

The suit charges that de Blasio, who publicly defended the NYPD’s response to the protests, maintained a de facto policy of allowing police officers to violently target protesters by approving forceful deployments and failing to discipline officers for their actions. In addition to the mayor, Shea and Chief of Department Terence Monahan are named as defendants.

“The Mayor of New York and the NYPD’s leadership condoned and even promoted that violence,” the lawsuit says. “As the protests continued and well documented, indisputable patterns of unlawful use of force emerged, the Mayor, the Commissioner, and Chief Monahan deliberately did not take steps to prevent police from using those tactics again and again. Instead, they repeatedly praised the actions of the NYPD, promoting, authorizing, sanctioning and encouraging further violence.”

De Blasio instituted a curfew in the city for the first time in decades in response to incidents of looting and vandalism.

In the face of outcry over police officers using force to disperse peaceful protesters, including from many of his own former aides and supporters, de Blasio mostly defended the NYPD — maintaining that the police force “uses as light a touch as possible,” though he acknowledged he had not seen widely circulated videos of cops rushing protesters and striking them with batons.

“He’s the apologist in chief,” Lieberman said.

The suit says the attacks on protesters were directed by NYPD supervising officers, including the highest ranks of police leadership, and carried out in retaliation for the demonstrators’ anti-police message.

The actions of de Blasio, Monahan and Shea “constitute a City policy to engage in excessive force, discriminate on the basis of viewpoint against those fighting for greater police accountability for brutality, and retaliate against people engaged in their constitutionally protected right to protest,” the suit says.

The NYPD said it would review the suit. The mayor’s office did not respond to a request for comment.

Bronx resident Vidal Guzman, one of the plaintiffs, said he was pepper sprayed in the face while protesting on the Lower East Side at the end of May and fell to the ground when hit with the spray, injuring his leg.

“A lot of people got injured that day,” he said. “It felt more like World War III, and the people they were going against were their own citizens.”

The suit asks a judge to rule that the city violated the First Amendment, which protects the right to protest, and the Fourth Amendment, which protects against unreasonable search and seizure, and to award damages to the plaintiffs.

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In Wisconsin decision, Supreme Court foreshadows election night cliffhanger

Kavanaugh also quoted a prominent law professor’s caution that allowing the election to drag out could fuel claims of foul play.

“Late-arriving ballots open up one of the greatest risks of what might, in our era of hyperpolarized political parties and existential politics, destabilize the election result,” New York University Professor Richard Pildes wrote in a June law review article about the challenges posed by this year’s election. “If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode. The longer after Election Day any significant changes in vote totals take place, the greater the risk that the losing side will cry that the election has been stolen.”

Kavanaugh, an appointee of President Donald Trump, did not mention any prominent politicians already stoking such fears. But one is Trump himself.

Indeed, just about 10 minutes after the justices issued their decision in the Wisconsin dispute, Trump tweeted out his latest warning that any results that come in after election night should be considered illegitimate.

“Big problems and discrepancies with Mail In Ballots all over the USA,” Trump wrote, without offering evidence for his assertion. “Must have final total on November 3rd.” (Twitter labeled the post “disputed,” saying it “might be misleading about how to participate in an election or another civic process.”)

Republicans and Trump’s campaign have taken a series of legal actions to enforce ballot-receipt deadlines and are even arguing that federal law requires that every ballot counted come in by Election Day. Democrats and civil rights groups have pressed for extensions of the deadlines in various states, citing postal delays and the massive surge in people seeking to use mail-in ballots because of the coronavirus pandemic.

Justice Elena Kagan used her dissenting opinion in the Wisconsin case on Monday to deliver a tart reply to Kavanaugh’s stated fears about a drawn-out vote-counting process. She also signaled that if a legal fight erupted after Election Day, the court’s liberals would be inclined to make sure every vote was counted and would look with disfavor on arbitrary deadlines that nullify some votes.

“Justice Kavanaugh alleges that ‘suspicions of impropriety’ will result if ‘absentee ballots flow in after election day and potentially flip the results of an election,’” Kagan wrote, joined by Justices Stephen Breyer and Sonia Sotomayor.

