Tribe warns US government against moving ahead with mine

By ANITA SNOW

yesterday

REIFICATION NOT REFLECTION

A sign stands for the Resolution Copper Mining land-swap project on July 22, 2015, in Superior, Ariz. Native American tribal members fighting plans for an enormous copper mine on land they consider sacred say they are increasingly worried U.S. officials will move forward on the project even as they await a federal appellate court ruling in the case.

 (AP Photo/Ross D. Franklin, File)


PHOENIX (AP) — Native American tribal members fighting plans for an enormous copper mine on land they consider sacred say they are increasingly worried U.S. officials will publish an environmental review paving the way for the project even as they await a federal appeals court ruling in the case.

A U.S. government attorney said during last month’s hearing of a full panel of the 9th Circuit Court of Appeals that the final environmental impact study for construction of the mine at Oak Flat, Arizona, could be published this spring.

San Carlos Apache Tribe Chairman Terry Rambler said during a visit last week that U.S. Forest Service officials confirmed plans to push forward on publication of the environmental analysis. That step would kick off a 60-day period culminating in a land swap allowing the project to go forward.

“Obliterating Oak Flat for a copper mine will be a grave human rights violation against Indigenous people and an environmental catastrophe,” Rambler said in a written statement this week. “The Biden Administration’s commitment to Indian Country will be seriously eroded if it approves this mine.”

Apache Stronghold, a group composed of San Carlos Apache members and others, wants to halt the land swap while the case plays out in court. The panel of 11 judges on the appeals court is expected to issue a decision in the next few months.

Apache Stronghold sued the U.S. government under the Religious Freedom Restoration Act to protect the land known as Chi’chil Bildagoteel, an area of ancient oaks and traditional plants the San Carlos Apaches consider important for their ceremonies at Oak Flat in the Tonto National Forest about 70 miles (110 kilometers) east of Phoenix.

The Forest Service is now revising the environmental analysis, “which is expected to be completed in the coming months,” national press officer Wade Muehlhof said Friday in a written response to emailed queries about the agency’s plans.

He wrote that the Forest Service has “committed to providing at least 60 days’ notice before any future environmental analysis and Draft Record Of Decision (DROD) for the Land Exchange and Project is issued.”

Muehlhof also said consultation with tribal members is ongoing, including a planned April 25 meeting.

Representatives of the Resolution Copper mining company said they were unaware of the meeting or any plans by the agency.

U.S. Rep. Raúl M. Grijalva, a Democrat who represents southern Arizona, has introduced legislation aimed at halting the project. He urged Agriculture Secretary Tom Vilsack this week to continue withholding publication of the environmental review.

“If allowed to proceed, Resolution Copper would desecrate Oak Flat’s tribal cultural and religious heritage sites, deplete already scarce water resources in Arizona, adversely impact imperiled species, and create a crater up to 1,115 feet deep and roughly 1.8 miles across,” Grijalva wrote. “The destruction this mine would cause far outweighs its benefits.”

The swap was a provision included in a must-pass defense bill to give Resolution Copper3.75 square miles (9.71 square kilometers) of national forest land for eight other parcels the company owns elsewhere in Arizona.

Publication of the environmental analysis will start the clock on the 60-day period for the Forest Service to transfer Oak Flat to Resolution Copper.

An earlier environmental survey was pulled back while the U.S. Department of Agriculture, which oversees the Forest Service, consulted for months with Native American tribes and others about their concerns.

The mining company says it has been addressing concerns about the project. It notes there is broad local support for the mine, which could create thousands of jobs, add up to $1 billion annually to Arizona’s economy and potentially supply enough copper to meet up to one-quarter of U.S. demand.

Resolution Copper is a joint venture of global mining firms Rio Tinto, which has headquarters in Australia and the U.K., and BHP, which is based in Australia.

A smaller 9th Circuit panel previously ruled 2-1 that the federal government could give the Oak Flat land to Resolution Copper for the project. The court later agreed to let the larger panel hear the case.

Tribal councilman Wendsler Nosie Sr. speaks with Apache activists during a rally to save Oak Flat, land near Superior, Ariz., sacred to Western Apache tribes, in front of the U.S. Capitol on July 22, 2015, in Washington.(AP Photo/Molly Riley, File)

- Apache Stronghold member Raetana Manny, 4, shows a sign to save Oak Flat, a site east of Phoenix that the group considers sacred, as she joined a gathering at Self Help Graphics & Art in the Los Angeles neighborhood of Boyle Heights on Monday, March 20, 2023. Native American tribal members fighting plans for an enormous copper mine on land they consider sacred say they are increasingly worried U.S. officials will move forward on the project even as they await a federal appellate court ruling in the case.

 (AP Photo/Damian Dovarganes, File)

Judge cancels Montana gas plant permit over climate impacts

By MATTHEW BROWN and AMY BETH HANSON

yesterday

The Northwestern Energy's Laurel Generating Station, a natural gas-fired power plant, seen under construction near Laurel, Mont., on April 4, 2016. A Montana judge has cancelled the air quality permit for a natural gas power plant that's under construction along the Yellowstone River. State District Judge Michael Moses cited concerns over climate change in his Thursday, April 6, 2023, order. The $250 million plant in Laurel proposed by NorthWestern Energy would burn natural gas to produce up to 175 megawatts of electricity. State officials say they have no regulatory authority over greenhouse gas emissions.

 (Larry Mayer/The Billings Gazette via AP)

BILLINGS, Mont. (AP) — A judge canceled the air quality permit for a natural gas power plant that’s under construction along the Yellowstone River in Montana citing worries over climate change.

State District Judge Michael Moses ruled Thursday that Montana officials failed to adequately consider the 23 million tons of planet-warming greenhouse gases that the project would emit over several decades.

Many utilities across the U.S. have replaced coal power with less polluting natural gas plants in recent years. But the industry remains under pressure to abandon fossil fuels altogether as climate change worsens.

The $250 million plant is being built by Sioux Falls, South Dakota-based NorthWestern Energy and would operate for at least 30 years. The company will appeal the order, a spokesperson said in a statement Friday, saying that the ruling could jeopardize reliable power service.

Montana officials had argued they had no authority to regulate greenhouse gas emissions. They also said that because climate change is a global phenomenon, state law prevented them from looking at its impacts.

But Moses said officials from the Montana Department of Environmental Quality had misinterpreted the law. He ordered them to conduct further environmental review and said they must gauge the climate change impacts within Montana in relation to the project. Major flooding on the Yellowstone last year wiped out bridges and triggered widespread evacuations following extreme rains, which scientists say are becoming more frequent as the climate changes.

