Supreme Court Decides ‘Democracy’ Can Stay, For Now

Fears of the End of the Republic were forestalled until sometime between the next Trump rally and November 2024, as the Supreme Court decided today that state legislatures can’t just make up any old election laws — or results — they want to, without any oversight from state or even federal courts. In Moore v. Harper, the Court decided in a six to three decision — which should have been nine to zero — that the so-called “independent state legislature theory” is dumb and bogus, not to mention seriously fucked in the head. We paraphrase, but only slightly; Chief Justice John Roberts, writing for the majority, actually said the idea was “Insane in the membrane, insane in the brain.”

As many suspected following the oral arguments in December, the three dissenting justices were Clarence Thomas, Samuel Alito, and Neil Gorsuch, who probably belong on a terror watch list.

Previously:

Big Day At Supreme Court As It Hears Case Of ‘Democracy v. LOL’

Moore v Harper Oral Hearings: Democracy Maybe Only MOSTLY Dead!

NC Supreme Court Brings Back The Racist Gerrymandering Republicans Need To Win

The Independent State Legislature (ISL) Fan Fiction, as NYU Law Prof Melissa Murray likes to call it, starts with a thing that is real and then piles on, with no precedent or reason at all, a bunch of assumptions with virtually no actual backing in case law, US history, or common sense. The Constitution’s elections clause says simply that

The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.

According to the fabulists who made up the ISL foolishness a few decades ago, that clause means that no other state authority, including state courts, governors, or county elections officials, can challenge the legislature’s decisions on federal elections, even if they appear patently unfair.


The case involves an extreme gerrymander passed in 2021 by the heavily Republican North Carolina Legislature, which would give the vast majority of the state’s 14 congressional seats to Republicans. As the Brennan Center explains, the redistricting maps are “so extreme that an evenly divided popular vote would have awarded 10 seats to the Republicans and only four to the Democrats.”

Because North Carolina’s constitution includes a “free elections clause” that prohibits such partisan gerrymandering, the state Supreme Court struck down the map in 2022, calling it an

egregious and intentional partisan gerrymander . . . designed to enhance Republican performance, and thereby give a greater voice to those voters than to any others.”

That prompted the North Carolina Lege to turn right around and pass a whole new extreme partisan gerrymander, and when it was challenged in state courts, Republicans went to the US Supreme Court to demand that it let the map stand, because independent state legislature, can’t you people even read?

In his decision today, Roberts wrote — actually this time — that several previous Supreme Court precedents had already made clear that state legislatures do not have “exclusive and independent authority when setting the rules governing federal elections,” and that the Elections Clause doesn’t invalidate the fundamental principal of judicial review as established in Marbury v. Madison. He also pointed out that “when legislatures make laws, they are bound by the provisions of the very documents that give them life,” i.e., state constitutions, and so obviously state courts have the power to rein in a state legislature in keeping with that state’s constitution. “You stupidheads,” Roberts did not add.

[NYT / Moore v. Harper]

While we’re at it, let’s also take a quick look at some other Supreme Court decisions we haven’t written about yet this term, just so we have ’em on record for you:

Sex Abuse Lawsuit Against Ohio State U Can Go Forward, you listening, Rep. Jordan?

On Monday, the Court decided not to hear an appeal of a lower court decision that allows more than 230 men to sue Ohio State over sexual abuse by the late Dr. Richard Strauss, who worked at Ohio State from 1978 to 1998. The university has apologized to those abused by Strauss, who killed himself in 2005, and has settled lawsuits with at least 296 victims, to the tune of over $60 million. But it tried to have the unsettled cases dismissed, claiming that the time limit to sue had expired. The AP explains:

The remaining plaintiffs have argued that they filed timely claims and that the time limit didn’t start running until the 2018 investigation into Strauss’ abuse made his conduct public. The men say that was when they first learned that the school had been aware of Strauss’ abuse and failed to protect them from him. Many also only realized then that they’d been victims of abuse since Strauss disguised his abuse as medical care, their lawyers said.

Among those named in the lawsuits is Rep. Jim Jordan, who was the assistant wrestling coach at Ohio State from 1986 to 1994 but insists he never knew what Strauss was up to. A spokesman for Jordan yesterday reiterated Jordan’s claim that he “never saw or heard of any abuse, and if he had, he would have dealt with it.”