“But there are no results to ‘flip’ until all valid votes are counted. And nothing could be more ‘suspicio[us]’ or ‘improp[er]’ than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process.”

Zach Montellaro contributed to this report.

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Brexit makes Britain ‘less useful to the US,’ says former top diplomat – POLITICO

LONDON — Britain is no longer Europe’s “center of gravity” in the eyes of America — and particularly if Joe Biden is elected president next month — according to former senior diplomat and cross-bench peer Peter Ricketts.

After 40 years defending Britain’s interests in the world, Ricketts offered a sobering interpretation of the impact Brexit is having on the U.K.’s international standing.

“When Biden looks towards Europe, he will see Paris and Berlin more as the center of gravity of what’s really important for America in Europe, both economically and in security terms, and Britain will be seen rather as an outlier, rather outside the mainstream of Europe,” he said.

“There will continue to be an important bilateral relationship on defense and security of course, but in other areas, Britain will not have the same prominence it has been used to having in Washington because, frankly, Britain is less useful to the U.S. administration.”

The U.K.’s former ambassador to Paris and NATO and longtime critic of Boris Johnson now spends his time scrutinizing government policy on security and justice in the House of Lords, researching conflict and security topics as a visiting professor at King’s College London, and advising aerospace company Lockheed Martin U.K.

With the U.S. election just a week away, Ricketts is the latest in a string of former diplomatic heavyweights to offer Downing Street advice about how to navigate a possible change of the guard in the White House.

Ivan Rogers, who was the U.K.’s permanent representative in Brussels from 2013 to 2017, told the Observer Johnson is biding his time to see the result of the U.S. presidential election before deciding whether to opt to leave the European Union without a trade deal. While Downing Street rejected Rogers’ theory, telling POLITICO’s London Playbook it was “demented,” the U.K. government, along with the rest of the world, is certainly watching events across the Atlantic with interest.

Speaking to POLITICO from his home in London, Ricketts said a Biden victory in the U.S. presidential election on November 3 will usher in a “much less confrontational, more courteous and consultative style” towards America’s international partners, Britain included. But, he added, Downing Street should not delude itself thinking this will make its dealings with the U.S. any easier.

‘Thin’ Brexit deal still likely

Many in Europe will be “encouraged” if Biden wins, Ricketts said, and will be “eager to establish new relations” with the new White House, probably pushing Brexit down Europe’s list of priorities.

The EU and the U.K. are immersed in an intensified period of Brexit negotiations, with EU negotiator Michel Barnier and his team now expected to remain in London until Wednesday with talks continuing in Brussels after that. Both sides hope a trade deal can be struck in the next two to three weeks, which can then be ratified in time for the end of the Brexit transition period on December 31.

The British government would face the challenge of building relations with Biden’s team, who view Brexit as a risk to both Europe and Britain’s stability, Ricketts said. Biden already sent a warning shot last month, when he tweeted that “the Good Friday Agreement that brought peace to Northern Ireland” cannot become “a casualty of Brexit.”

The U.K. must prepare for a Biden administration that keeps a particularly close eye on how Brexit affects Ireland, given the Irish influence in the Democratic party and Biden’s own Irish background. Biden’s administration will prioritize trade with the EU just as the U.K. “has put itself out of an influential position in Europe,” Ricketts said.

“The Biden administration would be very careful, very prudent about how to deal with this Brexit Britain,” he added.

Despite last week’s ping-pong between London and Brussels, which Ricketts rejects as part of Downing Street’s “negotiating theater,” designed to sell any future deal to the hardline Brexiteers of the Conservative party, he is cautiously optimistic about the chances of a EU-U.K. future relationship deal being struck this fall.

The political impasse on issues such as state aid and fisheries may be broken with last-minute phone calls between Johnson and some EU leaders, but Ricketts warned Downing Street against placing its faith in German Chancellor Angela Merkel.

“I’m afraid in London our political leaders have long expected Merkel to solve the problems for us, to pull our chestnuts out of the fire. And usually that has proven wrong, because although she is a very, very serious and thoughtful politician, she can’t do miracles,” he said, adding that he does not believe French President Emmanuel Macron would risk a collapse of the negotiations over fisheries.