“The emissions and impacts of the (gas plant) are potentially significant,” Moses wrote. “Defendants do not dispute this.”

The judge also faulted officials for not considering how lights from the project could impact surrounding property owners. It’s on the outskirts of the town of Laurel across the river from a residential neighborhood.

The plant would produce up to 175 megawatts of electricity. Its air permit was challenged in a 2021 lawsuit from the Montana Environmental Information Center and Sierra Club.

The Department of Environmental Quality was reviewing Moses’ order and agency officials had no immediate comment, spokesperson Moira Davin said.

A NorthWestern Energy representative did not say if the ruling would halt construction. The company says the plant would ensure enough electricity is available at times of high demand, such as on hot days or cold nights.

“Our air permit was reviewed and approved by the DEQ using standards that have been in effect for many years,” Vice President John Hines said in a NorthWestern’s statement. “We will work with the DEQ to determine the path forward.”

The ruling comes as the Montana Legislature weighs bills that would make it more difficult for organizations and individuals to sue state agencies over environmental decisions.

The state Senate passed a bill requiring anyone who wants to challenge an agency environmental review to have commented during the review process. They’d also have to pay for some of the agency’s court costs. The bill would also bar nonprofit organizations from using tax deductible donations to pay for lawsuits against state agencies.

__

Hanson reported from Helena, Mont.

Wisconsin DNR releases 3,500 public comments on wolf plan

By TODD RICHMOND

yesterday

 This photo provided by the U.S. Fish and Wildlife shows a gray wolf, April 18, 2008. Wisconsin wildlife officials on Friday, April 7, 2023, released thousands of public comments on a new wolf management plan, that run the gamut from restoring a statewide population limit to banning hunting the animals. (Gary Kramer/U.S. Fish and Wildlife Service via AP, File)

MADISON, Wis. (AP) — Wisconsin wildlife officials on Friday released thousands of public comments on a new wolf management plan, some calling for the restoration of a statewide population limit and others urging a total hunting ban.

Department of Natural Resources in November released a draft of its first new wolf management plan in almost 25 years. It would eliminate the existing 350-animal population goal and recommends instead that the DNR work with local advisory committees on whether to reduce local wolf populations, keep them stable, or allow them to grow.

The window for submitting comments on the draft plan ended Feb. 28. The DNR posted about 3,500 redacted comments on its website Friday afternoon.

The comments broadly reflected all sides of the long-running debate over how to best handle the growing number of wolves in Wisconsin. DNR estimates released in September put the statewide population at about 1,000 animals.

Northern Wisconsin farmers have long complained about wolves preying on livestock. Hunters have pointed to the 350-animal number as justification for setting generous quotas during the state’s fall wolf season. Animal advocates counter that the population still isn’t strong enough to support hunting.

Several government entities in rural Wisconsin, including the Douglas, Marathon and Jackson county boards, submitted boilerplate resolutions to the DNR calling for the agency to restore the 350-animal goal, arguing that nothing has changed to warrant its elimination.

Hunting groups, including the Wisconsin Bear Hunters Association and Safari Club International, also called for the agency to restore the 350-wolf goal.

“Without setting a definitive guideline on which to base discretionary management decisions, any effort to stabilize or even reduce the wolf population will be questioned and likely challenged,” Safari Club International President Sven Lindquist said in a letter to the DNR. “Establishing a population objective would provide DNR with a specific goal to point to as it makes decisions like setting annual harvest quotas and methods of harvest.”

Republican legislators introduced a bill that would mandate the DNR establish a new population goal in the final version of the plan but doesn’t say at what level. The proposal hasn’t received a hearing yet.

Conservation groups, meanwhile, applauded the lack of a numeric goal in the draft plan.

“Removing an arbitrary wolf population goal is important to make sure the numbers of wolves are adaptable,” Elizabeth Ward, director of the Sierra Club’s Wisconsin chapter, said in a letter. “As written in the plan, the goal should be for the state to have a self-sustaining, self-regulating, and genetically diverse wolf population that maintains connectivity with wolf populations in neighboring states and fulfills their ecological roles.”

The Chippewa tribes, which regard the wolf as a sacred brother, submitted comments saying they cannot support hunting wolves and imploring the DNR to include them in discussions on plan revisions.

It’s unclear when DNR officials would submit a final draft to the agency’s policy board. Agency officials said in a statement only that they’re reviewing the comments and will use them to consider revisions. They did not offer a timeline.

DNR spokesperson Katie Grant has not responded to an email from The Associated Press.

Wisconsin law mandates a wolf season but last year a federal judge restored endangered species protections for gray wolves across most of the country, including Wisconsin. The move prohibits hunting the animals. If wolves were ever to lose those protections, the states would be responsible for managing the creatures and Wisconsin hunts would resume.

In Africa’s Okavango, oil drilling disrupts locals, nature

By WANJOHI KABUKURU

TODAY

1 of 2
 Elephants in the Chobe National Park in Botswana. In Africa's Okavango delta, drilling for oil exploration, as well as human-caused climate change, has altered the landscape that so many people and wildlife species rely on. Nearby Chobe National Park has seen a decline in river quality partly due to its burgeoning tourism industry, a study found. 

(AP Photo/Charmaine Noronha, File)

MOMBASA, Kenya (AP) — Gobonamang Kgetho has a deep affection for Africa’s largest inland delta, the Okavango. It is his home.

The water and wildlife-rich land is fed by rivers in the Angolan highlands that flow into northern Botswana before draining into Namibia’s Kalahari Desert sands. Several Indigenous and local communities and a vast array of species including African elephants, black rhinos and cheetahs live among the vibrant marshlands. Much of the surrounding region is also teeming with wildlife.

Fisher Kgetho hails from Botswana’s Wayei community and relies on his pole and dug-out canoe to skirt around the marshes looking for fish. But things have changed in recent years — in the delta and across the country.

“The fish sizes have shrunk, and stocks are declining,” Kgetho, whose life and livelihood depends on the health of the ecosystem, told The Associated Press. “The rivers draining into the delta have less volumes of water.”

Drilling for oil exploration, as well as human-caused climate change leading to more erratic rainfall patterns and water abstraction and diversion for development and commercial agriculture, has altered the landscape that Kgetho, and so many other people and wildlife species, rely on.

The delta’s defenders are now hoping to block at least one of those threats — oil exploration.

A planned hearing by Namibia’s environment ministry will consider revoking the drilling license of Canadian oil and gas firm Reconnaissance Energy. Local communities and environmental groups claimed that land was bulldozed and cut through, damaging lands and polluting water sources, without the permission of local communities.