[AP / NBC News]

If Alabama Has To Fix Its Racist District Maps, So Does Louisiana

In another short, unsigned decision, the Court on Monday slapped down an “emergency” attempt by Louisiana to block a lower court’s finding that Louisiana has to redraw its congressional district maps to create at least two districts where Black voters have a chance to elect a congressional member of their choice. The Supreme Court refusal to fast-track the case follows its decision earlier this month to toss out a similar racial gerrymander in Alabama, a decision that left many surprised that the Court hadn’t decided to stomp a little more life out of the Voting Rights Act.

The case now goes back to the notoriously rightwing Fifth Circuit Court of Appeals, which may end up affirming Louisiana’s contention that no, its racial gerrymander is very different and more constitutional than Alabama’s, so it’s entirely possible the case will still make it back to the Supremes next term anyway.

[CNN / TPM]

Hey Navajo Nation, You Get A Reservation. Water Rights Not So Much

In one of the more bizarre rulings in a while, the Court decided last week that the US government’s 1868 treaty with the Navajo Nation, which established the largest Native American reservation in parts of Arizona, New Mexico, and Utah, didn’t actually require the government to ensure that the tribe would have access to water. ProPublica tries to explain what seems inexplicable: After decades trying to negotiate with the state of Arizona, the Navajo Nation sued, in hopes of getting the Court to define what the tribe’s water rights were, and to order Arizona to stop delaying and allow the Navajo Nation reliable access to water.

ProPublica notes that while tribes have always had to negotiate for water with states, the federal government has also acted on tribes’ behalf by “helping account for how much is needed and available.” But when it came to intervening in the protracted negotiations between the tribe and the state, the Court, in a 5-4 decision, said nah, not our job.

Writing for the majority, Justice Brett Kavanaugh said the tribe’s treaties do not impose “a duty on the United States to take affirmative steps to secure water for the Tribe.”

The case has been dragging through the federal courts since 2003, eventually accumulating briefs from “four states, more than 100 tribes and 27 trade groups representing mining companies and other water-intensive industries.” So much for all that! Now it’s back to the Navajo Nation trying to get an agreement with Arizona, which is already fighting to get enough dwindling Colorado River water for its very important subdivisions and agriculture barons.

Navajo Nation President Buu Nygren said he hopes an agreement may be more likely with Arizona’s new governor Katie Hobbs, who promised while campaigning last year that she would work with tribes to resolve water claims.

Following the Court’s decision last week, Hobbs announced the appointment of four tribal officials — from the Navajo Nation, the Colorado River Indian Tribes, the Gila River Indian Community, and the Ak-Chin Indian Community — to the “Governor’s Water Policy Council,” which already includes Maria Dadgar, the executive director of the Inter Tribal Council of Arizona. So at least there’s a formal place at the water policy table, which is different from the water table (just a little hydrology joke there).

Justice Neil Gorsuch continued his advocacy for tribal rights with a scathing dissent in which he agreed with tribes that the 1868 treaty does so guarantee “enforceable water rights” that the federal government is obligated to define.

“The Navajo have tried it all. They have written federal officials. They have moved this Court to clarify the United States’ responsibilities when representing them. They have sought to intervene directly in water-related litigation,” Gorsuch wrote. “At each turn, they have received the same answer: ‘Try again.’”

ProPublica also notes — drily, as is only appropriate — that if negotiations with Arizona go nowhere, the Navajo Nation’s “other option is continuing a water adjudication case in state court that began in 1978, involves 14,000 claims and has no end in sight.”

[ProPublica / Gov. Katie Hobbs / NBC News]

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Supreme Court Upholds Tribal Adoption Rights, What Horror Is This Leading Up To?

The US Supreme Court on Thursday upheld the law that gives Native American tribes preference in adoption and foster care cases involving Native children, rejecting the argument that it’s racist against white people. In a 7 to 2 decision, the Court let stand the 1978 Indian Child Welfare Act (ICWA), which Congress wrote to address concerns that Native kids were being taken away from their families, a legacy of the US government’s attempts to wipe out Native American tribes through forced assimilation. The ’70s were a crazy time, with the disco and the occasional congressional efforts to provide at least some justice for past discrimination.

Previously

Will Supreme Court ‘Increase Domestic Supply Of Infants’ By Stealing Native American Babies?