“President Macron is playing a card that he knows if he overplays it his fishermen will end up with nothing. So at the end of the day I don’t think fisheries will be the issue in which these negotiations break down.”

A Downing Street spokesperson said Brexit talks had intensified but the U.K. would not accept proposals that “undermine our status as a sovereign, independent country.”

“Our trade negotiations with the U.S. are entirely separate from ongoing negotiations with the EU, and they are continuing to progress at pace,” the spokesperson said. “We’ll continue to work with whoever the next U.S. president is to ensure a good outcome that benefits both countries.”

Ricketts predicts the U.K. and EU will most likely strike a “thin” deal, leaving out many important aspects for their bilateral cooperation, particularly security and defense — an area of special interest for the chair of the Lords EU security and justice committee, and former national security adviser to former Prime Minister David Cameron.

“You can be sure that any deal that the Johnson government signs will be trumpeted as a great victory and it will be attributed to the tough negotiating tactic that has been followed,” he said. “In practice, I think the EU has been largely setting the agenda through these negotiations, which is partly why Britain has lost reputation as a result.”

This article has been updated with a response from Downing Street.

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Medicare and Medicaid to cover early Covid vaccine

The administration is “working to ensure that no American has to pay for the vaccine,” said one official. The administration’s planned rule also will address other Covid-19-related issues, like expanding flexibility for Medicaid patients seeking care for the coronavirus, two people familiar with the plan said.

CMS did not respond to a request for comment about the plan or how it would pay for the cost of vaccines for the roughly 120 million Americans who receive health coverage through Medicare and Medicaid.

CMS Administrator Seema Verma teased the announcement earlier this month in remarks at the HLTH virtual conference.

“I think we’ve figured out a path forward,” Verma said on Oct. 13. “It was very clear that Congress wants to make sure that Medicare beneficiaries have this vaccine and that there isn’t any cost-sharing.”

“And so, stay tuned, you’ll see more from the agency on this very shortly,” Verma added.

Congress in March sought to mandate free coronavirus vaccine coverage as part of a broader Covid-19 relief bill. But under its current rules, the Medicare program doesn’t cover the cost of drugs authorized under emergency use designations — leaving millions of Americans at risk of facing expenses tied to the vaccine.

The Trump administration later determined that it could not fix the loophole through an executive order, setting off a scramble within the health department to find alternative solutions.

Earlier this month, the administration struck a deal with CVS and Walgreens to administer an eventual vaccine with no out-of-pocket costs to seniors and health workers in long-term care facilities. Yet that arrangement only covered a narrow slice of the nation’s more than 60 million Medicare enrollees.

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Twitter labels Trump post about mail ballots as ‘disputed’ and ‘misleading’

The president’s tweet came as the Supreme Court rejected a six-day extension for absentee ballots in Wisconsin amid the coronavirus pandemic, with the court siding with Republicans and splitting 5-3 along ideological lines. The court’s order came just minutes before the Senate voted to confirm Judge Amy Coney Barrett as Trump’s third nominee to the high court.

Trump’s misleading claim on Monday added to his continued assault on mail-in voting. While mail-in ballots have proved to be secure and are already used broadly in several states, the president has issued false and misleading information about the process.

In the first presidential debate last month, the president challenged the security of the November election, claiming mail ballots might be “manipulated.”

“This is going to be fraud like you’ve never seen,” the president said of the expansion of mail voting during the pandemic, without offering any evidence to support such a broad assertion.

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Supreme Court won’t extend Wisconsin ballot deadline

The order from the justices emerged just before the Senate voted to confirm Judge Amy Coney Barrett as President Donald Trump’s newest nominee to the high court. Barrett will be sworn in in a private ceremony on Tuesday.

A district court judge in Wisconsin issued an order on Sept. 21 pushing back the state’s due date for mail ballots from the close of polls on Election Day to Nov. 9, as long as they were postmarked by Nov. 3. Earlier this month, a three-judge panel of the 7th Circuit Court of Appeals split, 2-1, and suspended the lower court’s ruling.

While all the Supreme Court’s Democratic appointees joined in a single dissent written by Justice Elena Kagan, not all the Republican appointees explained their rationale.