Kgetho worries that rivers in his region are drying up because of “overuse by the extractive industries, including oil exploration activities upstream.”

In a written statement, ReconAfrica, the firm’s African arm, said it safeguards water resources through “regular monitoring and reporting on hydrological data to the appropriate local, regional and national water authorities” and is “applying rigorous safety and environmental protection standards.”

The statement went on to say that it has held over 700 community consultations in Namibia and will continue to engage with communities in the country and in Botswana.

The company has been drilling in the area since 2021 but is yet to find a productive well. The hearing was originally scheduled for Monday but has been postponed until further notice. The drilling license is currently set to last until 2025, with ReconAfrica previously having been granted a three-year extension.

Locals have persisted with legal avenues but have had little luck. In a separate case, Namibia’s high court postponed a decision on whether local communities should pay up for filing a case opposing the company’s actions.

The court previously threw out the urgent appeal made by local people to stop the Canadian firm’s drilling activities. It’s now deciding whether the government’s legal feels should be covered by the plaintiffs or waived. A new date for the decision is set for May.

The Namibian energy minister, Tom Alweendo, has maintained the country’s right to explore for oil, saying that European countries and the U.S. do it too. Alweendo supports the African Union’s goal of using both renewable and non-renewable energy to meet growing demand.

There are similar fears of deterioration across Botswana and the wider region. Much of the country’s diverse ecosystem has been under threat from various development plans. Nearby Chobe National Park, for example, has seen a decline in river quality partly due to its burgeoning tourism industry, a study found.

In the Cuvette-Centrale basin in Congo, a dense and ecologically thriving forest that’s home to the largest population of lowland gorillas, sections of the peatlands — the continent’s largest — went up for oil and gas auction last year.

The Congolese government said the auctioning process “is in line” with development plans and government programs and it will stick to stringent international standards.

Environmentalists are not convinced.

Wes Sechrest, chief scientist of environmental organization Rewild, said that protecting areas “that have robust and healthy wildlife populations” like the Okavango Delta, “are a big part of the solution to the interconnected climate and biodiversity crises we’re facing.”

The peatlands also serve as a carbon sink, storing large amounts of the gas that would otherwise heat up the atmosphere.

Sechrest added that “local communities are going to bear the heaviest costs of oil exploration” and “deserve to be properly consulted about any extractive industry projects, including the many likely environmental damages, and decide if those projects are acceptable to them.”

Steve Boyes, who led the National Geographic Okavango Wilderness Project that mapped the delta, said researchers now have even more data to support the need to maintain the wetlands.

Aided by Kgetho and other locals, whose “traditional wisdom and knowledge” led them through the bogs, Boyes and a team of 57 other scientists were able to detail around 1,600 square kilometers (1,000 square miles) of peatlands.

“These large-scale systems that have the ability to sequester tons of carbon are our long-term resilience plan,” said Boyes.

For Kgetho, whose journey with the scientists was made into a documentary released earlier this year, there are more immediate reasons to defend the Okavango.

“We must protect the delta,” Kgetho said. “It is our livelihood.”

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Associated Press climate and environmental coverage receives support from several private foundations. See more about AP’s climate initiative here. The AP is solely responsible for all content.

ITS ABOUT BANNING CONTRACEPTION

Access to abortion pill in limbo after competing rulings

ANTI ABORTION IS ANTI CONTRACEPTION 

By PAUL J. WEBER, MATTHEW PERRONE and LINDSAY WHITEHURST

TODAY

Boxes of the drug mifepristone sit on a shelf at the West Alabama Women's Center in Tuscaloosa, Ala., March 16, 2022. A federal judge in Texas on Friday, April 7, 2023, ordered a hold on the U.S. approval of the abortion medication mifepristone, throwing into question access to the nation’s most common method of abortion in a ruling that waved aside decades of scientific approval. Federal lawyers representing the FDA are expected to swiftly appeal the ruling. (AP Photo/Allen G. Breed, File)

AUSTIN, Texas (AP) — Access to the most commonly used method of abortion in the U.S. plunged into uncertainty Friday following conflicting court rulings over the legality of the abortion medication mifepristone that has been widely available for more than 20 years.

For now, the drug the Food and Drug Administration approved in 2000 appeared to remain at least immediately available in the wake of two separate rulings that were issued in quick succession by federal judges in Texas and Washington.

U.S. District Judge Matthew Kacsmaryk, a Trump appointee, ordered a hold on federal approval of mifepristone in a decision that overruled decades of scientific approval. But that decision came at nearly the same time that U.S. District Judge Thomas O. Rice, an Obama appointee, essentially ordered the opposite and directed U.S. authorities not to make any changes that would restrict access to the drug in at least 17 states where Democrats sued in an effort to protect availability.

The extraordinary timing of the competing orders revealed the high stakes surrounding the drug nearly a year after the U.S. Supreme Court overturned Roe v. Wade and curtailed access to abortion across the country. President Joe Biden said his administration would fight the Texas ruling.

The whiplash of the conflicting decisions is likely to put the issue on an accelerated path to the Supreme Court.

“FDA is under one order that says you can do nothing and another that says in seven days I’m going to require you to vacate the approval of mifepristone,” said Glenn Cohen of Harvard Law School.

Abortion providers slammed the Texas ruling, including Whole Woman’s Health, which operates six clinics in five states and said it would continue to dispense mifepristone in person and by mail over the next week as they review the rulings.

The abortion drug has been widely used in the U.S. since securing FDA approval and there is essentially no precedent for a lone judge overruling the medical decisions of the Food and Drug Administration. Mifepristone is one of two drugs used for medication abortion in the United States, along with misoprostol, which is also used to treat other medical conditions.

Kacsmaryk signed an injunction directing the FDA to stay mifepristone’s approval while a lawsuit challenging the safety and approval of the drug continues. His 67-page order gave the government seven days to appeal.

“The Court in this case has substituted its judgment for FDA, the expert agency that approves drugs,” Biden said. “If this ruling were to stand, then there will be virtually no prescription, approved by the FDA, that would be safe from these kinds of political, ideological attacks.”

Clinics and doctors that prescribe the two-drug combination have said that if mifepristone were pulled from the market, they would switch to using only the second drug, misoprostol. That single-drug approach has a slightly lower rate of effectiveness in ending pregnancies, but it is widely used in countries where mifepristone is illegal or unavailable.

The lawsuit in the Texas case was filed by the Alliance Defending Freedom, which was also involved in the Mississippi case that led to Roe v. Wade being overturned. At the core of the lawsuit is the allegation that the FDA’s initial approval of mifepristone was flawed because it did not adequately review its safety risks.