You Guys, The Fifth Circuit Ruled *For* The Welfare Of Indian Children

What The Hell Is It With Republicans Crapping On Native Americans?

Under the ICWA, as Vox explainered, if a child is a member of a Native American tribe or even is eligible for membership, then any adoption or foster placement needs to give first preference to the child’s extended family, and then to another Native American family, ideally in their own tribe or if necessary another tribe.

The law aims to keep Native children within Native communities, after over a century of US attempts at genociding Native Americans and, for most of the 20th century, actively attempting to alienate people from their tribal identities — first by taking Native kids from their families to Indian schools that aimed to assimilate them into the dominant Anglo culture, and later by encouraging adoptions of Native kids by white parents.


(A quick note on language here: Federal law and court cases use the term “Indian,” which has very specific meanings in law, so at times we will too, even if in the wider culture it’s no longer the preferred nomenclature, Dude.)

The case, Haaland v. Brackeen, has been making its way through the federal courts for years. It involves a white Texas couple, Jennifer and Chad Brackeen, who in 2016 were appointed as foster parents of a 10-month-old boy whose birth parents were Navajo and Cherokee. God told the Brackeens they needed to adopt the boy, but they found themselves in a legal fight with the Navajo Nation. Eventually they did adopt the boy, but they also wanted to adopt his half-sister, and here we are at the Supreme Court, with the Brackeens and the state of Texas (and a few other plaintiffs) arguing that the 1978 law was unconstitutional because it was an illegal racial preference and discriminated against non-Indian parents, and that by superseding state family law courts, Congress had overreached.

Ultimately, though, the Court, in an opinion written by Justice Amy Coney Barrett, rejected that claim, as the New York Times explains:

The tribes have said that they are political entities, not racial groups. Doing away with that distinction, which underpins tribal rights, they argued, could imperil nearly every aspect of Indian law and policy, including measures that govern access to land, water and gambling.

The majority dismissed the equal protection argument, saying that no party in the case had legal standing. Instead, the justices focused on Congress’s longstanding authority to make laws about tribes. […]

“Our cases leave little doubt that Congress’s power in this field is muscular, superseding both tribal and state authority,” Justice Barrett wrote, adding that its authority touched on subjects as varied as criminal defense, domestic violence, property law, employment and trade. She added, “The Constitution does not erect a firewall around family law.”

The two dissenting justices, Clarence Thomas and Samuel Alito, each wrote their own dissents. Alito griped that the law focused too much on the tribes’ rights and not the right of the child to have the best family, which we presume was shorthand for a white family, because we’re just that mean. Thomas was his usual “government overreach, boo, hiss!” self, contending that the law wasn’t fair because some of the Native kids involved in adoptions regulated by the ICWA “may never have even set foot on Indian lands.”

Justice Neil Gorsuch, who’s been consistently friendly to Tribal interests in federal law, wrote a concurring opinion in which he said the majority opinion “safeguards the ability of tribal members to raise their children free from interference by state authorities and other outside parties.” Gorsuch explained that he agrees completely with the majority, but also wanted to provide “some historical context” with an overview of “how our founding document mediates between competing federal, state, and tribal claims of sovereignty.”

Here’s his introduction, which genuinely makes me want to read the rest this weekend.

The Indian Child Welfare Act did not emerge from a vacuum. It came as a direct response to the mass removal of Indian children from their families during the 1950s, 1960s, and 1970s by state officials and private parties. That practice, in turn, was only the latest iteration of a much older policy of removing Indian children from their families—one initially spearheaded by federal officials with the aid of their state counterparts nearly 150 years ago. In all its many forms, the dissolution of the Indian family has had devastating effects on children and parents alike. It has also presented an existential threat to the continued vitality of Tribes—something many federal and state officials over the years saw as a feature, not as a flaw. This is the story of ICWA.

Well yeah, that’s all impressively true, which led to a very reasonable question from “Southpaw” on Twitter: How the hell is it that Gorsuch is

so attuned to—and frankly eloquent at exposing—structural racism in Indian affairs, but so seemingly indifferent to it in other aspects of American life?