However, several of the court’s conservatives signaled that they were abiding by legal precedents calling for federal courts to avoid making changes to voting procedures in the period shortly before an election.

“In this case, as in several this Court has recently addressed, a District Court intervened in the thick of election season to enjoin enforcement of a State’s laws,” Chief Justice John Roberts wrote in a solo concurring opinion, calling the lower court’s action “improper” and denying Democrats’ application to lift the stay granted by the appeals court.

In Kagan’s dissent, the court’s liberal wing decried the majority’s ruling, arguing that it displayed an indifference to voters impacted by the pandemic.

“Because the Court refuses to reinstate the district court’s injunction, Wisconsin will throw out thousands of timely requested and timely cast mail ballots. And today’s decision does not stand alone,” Kagan wrote, joined by Justices Stephen Breyer and Sonia Sotomayor. “As the COVID pandemic rages, the Court has failed to adequately protect the Nation’s voters.”

Justices Neil Gorsuch and Brett Kavanaugh wrote opinions arguing that permitting the extension the judge granted in Wisconsin would open the door to micromanagement of elections by the federal courts.

Roberts appeared to concur with the basic thrust of Gorsuch and Kavanaugh’s opinions but emphasized that the presumption against late interventions applies to federal courts, not necessarily state ones. Roberts recalled a similar battle in Pennsylvania, where he joined the court’s liberal bloc in a 4-4 tie last week, which effectively upheld an order from the commonwealth’s Supreme Court extending ballot return deadlines in the state.

“While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes,” Roberts wrote. “Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin.”

Republicans have since asked the Supreme Court to take up the case fully and on an expedited basis, teeing up a decision on if state courts have the authority to interpret state election statutes and vary from them under some circumstances.

Wisconsin normally mandates that ballots are in the hands of election officials by Election Day for them to count, regardless of when they are mailed. After a back-and-forth legal battle in early April, which ultimately made its way to the Supreme Court, ballots that were postmarked by the state’s spring election, which featured the presidential primary and a hotly contested state Supreme Court race, and returned by the following Monday would count.

This, in effect, franchised over 79,000 Wisconsin voters, whose ballots arrived between the spring election on April 8 and the new deadline on April 13, according to a report from the state’s election agency. They accounted for roughly 7 percent of the total absentee ballots returned.

The Supreme Court has yet to act on a similar emergency application from North Carolina, where Republicans are seeking to overturn the state election board’s agreement to extend the receipt period for postmarked ballots to nine days after the election, up from the usual three days.

Last week, a bitterly-divided federal appeals court voted, 12-3, not to disturb the extension. Notably, though, three Trump appointees joined with the court’s Democratic appointees in declining to block the extension.

Assuming no action on the North Carolina case before Barrett is sworn-in, the justices will now have to consult their new colleague on her views. While Justice Clarence Thomas is scheduled to conduct a ceremonial swearing-in for Barrett later Monday night at the White House, the court said in a statement that she will not officially assume her role as a justice until she takes the judicial oath from Roberts Tuesday in a private ceremony at the high court.

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Progressive Caucus eyes shakeup to boost power next Congress

The biggest revision being considered would move the CPC from two chairs to one. This would be seen as boosting Jayapal’s profile within the House, said several Democratic lawmakers and aides who speculated it could be a launching pad for future leadership ambitions. Jayapal laughed off the claim, saying she’s running to be the chair of the CPC and nothing more.

Other potential changes include new policies for attendance and voting requirements that could result in some lawmakers being put on probation by the group if they don’t meet certain thresholds, including on caucus unity. CPC leaders say those reforms — including having a single chair — would put them in line with virtually every other Democratic caucus within the House.

Lawmakers who are unhappy with the proposed changes declined to go on the record for fear of a backlash. But some of the internal friction over the rules changes have boiled over in recent days. Rep. Jamie Raskin (D-Md.), a leader of the task force in charge of the reforms package, resigned as chairman over the weekend, though he remains part of the panel.