Courts have long deferred to the FDA on issues of drug safety and effectiveness. But the agency’s authority faces new challenges in a post-Roe legal environment in which abortions are banned or unavailable in 14 states, while 16 states have laws specifically targeting abortion medications.

Since the Texas lawsuit was filed in November, legal experts have warned of questionable arguments and factual inaccuracies in the Christian group’s filing. Kacsmaryk essentially agreed with the plaintiffs on all of their major points, including that the FDA didn’t adequately review mifepristone’s safety.

“The Court does not second-guess FDA’s decision-making lightly.” Kacsmaryk wrote. “But here, FDA acquiesced on its legitimate safety concerns — in violation of its statutory duty — based on plainly unsound reasoning and studies that did not support its conclusions.”

Mifepristone has been used by millions of women over the past 23 years, and complications from mifepristone occur at a lower rate than that seen with wisdom teeth removal, colonoscopies and other routine medical procedures, medical groups have recently noted.

Elsewhere, Kacsmaryk sided with plaintiffs in stating that the FDA overstepped its authority in approving mifepristone, in part, by using a specialized review process reserved for drugs to treat “serious or life-threatening illnesses.” The judge brushed aside FDA arguments that its own regulations make clear that pregnancy is a medical condition that can sometimes be serious and life-threatening, instead calling it a “natural process essential to perpetuating human life.”

His order also agreed with plaintiffs in invoking a controversial 19th century law that anti-abortion groups are now trying to revive to block sending abortion medications through the mail. Originally passed in 1873 and named for an “anti-vice crusader,” the Comstock Act was used to prohibit the mailing of contraceptives, “lewd” writings and “instruments” that could be used in an abortion. The law was seldom invoked in the 50 years after Roe established a federal right to abortion.

Kacsmaryk, though, agreed with plaintiffs that the law — as literally interpreted — prohibits mailing mifepristone.

His order, if upheld, would also dismantle a number of recent FDA actions intended to ease access to the drug.

In late 2021 the FDA — under the Biden administration — dropped a requirement that women pick up the drug in person, opening the door to delivery by mail-order pharmacies. In January the agency dropped another requirement that prevented most brick-and-mortar pharmacies from dispensing the pill.

Anti-abortion groups, which are newly encouraged about their ability to further restrict abortion and prevail in court since last’s year’s reversal of Roe v. Wade, embraced the Texas ruling.

“The court’s decision today is a major step forward for women and girls whose health and safety have been jeopardized for decades by the FDA’s rushed, flawed and politicized approval of these dangerous drugs,” said March for Life President Jeanne Mancini.

Legal experts warned that the ruling could upend decades of precedent, setting the stage for political groups to overturn other FDA approvals of controversial drugs and vaccines.

“This has never happened before in history — it’s a huge deal,” said Greer Donley, a professor specializing in reproductive health care at the University of Pittsburgh Law School. “You have a federal judge who has zero scientific background second guessing every scientific decision that the FDA made.”

Still, because of the contradictory nature of the rulings, Donley and other experts said there would be little immediate impact.

“In the short term, nothing’s going to change,” Donley said. “This is the time to be preparing for the fact that in a week, potentially, mifepristone becomes an unapproved drug in this country.”

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Perrone and Whitehurst reported from Washington. Associated Press reporter Gene Johnson in Seattle and Claire Rush in Portland, Oregon, contributed.

Trump-appointed judge strikes down FDA approval of abortion pill mifepristone

Matthew Chapman
April 07, 2023

(Shutterstock.com)

A far-right judge in Texas has issued a long-awaited ruling, striking down the Food and Drug Administration's approval of mifepristone for abortions.

Judge Matthew Kacsmaryk, an appointee of President Donald Trump, has stayed his ruling for seven days to give the federal government time to appeal the decision to the Fifth Circuit.

The case was brought by right-wing groups arguing that the approval process for the drug did not fully evaluate the safety and effectiveness of the drug. Among other things, Kacsmaryk ruled that the FDA failed to evaluate the "psychological trauma" that medication abortion could cause to women.

Doctors have broadly disputed any claims that the drug is not safe or effective.

The ruling, if allowed to go into effect, would suspend the ability of mifepristone to be prescribed for abortions, even in states where abortion and specifically medication abortion are legal. Women seeking abortions through this method would now have to use surgical abortion instead, or else rely solely on misoprostol, another drug generally used in tandem with the drug.

The Justice Department broadly expected the ruling, and will almost certainly move forward with appeal.

Legal reporter: Trump judge's claim about abortion drug is 'dumbest' thing I've ever seen

Matthew Chapman
April 07, 2023

Matthew Kacsmaryk

On Friday, a Trump-appointed federal judge in Texas voided the Food and Drug Administration's more than two-decades-old approval for mifepristone as an abortion medication — ruling in favor of a coalition of anti-abortion groups that argued the FDA did not consider things like the psychological anguish of women who have abortions when issuing the approval.

This widely-anticipated ruling, from U.S. District Judge Matthew Kacsmaryk in Amarillo, outraged legal reporter Elie Mystal, who called the decision "risible" and "dumb."

"As expected, the Republican judge hand picked by forced-birthers has issued a nationwide ban on the abortion pill. Stayed for a week. FDA will certainly appeal," wrote Mystal.

In particular, Mystal focused on the argument made by these groups, who would normally not have any standing to bring a suit, why they can represent the legal interests of women. "The argument, made here, that third party plaintiffs have standing because 'women who have had abortions' might experience too much 'shame… or regret' to bring suit against the government… is one of the dumbest and risible things I’ve read in a minute."

There is no medical evidence that mifepristone as it is used for abortion is unsafe or causes undue anguish to women; doctors have found the procedure of medication abortion is safer than Viagra and penicillin.

This comes at the same time as another federal judge in Washington state issued a ruling that would actually order the FDA to ease access to mifepristone in several states — setting up a conflict in federal courts and dramatically increasing the odds the Supreme Court may have to step in and resolve the issue. The Texas ruling is certain to be appealed by the Justice Department in the next few days.

Federal judges issue conflicting rulings in a pill used for medication abortion

Shefali Luthra, The 19th
April 07, 2023
Originally published by The 19th

Federal judges have issued contradicting orders about whether mifepristone — one of two drugs used to induce a medication abortion — can be legally distributed.

A judge in Texas ruled Friday in a much-watched case, saying that the federal government’s approval of the drug must be blocked; his decision, he wrote, takes effect in one week, giving the Department of Justice time to appeal the decision.

But another federal judge, in Washington state, found the opposite in a separate case concerning the drug’s approval. That judge, who also ruled Friday, held that a nationwide injunction blocking mifepristone’s distribution would be “inappropriate.”