New Republic legal writer Matt Ford suggested that it comes down to Gorsuch’s weird originalism, pointing out that in his concurrence, Gorsuch writes,

Our Constitution reserves for the Tribes a place—an enduring place—in the structure of American life. It promises them sovereignty for as long as they wish to keep it. And it secures that promise by divesting States of authority over Indian affairs and by giving the federal government certain significant (but limited and enumerated) powers aimed at building a lasting peace.

Bummer for anyone else who’s faced systemic discrimination, though. You people should have found a way to get yourselves into the Constitution, and don’t you go saying “the 14th Amendment” because that’s not specific enough. He’s an odd one.

In a statement, President Joe Biden celebrated the Court’s decision, pointing out that he had supported the ICWA when he was in the Senate, he’s so old. Biden also did his own Critical Race Theory, noting that

Our Nation’s painful history looms large over today’s decision. In the not-so-distant past, Native children were stolen from the arms of the people who loved them. They were sent to boarding schools or to be raised by non-Indian families—all with the aim of erasing who they are as Native people and tribal citizens. These were acts of unspeakable cruelty that affected generations of Native children and threatened the very survival of Tribal Nations. The Indian Child Welfare Act was our Nation’s promise: never again.

So now all we have to do is worry what this pretty reasonable decision, combined with one that didn’t strike down the Voting Rights Act in its entirety last week, means for the next bunch of decisions coming from the Court, not that we’re cynical that way. Maybe it’ll decide not only to strike down Biden’s student loan forgiveness program, but also to eliminate student aid going forward because George Washington never got a student loan, now did he?

[AP / NYT / Vox / Haaland v. Brackeen / Photo: Jarek Tuszyński, Creative Commons License 3.0]

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Zooey Zephyr’s Taking The Bastards To Court

Montana state Rep. Zooey Zephyr, the state’s first transgender lawmaker, isn’t going to let Republicans in the Montana House of Representatives silence her. At least, not without a fight. Last week, you’ll recall, the GOP supermajority voted to censure Zephyr for speaking up too transly against bills banning gender-affirming care and writing trans people out of Montana law. Rather than expelling her like the jerks in Tennessee did to their meddlesome Democrats, the Montana House barred Zephyr from the floor and hearing rooms of the Capitol until the legislative session ends later this week, preventing her from participating in debate while allowing her to vote, remotely and silently, and to watch the same public stream of House proceedings as anyone else can on the internet. So generous!

Previously:

Montana Silences Zooey Zephyr

Montana Republicans Want In On That ‘Expel Democrats’ Thing That Worked So Well For Tennessee

Montana House Republicans Officially Punish Zooey Zephyr For Legislating While Trans

Monday, Zephyr, with help from the Montana ACLU, filed a lawsuit in state court asking for an emergency injunction returning her to the House floor for whatever days remain in the session, arguing that her First Amendment rights had been stomped on. The suit also names several of her constituents as plaintiffs, arguing that the House’s action effectively denied them and the rest of Zephyr’s 11,000 constituents representation.

The AP interviewed one of those plaintiffs, Anna Wong, who has a transgender child and said she’d voted for Zephyr in 2022 because she knew Zephyr would “speak out against the onslaught of bills targeting transgender youth.”

“Suicide amongst transgender youth is not imaginary,” Wong said. “It is not a game and it is not a political foil. It is real. It is heartbreaking. And it is the responsibility of my representative to speak out against bills promoting it.”

That’s exactly what Zephyr was getting at when she spoke against Senate Bill 99, which bans gender-affirming care for trans youth. Zephyr accurately said forcing trans kids to undergo puberty as the sex they don’t identify is “tantamount to torture” and said she hoped that those voting for the bill would “see the blood on your hands” the next time they pray during a House invocation. (Technically, the censure resolution only cited Zephyr’s refusal to leave the floor last week during a demonstration by her supporters. But c’mon, we know why she was silenced.)

While there are only a few days left in the session, the Legislature still hasn’t passed a budget, and Zephyr’s lawsuit seeks her immediate reinstatement so she can represent her constituents in debate on that and other last minute bills.

Emily Flower, a spokesperson for Montana Attorney General Austin Knudsen (R), whose office will manage the defense in the lawsuit, dismissed it as “performance litigation — political activism masquerading as a lawsuit,” and said that the courts have no power to intervene, because separation of powers.