“I am still a member of the task force, but I did resign as the chairman of the task force on reform,” Raskin confirmed in an interview Monday. “The co-chairs of the CPC — Mark Pocan and Pramila Jayapal — have really taken the lead on the bylaw reforms, and they are much better spokespeople for the proposed changes.”

Raskin was expected to run for the co-chair position being vacated by Pocan but is not going to challenge Jayapal for the sole chairmanship if the reforms package is enacted, according to multiple CPC members. The Maryland Democrat said while “many” of his ideas have been incorporated into the proposal, he “had a different perspective” about part of it, but he declined to be specific.

Among the proposed changes is an attendance mandate, which would require members to be present for at least 50 percent of meetings, with exceptions for congressional duties like committee hearings and family emergencies.

Another new policy would allow any member to seek a formal CPC position on a bill, putting the caucus on the record for or against any legislation as long as two-thirds of the members agree.

That’s a major departure from the current policy, under which Jayapal and Pocan would simply decide whether the caucus should take a formal stance on a bill. Members will also be expected to vote with the CPC two-thirds of the time on the House floor whenever the group takes an official position or risk probation.

“It’s not us deciding what we’re whipping on. It’s the members deciding. So we’ve taken away the ability for one or two people to have the solitary say of the entire caucus,” Pocan said in an interview Monday.

Pocan, who said he “self term-limited” after two terms leading the caucus, also backed Jayapal in the decision to consolidate leadership into a single post, rather than two co-chairs. Asked about some members’ concerns that it centralized too much power in one person, Pocan argued: “It actually does the opposite of that. … The heart of this is really around empowering members to be more active.”

Several progressives acknowledged that the stricter rules may upset some within the diverse group, with a few lawmakers telling POLITICO they may choose to leave all together.

Rep. Judy Chu (D-Calif.), a senior progressive who helped shape the changes, said the biggest concerns she’s heard so far are over the attendance policy and expects a “vigorous dialogue” on Tuesday, though she thinks people will be on board when they read the details.

Several CPC leaders, including Jayapal and Pocan, added that the intention is for members to be more involved within the group, not to shrink the roster.

“We are the progressive caucus, the intent is to have people who are intentional in being part of the progressive caucus,” Rep. Ilhan Omar (D-Minn.), who serves as CPC whip, said in an interview.

Omar added that she’s been hearing positive feedback from many potential incoming progressives, as well as the caucus’ current members, as she has whipped for the proposed changes in recent days.

Already one of the largest Democratic caucuses, the CPC is expected to gain prominent members, including two progressives who ousted long-time Democratic incumbents — Jamaal Bowman in New York and Cori Bush in Missouri. Other rising liberal stars, Ritchie Torres and Mondaire Jones in New York, are also expected to join once elected in November.

But the CPC at times has struggled to wield its influence since Democrats recaptured the House majority in 2018, even after the emergence of Ocasio-Cortez and the “Squad” — Omar and Reps. Rashida Tlaib (D-Mich.) and Ayanna Pressley (D-Mass.) — brought unprecedented national attention to the rising left.

House progressives were always going to struggle to enact their agenda in a divided Congress with a Republican-controlled White House and Senate. Still, Pelosi has paid heed to the left wing of her caucus — tucking their priorities into the House’s coronavirus response bills, for example, or teeing up liberal messaging bills on the floor.

At the same time, Pelosi has sought to balance competing demands from her centrist members — a far smaller group, but one that tends to be more willing to vote as a bloc and which delivered Democrats the majority in 2018.

Jayapal and Pocan have been careful to avoid the “Freedom Caucus” label, even as many in their caucus felt emboldened by the 2018 Democratic takeover of the House. The conservative group frequently tormented GOP speakers and became known as hard-liners who could shut down the government but rarely implement their agenda.

The two progressive co-chiefs usually raised issues with Pelosi privately, rather than make demands or threats through the press, with exceptions for high-profile battles with moderates over the budget and immigration.

Rep. Ro Khanna (D-Calif.), a member of the reforms task force, said he doesn’t expect the CPC to suddenly transform into a left-leaning group of bomb-throwers, even with the new caucus changes.

“We could never be — nor do we aspire to be — the Freedom Caucus,” Khanna said Monday. “The reason for that is we’re trying to build something, not tear something down.”