The conflicting federal rulings increase the likelihood that mifepristone’s legality will ultimately be decided by the Supreme Court. The stakes for people seeking abortions are significant.

If the Texas-based judge’s decision takes effect, people seeking a pill-based option would be forced to use a less effective, at times more painful medical regimen for medication abortions, which is the most common method to terminate a pregnancy. Some clinics told The 19th they will stop providing medication abortions altogether following the ruling. The decision is expected to be quickly appealed.

Medication abortions typically involve two medications: mifepristone, which is administered to stop a pregnancy from progressing, and then misoprostol, which is taken 24 to 48 hours later to empty the uterus. The protocol is only recommended for the first trimester of pregnancy, and has somewhere between a 95 and 99 percent effectiveness rate. The risk of complications is less than 1 percent.

With mifepristone potentially unavailable soon, some abortion providers have been preparing to offer medication abortions using only misoprostol. That regimen — which is used in most other countries, where mifepristone is often unavailable — is safe and effective, but research shows it has a higher failure rate than the two-drug option. (A recent study found misoprostol-only medications had an 88 percent effectiveness rate.) Patients who take only misoprostol also can experience heightened side effects, including greater pain and vomiting. Other providers have said they will distribute mifepristone for as long as they have the drug in stock.

Adjusting to the one-drug regimen would not be easy. Clinicians across the country told The 19th it would take time to adjust to a misoprostol-only protocol. Many clinicians have only ever provided mifepristone-misoprostol regimens up until now, and experts told The 19th that switching to misoprostol only could mean reduced capacity at clinics.

If mifepristone’s distribution is blocked, some providers will now only provide surgical abortions, which are also safe and effective. But surgical abortions can only be offered in clinics, and take more time and resources for abortion clinics to provide.

For patients traveling across state lines to get an abortion, a misoprostol-only abortion presents particular challenges. The higher failure rate means greater odds of needing follow-up care when people have already returned to their home state.

Mifepristone has been on the market since 2000, when it was first approved by the Food & Drug Administration to help induce abortions. Since Roe v. Wade was overturned last summer, allowing states to ban abortion, the mifepristone-misoprostol combination has become even more significant.

Health care providers in states that allow abortion, especially those that have seen a surge in out-of-state patients as states restrict or ban the procedure, have leveraged medication abortion as a way to serve more patients quickly. Medication abortions are cheaper to administer, and patients can safely take the pills from home. Some people who have been unable to leave their home states have ordered mifepristone and misoprostol online to perform medication abortions at home, a practice that is potentially legally risky but is medically safe. (The World Health Organization recommends people taking medications have access to professional medical support if needed.)

The ruling in Texas, issued by Judge Matthew J. Kacsmaryk from the Northern District of Texas, comes in an unusual case. Filed by an anti-abortion group, the lawsuit argues that the government should revoke the FDA’s approval of mifepristone, claiming that the drug was improperly approved. Legal experts have robustly criticized the substance of those arguments.

There is no precedent for a district judge effectively undoing the FDA’s approval of a drug, and it’s not clear if this ruling will spur similar lawsuits. Some reproductive rights advocates worry that Kaczmaryk’s ruling could open the door for challenges to the FDA’s approval of intrauterine devices or emergency contraception pills — methods of birth control that some influential anti-abortion groups also oppose.

Recent polling found that 62 percent of voters disapprove of efforts to block access to medication abortion, including the majority of independents and of women voters.

THEY'RE BACK

Abortion pill plan clears Kansas Legislature; veto expected

By JOHN HANNA

yesterday

Kansas state Reps. Susan Concannon, left, R-Beloit, and Fred Patton, right, R-Topeka, confer during a session of the House, Thursday, April 6, 2023, at the Statehouse in Topeka, Kan. Both Concannon and Patton supported a bill approved by lawmakers that would require abortion providers to tell patients that medication abortions can be "reversed" once they are started, something experts dispute. 

(AP Photo/John Hanna)

TOPEKA, Kan. (AP) — Abortion opponents pushed a bill through the Kansas Legislature early Friday to require providers to tell patients that a medication abortion can be “reversed” once it’s started — a measure that could face a state court challenge if its supporters can overcome the governor’s expected veto.

Republican lawmakers pursued the bill even though experts dispute abortion opponents’ claims about medication abortions. Democrats argue the measure defies a decisive statewide vote in August affirming abortion rights. Democratic Gov. Laura Kelly vetoed a similar measure in 2019.

Kansas has been an outlier on abortion among states with GOP-controlled legislatures because its legal and political climate won’t allow a ban on abortion, despite the U.S. Supreme Court’s ruling in June 2022 that states can outlaw abortion. The Kansas Supreme Court ruled in 2019 that access to abortion is a matter of bodily autonomy and a “fundamental” right under the state constitution, and last year’s vote was to reject stripping out that protection.

“The people of Kansas have spoken,” state Rep. Christina Haswood, a Democrat from the liberal northeastern Kansas community of Lawrence, home to the main University of Kansas campus, said during Friday’s brief debate. “They do not want us touching anything on abortion.”

HEALTH

Republican lawmakers and anti-abortion groups contend the vote last year doesn’t preclude “reasonable” restrictions. They contend that the “abortion pill reversal” measure only ensures that patients have information.

“They need to be knowledgeable about what can happen,” Republican state Rep. Susan Humphries, of Wichita, during a debate on the issue last week.

The votes for the final version of the bill were 80-38 in the House and 26-11 in the Senate. In both chambers, abortion opponents were short of the two-thirds majorities needed to override a veto but enough absent lawmakers might have voted “yes” for an override to be possible.

But even then, the measure still could be challenged in court by providers who believe it would force them to give patients inaccurate information. Lawsuits have prevented Kansas from enforcing a 2015 ban on a common second-trimester abortion procedure and a 2011 law imposing extra health and safety rules for abortion providers.

Meanwhile, legislators this week also approved a bill dealing with live deliveries during certain types of abortion procedures. Doctors could face criminal charges or lawsuits for monetary damages if they are accused of not providing reasonable care to an infant delivered alive during certain types of abortion procedures.

And lawmakers have included $2 million in state tax dollars in the next state budget for centers that provide free prenatal and post-birth counseling and other services as they seek to discourage women from having abortions. Abortion opponents also are pursuing creation of an income tax credit for donors to those centers, allowing up to $10 million total a year.

“This is not about abortion and it’s not about a ban. We heard the vote. We get that,” House health committee Chair Brenda Landwehr, a Wichita Republican, told colleagues during a debate on the issue last week. “We also heard you say we don’t care and now we’re trying to step up to the plate.”