As Hayes Brown notes at MSNBC, that argument may win out, unfortunately, because the US Constitution gives the US House and Senate the power to “determine the Rules of its Proceedings,” and that generally applies to state legislatures too, because 14th Amendment. Montana’s constitution does indeed allow the Legislature to expel or punish legislators for “good cause,” with a two-thirds vote of the appropriate house.

Zephyr’s lawsuit acknowledges that, but also argues that the House GOP leaders applied the rules unfairly and capriciously, so they were

acting within the “color of the law” — technically allowed but acting against the spirit of the law and beyond the scope of its reach.

Brown notes that the argument that the House is depriving Zephyr’s constituents of representation may be more compelling than the First Amendment claim, since that’s “the most immediate harm that a court could rule on given the closing window for participation.”

But hey better a long shot than no shot at all. Zephyr has, since last week’s vote, been dutifully showing up and sitting on a bench near the entrance to the House chamber to work on her laptop, although yesterday when she arrived, she found the bench had been taken already. So she worked at a table instead, standing up for her community.

Some folks showed up early this morning and sat on the public benches near the entrance to the House, so Seat 31 has moved.

I’m up and ready to work. Plus, I hear stand desks are all the rage these days.

But who were those ladies who made a point of arriving early to occupy the bench where Zephyr had been sitting? Ha ha it was a very funny trick by the wives of several prominent Republicans in the state Lege, including Jolene Regier, the mother of Speaker Matt Regier and wife of Senator Keith Regier. Wasn’t that clever of them? It’s inspiring to see how every aspect of governing in Republican-run states is now given over to trolling the libs!

That is very humorous! Their husbands and sons kept Zephyr off the floor, and then the clever lady tricksters kept her off the bench, haha! Today, supporters of Zephyr made sure to be on the benches as soon as the Capitol doors opened, to save her a spot.

But also this morning, some unidentified opponent of trans rights took a less harmless approach to trying to silence Zephyr, calling the police in an attempt to send a SWAT team to the home of Zephyr’s partner, journalist Erin Reed. Such SWATting attempts have resulted in at least two deaths — one from a police shooting, one from a heart attack — and many incidents in which police arrived at someone’s door ready to use deadly force against a nonexistent threat.

Reed tweeted that the SWATting attempt against her failed, largely because “I’ve worked closely with the police in my community anticipating this,” so there’s one more tip for the journalist toolbox: If you write about issues that make the far-Right insane, let the police know they may get false reports of a hostage situation or other nonexistent crime at your home.

Update/clarification: The SWATting attempt may very well have come from outside Montana, because as indy reporter Alejandra Caraballo said on the Twitters, the dangerous hate troll site Kiwi Farms, which targets trans people and reporters for harassment in hopes that they’ll kill themselves or die in a SWATting, added Reed to its page shortly before the attempted SWATting. They’re pure evil.

This shit can’t be tolerated. Zooey Zephyr isn’t about to let herself be silenced, and neither should any of us who care about equality and freedom. Let your electeds, especially your Republican electeds, know that trans rights matter to you, and that if they think beating up on trans people will win them votes, it’ll also get them very loud opposition, to say nothing of how they may end up in the history books on the same page as the Bull Connors and the George Wallaces.

And if you have some spare Ameros for Zooey Zephyr’s 2024 reelection campaign, keep that in mind too. Montana needs her voice — and hey, she could use some company in the Montana House too.

[AP / MSNBC / Zephyr et al v. Montana]

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YOU LIE! Mike Lee DOES NOT Want To Murder Social Security! He Just Wants To Murder It *For Your Children*!

When President Joe Biden very accurately said in his State of the Union speech Tuesday that some Republicans have called for eliminating Social Security and Medicare, all the Rs in the House chamber were shocked and horrified, and few were more hilariously performative in their how dare you, sir! theatrics than Sen. Mike Lee (R-Utah). It made for a really fun side-by-side video the next morning, contrasting Lee looking outraged during the speech with his actual comments in 2010 where he proudly announced to mostly elderly voters in Cache Valley, Utah, that he wanted to phase out Social Security and Medicare because America simply can’t afford all the socialism. Roll 212, as they say (no one remembers that Daily Show bit from a decade ago, Dok):

Well Mike Lee was not at all pleased that people keep pointing out that he did indeed tell Utah voters during his first run for Senate in 2010,

“I’m here right now to tell you one thing you’ve probably never heard from a politician. It’ll be my objective to phase out Social Security, to pull it up from the roots and get rid of it. People who advise me politically always tell me that’s dangerous and I tell them, ‘In that case it’s not worth my running.’ That’s why I’m doing this, to get rid of that. Medicare and Medicaid are of the same sort, they need to be pulled up.”