The American College of Obstetrics and Gynecology says there is no scientific evidence that the “reversal” method, involving using the hormone progesterone in place of the second abortion medication, is safe or effective.

Two physicians started using the “reversal” method more than 15 years ago, and abortion opponents note that progesterone is often used to try to prevent women from miscarrying a pregnancy. One of the doctors who participated in a 2018 study said doctors followed more than 750 women who’d sought to reverse medication abortions and said a sizeable majority were successful.

Critics have said the study was flawed and couldn’t show whether the women would have carried their pregnancies to term without progesterone.

“Kansas deserves providers who are free to stick to fact-based health care and not forced to spread scientific myths,” Democratic state Rep. Melissa Oropeza, a Kansas City nurse practioner, said during Friday’s debate.

But abortion opponents said it’s not improper to promote what is essentially an off-label use for progesterone.

“Heck, we use a lot of things off label,” state Rep. John Eplee, a northeastern Kansas doctor, said during last week’s debate. “Viagra — sildenafil — was used as a medication for pulmonary hypertension for five years until they found all the male patients woke up with complications, quote-unquote, from it.”

___

Follow John Hanna on Twitter: https://twitter.com/apjdhanna

Mexican artisans create ‘Judas’ figures for others to burn

By MARÍA TERESA HERNÁNDEZ

Today

Artist Gabriel Gutierrez paints a version of Judas that he is crafting for the "Burning of Judas," celebration, at the Santa Maria La Ribera Cultural Center, in Mexico City, Wednesday, April 5, 2023. The annual celebration takes place in Mexico every Holy Saturday, when people across the country gather in public plazas to light fireworks that will destroy the colorful figures representing symbolic embodiments of evil. 

(AP Photo/Marco Ugarte)


MEXICO CITY (AP) — After two months of hard work assembling and painting devil-like cardboard figures popularly known as “Judas,” Mexican artisan Marcela Villarreal is eager to watch her creations burn.

Villarreal and dozens of fellow crafters created the figures ahead of the annual “Burning of Judas,” a celebration that takes place in Mexico every Holy Saturday, when people across the country gather in public plazas to light fireworks that will destroy these colorful figures made as symbolic embodiments of evil.

This festivity — filled with satirical humor — is not associated with the Holy Week celebrations led by the Catholic Church in this mostly Catholic country. The practice is common in several Latin American nations and in some parts of Greece.

Originally, the burning figures were effigies of Judas Iscariot, the apostle who betrayed Jesus, according to the Biblical account of the days leading up to Christ’s crucifixion. Nowadays, though, Mexican artisans shape their Judas like red, horned devils or other characters considered evil by society.

Villarreal and other artisans made 12 figures for Saturday’s event in Santa María la Ribera neighborhood of Mexico City. Five of them were to be hanged from branches and destroyed; the others will be displayed at a nearby museum.

“It is a spectacle to see how the Judas are lit, to see the emotion of the people,” Villarreal said.

Researcher Abraham Domínguez, in an article published by the National Institute of Anthropology and History, wrote that this ritual originated in Europe during the Middle Ages and reached America with the Spanish conquest.

Although it is unknown when it first took place on this continent, the earliest records date from the 19th century. In modern times, variations of the tradition in some countries have drawn criticism for being antisemitic. A 2019 event in Poland was condemned by the World Jewish Congress and others.

But in Mexico, the tradition is embraced as positive and fun.

“By exploding with rockets, evil and betrayal are symbolically destroyed,” Domínguez wrote. “In the burning of Judas, social evil becomes laughable.”

In a few Mexican neighborhoods that host this event, some satirical figures resembling politicians burn, too.

“They are burned because of what people are accusing them of,” Villarreal said. It is a way of expressing disagreement with humor, she said.

Villarreal has spent more than a decade working in “cartonería,” as the craft of creating papier-mache sculptures is known. Most notably, “cartonería” creations fill Mexican streets during the Day of the Dead celebrations in late October and early November.

Inside each figure lies a reed skeleton covered with newspaper and cardboard. Depending on weather conditions and how fast the glue dries, it can take several weeks of work to be ready.

Villarreal speaks with enthusiasm about a 10-foot-tall Judas she and her colleagues crafted for this year’s celebration in Santa María la Ribera.

“His body is covered in masks representing the seven deadly sins. It’s awesome,” she said

Painted in blue, red and yellow, the devilish character will be spared from the fire. After Sunday, it will be transferred to the Pulque Museum, a few kilometers away from Santa María la Ribera.

This year’s celebrations in this Mexican neighborhood began on Holy Thursday. The agenda included workshops, conferences, raffles and dances.

“The most gratifying thing for us is to see that our work is part of a tradition,” Villarreal said. “It gathers people who probable didn’t know this tradition exists.”

Artisan Paula Villalobos paints her "Judas" creation that she has crafted for the upcoming "Burning of Judas," celebration, at the Santa Maria La Ribera Cultural Center, in Mexico City, Wednesday, April 5, 2023. 

 

Artisan Ana Lilia Neri works on a cardboard hand depicting a devil-like figure popularly known as “Judas,” at the Santa Maria La Ribera Cultural Center in Mexico City, Wednesday, April 5, 2023. 


Artisan Carlos Gonzalez Aldaraca paints a devil-like cardboard figure popularly known as “Judas,” at the Santa Maria La Ribera Cultural Center in Mexico City, Thursday, April 6, 2023. 

During this popular activity on the sidelines of the Holy Week celebrations of the Catholic Church, people gather in neighborhoods on Holy Saturday across the country to burn cardboard symbolic embodiments of evil. 

(AP Photo/Marco Ugarte)

Associated Press religion coverage receives support through the AP’s collaboration with The Conversation US, with funding from Lilly Endowment Inc. The AP is solely responsible for this content.

Avian flu kills 3 California condors in northern Arizona

today

 In this June 21, 2017, file photo, a California condor takes flight in the Ventana Wilderness east of Big Sur, Calif. Three California condors have died from avian flu in northern Arizona and authorities are trying to determine what killed five others in the flock. The National Park Service on Friday, April 7, 2023 said the birds that died last month tested positive for Highly Pathogenic Avian Influenza.

 (AP Photo/Marcio Jose Sanchez, File)

Marble Canyon, Ariz. (AP) — Three California condors have died from avian flu in northern Arizona and authorities are trying to determine what killed five others in the flock, the National Park Service announced Friday.

A sick female condor suspected of having lead poisoning was found dead on March 20 and testing showed it had Highly Pathogenic Avian Influenza (HPAI), the park service said.