Sure sounds like a pledge to phase out Social Security, Medicare, and Medicaid, to pull them up by the roots and get rid of both programs. Indeed, that goal was why Lee wanted to be in the Senate. It wouldn’t be worth running if he couldn’t get rid of all three. As Newsweek pointed out Wednesday, Lee had framed his vow to extirpate the programs because the Constitution itself (and he waved a copy around) doesn’t say anywhere that government has “the power to redistribute my wealth, yet that’s what entitlement programs are — they’re a wealth redistribution.”

Biden made a point of quoting Lee Wednesday when he spoke to union workers in Wisconsin. Clearly enjoying himself, Biden said, “There was a senator named Mike Lee who was yelling, you know, liar, liar, house on fire kind of stuff last night.” He then went on to quote Lee’s 2010 comments, adding, “Sounds pretty clear to me. How about you? But they sure didn’t like me calling them on it.”

The White House also tweeted out the Newsweek article, noting again the line about Lee’s 2010 pledge to “phase out Social Security, to pull it up by the roots, and get rid of it.”

But wait! Lee tweeted an angry statement later Wednesday to point out that his critics were leaving out a vital part of his statement! He was the victim of selective editing, is all, he said, because his real point in 2010 was that even though he wanted to drive a stake through Social Security and Medicare, he also said America must “honor the commitments made to those who have paid into the system for decades” — in other words, as with George W. Bush’s failed plan to privatize Social Security, those already in the program wouldn’t be thrown off. He’d simply eliminate the programs for the young folks coming up. See? Big difference!

“In repeatedly quoting my 2010 remarks today, President Biden conveniently left out that critical detail — that even when I voiced that position, I insisted that we honor the reliance interests of those who have paid into the system.”

If you want to nitpick — and it would be irresponsible not to — nothing of the sort could be done for current Medicaid beneficiaries, because how exactly would you grandfather in those useless eaters and their useless children in the Children’s Health Insurance Program (CHIP) for an income-based program, exactly.

Lee also griped that in the dozen years he’s been in the Senate, he hasn’t actually tried to abolish Social Security, Medicare, and Medicaid, so there — he broke that campaign promise and he broke it good!

Lee followed up with a tweet replying to the White House, with video evidence that he had definitely told the senior voters in 2010 that he’d only wipe out Social Security and Medicare for their children and grandchildren, not them. And if “I will impoverish your children and grandchildren when they reach retirement age, but not you” isn’t a GOP motto, it sure could be.

Decide for yourself just how exculpatory the full context is, ‘kay?

“We have to hold harmless those who are current beneficiaries. Those who have retired and are currently receiving those benefits, their benefits have to be left untouched, unchanged, un … fazed.”

We Think maybe Lee meant un-phased out there, but maybe the benefits would just hear the news without reacting. He went on to add that “The next layer beneath them, those who will retire within the next few years, probably also have to be held harmless,” so that’s very reassuring.

Lee didn’t specify what age cohort would be spared the axe, but it’s very clear, in the context that Lee provides, that even though he wouldn’t cut Nana’s Medicare, Nana’s granddaughter is screwed, even if she’s been paying into the system for a decade or two.

Lee didn’t go into any details about how, once all the youngs are freed from the burden of paycheck withholding, Social Security and Medicare would be sustained for existing beneficiaries until they all died and the programs wound down.

But no matter: ALL you meanies need to be nice to Mike Lee, who never said he’d completely eliminate Social Security and Medicare. All he wanted was to screw everyone under, say, 50 or 55, and thank goodness he broke that particular campaign promise, so he is the hero, OK?

Thank you for the clarification, sir!

Of course, this is all touche and en garde about one little campaign appearance a decade ago, when actually “get rid of the social safety net” is one of the very few policy positions Republicans bother holding anymore since they’ve all become idea-free nihilists, and it’s one that goes back decades and they’re still doing it as of this term.

[Newsweek / Deseret News / YouTube]

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