Two other birds later found dead also tested positive, while test results aren’t yet completed for five others, the park service said.

The birds are part of a population that moves throughout northern Arizona and southern Utah, including Grand Canyon National Park, the park service said.

The Peregrine Fund, which manages the Arizona-Utah flock, also captured five other birds that seemed ill and sent them to a wildlife rescue in Phoenix. One bird died and the other four have been quarantined, officials said.

Exposure to the virus is expected to rise during the condors’ northward spring migration.

HPAI hasn’t been detected in other populations in California or Mexico’s Baja California, according to the park service.


Avian flu occurs mainly in birds including domestic chickens, but it has been found in other animals, wild and domestic, in all U.S. states except Hawaii.

Humans are considered to be at low risk from HPAI, although there have been reported infections.

The California condor is one of the world’s largest birds with a wingspan of up to 10 feet (3 meters). The birds once patrolled the sky from Mexico to British Columbia. Condors can live for 60 years and fly vast distances, which is why their range can extend into several states.

The population plummeted to the brink of extinction in the 1970s because of hunting, habitat destruction and lead poisoning from animals eating shot with lead bullets.

In the 1980s, wildlife officials captured the last remaining 22 condors and took them to the San Diego and Los Angeles zoos to be protected and bred in captivity. The birds were then released into sanctuaries and national parks where they can be monitored.

The birds have been protected as an endangered species by federal law since 1967 and by California state law since 1971.

California condors have been making a comeback in the wild and now occupy parts of California’s Central Coast, Arizona, Utah and Baja California, Mexico. The total wild population now numbers more than 300 birds.

VERY AMERIKAN CRIMINAL CAPITALI$M
Lawyer granted release in $460M ‘slip-and-fall’ Ponzi scheme

WHITE FOLKS JUSTICE

F A SWAT team arrives to provide assistance as FBI agents negotiated with Matthew Beasley, who later was shot during the confrontation before being taken into custody, March 3, 2022 in Las Vegas. Beasley, a Las Vegas lawyer accused of orchestrating a $460 million “slip-and-fall” Ponzi scheme across the U.S. West was granted release Friday, April 7, 2023 after spending more than a year in federal custody. (Bizuayehu Tesfaye/Las Vegas Review-Journal via AP, File)


LAS VEGAS (AP) — A Las Vegas lawyer accused of orchestrating a $460 million “slip-and-fall” Ponzi scheme across the U.S. West was granted release Friday after spending more than a year in federal custody.

U.S. District Judge Cam Ferenbach said he was persuaded by Matthew Beasley’s “strong family support” to give the personal injury lawyer a chance at leading a “productive life” as he awaits trial on charges of money laundering and wire fraud.

While out of custody, Ferenbach said, Beasley is required to maintain employment and barred from contacting any of the alleged victims in the case or possessing a weapon.

Assistant U.S. Attorney Daniel Schiess told the judge the federal government would appeal the decision and ask for a court order keeping Beasley in custody pending the outcome of the appeal.

Beasley was indicted last week in connection with the alleged scheme but has been in custody since March 2022, when he was shot and wounded by FBI agents who arrived at his $1.1 million home in Las Vegas to question him.

Prosecutors have said Beasley answered the door that day with a gun aimed at his own head. A four-hour standoff ensued that ended after SWAT officers entered the home.

He was charged with assault on a federal officer, leading to his yearlong detainment, but that charge was dismissed last week following his indictment in connection with the alleged Ponzi scheme.

Friday’s hearing was at times contentious as Schiess argued for Beasley’s continued detainment, citing the standoff as evidence he poses a danger to the community and to himself.

Jackie Tirinnanzi, a lawyer for Beasley, told the judge her client has a renewed outlook on life as he awaits the birth of his grandchild. She said Beasley also wants to reconnect with his children and help take care of his mother, a breast cancer survivor who has trouble walking.

In a statement afterward, Beasley’s attorneys applauded the ruling.

“Mr. Beasley has languished in Nevada Southern Detention Center for 13 months after he was shot by two FBI agents, without a warrant, in his own home,” they said.

According to the indictment, the defendant enlisted hundreds of investors starting in 2017 for a company that claimed to offer short-term loans with high interest rates to clients awaiting payment after settling personal injury “slip-and-fall” cases. Investors were allegedly promised a return of up to 13% within 90 days.

But there were no clients, according to prosecutors. Instead, Beasley is alleged to have used the incoming money to pay earlier investors.

Schiess said the scheme funded Beasley’s “luxurious” lifestyle, including luxury homes and cars, a private jet and recreational vehicles.

Beasley has pleaded not guilty, but prosecutors say that during last year’s standoff, he confessed “over and over and over again” to his involvement in the investment scheme while on the phone with a negotiator.

His trial is set to begin in June.

The Nevada Supreme Court suspended Beasley from practicing law in the state and barred him from handling client funds shortly after his arrest.

Oil-rich Alberta close to meeting methane emissions target early

About 75% of the methane emissions in Alberta come from the oil and gas sector, the provincial government estimates. File Photo by ekina/Shutterstock

April 7 (UPI) -- The oil-rich Canadian province of Alberta is on pace to meet its methane emissions targets by 2025, which recent data showing levels need to drop by only 1 percentage point to meet the goal.

Canadian crude oil production is usually around 5 million barrels per day and the viscous oil sands in Alberta account for about two-thirds of total out. Alberta's oil is among the most polluting in the world, though the provincial government has taken steps to clean up the economy.

In its second-annual report on methane emissions from the oil and gas industry, the provincial government reported levels dropped by 44% from 2014 to 2021. The government has a target of cutting emissions by 45% by 2025.

"Alberta was the first government in Canada to set a methane emissions reduction target, and we're 1% away from meeting it," said Sonya Savage, the provincial minister of the environment. "This is the result of strong leadership from the men and women in our industries, and investments in technology and innovation that are making a difference for our oil and gas sector."

The push to clean up the energy sector is backed by around USD $30 million in funds. Much of the success in Alberta can through protocols calling for more efficient operations at the oil and gas field and a reduction in flaring, the burning off of natural gas associated with crude oil.

Much of natural gas is comprised of methane, which as a greenhouse gas has a warming potential that's 25 times higher than carbon dioxide over a 100-year period, the province said.

"In Alberta, the oil and gas industry is the largest source of methane emissions," it said. "Approximately three-quarters of provincial methane emissions come from the upstream oil and gas sector."

The U.S. Environmental Protection Agency in November, meanwhile, proposed new standards on methane abatement designed to cut methane emissions associated with oil and gas production by 87% from their 2005 levels by 2030.

On Thursday, Transportation Secretary Pete Buttigieg announced millions of dollars in new grant money targets repairs, replacement and rehabilitation of nearly 270 miles of pipeline as part of a broader effort to control methane emissions.

UNION BUSTING OVERSTEP

On This Day: Truman orders seizure of steel industry

On April 8, 1952, U.S. President Harry Truman ordered government seizure of the steel industry to avoid a general strike.

 Photo courtesy of the U.S. Navy

By UPI Staff

Steel Strike of 1952

Image

Background

From 1950-1953, the United States was involved in the Korean War. To fund the war, Truman originally wanted to increase taxes and implement credit controls to limit inflation. Many Americans were opposed to this due to the previous two decades of shortages from the Great Depression and World War II rationing, so the government was forced to get creative in thinking of other ways to fund and mobilize for war. The Office of Price Stabilization (OPS) enacted price controls on various wartime industries, including steel tonnage pricing, while the Wage Stabilization Board (WSB) worked to limit wage increases for workers to what they felt was a reasonable amount. With these two major agencies, the US was able to keep producing war materials without interruption from labor and industry disputes over prices and wages.

As time went on, slight changes had to be made to the wartime economy. Taxes ultimately had to be increased over time, but wages were increasing too slowly to please many of the labor groups in the US. This situation especially upset the steel unions. The steel industry was vital to the war effort, and the steel unions were strong. They wanted to capitalize on their importance to the defense efforts by granting wage increases to steel workers. By late 1951 the unions were asking for wage increases above the 10% maximum set by the Wage Stabilization Board. The companies told the unions that they would not allow these wage increases unless they could guarantee a higher sale price for the steel they were producing. After several round of negotiations, the Office of Price Stabilization still did not agree to the tonnage hike the steel companies wanted, so the companies denied the wage increases demanded by the unions. The unions threatened to strike, and a domestic crisis began. Truman immediately threw his support behind the union workers, as they were some of his biggest political supporters. However, he found himself in a precarious political situation.

The threat of a strike continued throughout early 1952. In March, the WSB recommended the steelworkers be granted a wage increase. Worrying that their profit margins would drop if they paid their workers more money, the steel companies asked the OPS for an increase in steel tonnage pricing. The OPS refused the proposed price increase and made a lower counteroffer, angering the steel companies. In the midst of these arguments, the workers decided to strike. With important supplies for the war effort hanging in the balance, Truman had to determine what to do.

It is within the president's power to put people back to work through strikes, but there are different ways to go about it. For instance, in 1917 President Wilson nationalized the railroad industry to keep workers from striking during WWI. Truman could do something similar via Executive Order, but he had other options as well. In 1947 Congress passed the Taft-Hartley Act, which banned strategies to help workers organize unions and limited the president's power to seize industries during times of labor unrest. Instead, it offered the president the power to force workers back to work for 80 days while negotiations continued between labor and management. This option would keep wartime industries running uninterrupted. In 1948, an amendment was added to the Selective Service Act, allowing the president to seize industry facilities that were unable to fill their government orders for wartime products. The steel industry was not defaulting on its order obligations; however, as commander-in-chief, the president can make all military decisions for the United States, including mobilization efforts.

In the end, Truman issued Executive Order 10340 to seize control of the steel industries on April 8, 1952. The companies sued, resulting in a Supreme Court case to determine whether or not Truman overstepped his Constitutional powers in the steel seizures.

Key Question

Did Truman overstep his Constitutional powers in seizing the steel industries in 1952?

Directions

Steel Strike Lesson Procedures and Goals(opens in a new window)

Materials

Documents to be examined:

1. Radio and Television Address to the American People on the Need for Government Opreation of the Steel Mills, April 8, 1952
2. Letter from Harold Enarson to the President, May 8, 1952
3. Political Cartoon “We’re Waiting to Hear from the Principal,” May 24, 1952
4. Telegram from George Fehlman to the President, April 9, 1952
5. The Constitutional Issues in the Steel Case, April 26, 1952
6. Letter from Harry Truman to Supreme Court Justice William O’Douglas, July 9, 1952
7. Executive Order 10340, Directing the Secretary of Commerce to Take Possession of and Operate the Plants and Facilities of Certain Steel Companies, April 8, 1952

Handouts

1. Steel Strike Background Information(opens in a new window)
2. Steel Strike Documents to Examine(opens in a new window)
3. Steel Strike Graphic Organizer(opens in a new window)

SUPREME COURT REBUKES TRUMAN’S SEIZURE OF STEEL MILLS

David Adler
June 11, 2022

In his 6-3 opinion for the Supreme Court in the landmark case, Youngstown Sheet & Tube Co. v. Sawyer (1952), Justice Hugo Black rejected President Harry Truman’s assertion of an inherent executive power to seize the steel industry as a means of thwarting a nationwide steel strike. Black’s opinion, a historic rebuke to sweeping claims of presidential authority, provided a textbook lesson on the constraining force of the separation of powers doctrine and why it prohibited President Truman from issuing an executive order that encroached on legislative power.

President Truman, it will be recalled, had ordered Secretary of Commerce Charles Sawyer to seize the steel industry for the purpose of ensuring the continuation of steel production which he believed critical to both the United States’ role in the Korean War and the task of rebuilding Europe in the aftermath of World War II. Justice Black declared that the president’s power, “if any, to issue the order must stem from an act of Congress or from the Constitution itself.”

Black proceeded to emphasize that no statute existed that “expressly” authorized Truman’s act, nor was there any law from which such power “can be fairly implied.” Consequently, Black noted, the “necessary authority must be found in some provision of the Constitution.” But Truman made no such claim. Instead, he asserted the aggregate of his powers under the Constitution, with reliance on the Vesting Clause, the Take Care Clause and the Commander in Chief Clause.

Black easily disposed of the Commander in Chief argument and trained his sights on the president’s assertion of an inherent power. He denied that the seizure order could be upheld by the “grant of executive power to the president.” As Black explained it, “In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” The Constitution, he stated, grants to Congress, not the president, the authority to make laws.

At bottom, Congress had not authorized the president to seize private property. That fact is what united the five separate concurring opinions. While the concurring opinions written by the majority emphasized different aspects of the separation of powers, the common denominator lay in the justices’ insistence on the existence of law granting seizure authority to the president.

The majority agreed, moreover, that the president possessed no “inherent” power to seize the steel mills. The assertion of such a vague, undefined reservoir of “inherent” power, variously characterized as an emergency or prerogative power, would permit the president to act in the absence of law and even in defiance of it. In that case, the president might displace the laws of Congress, thus mortally wounding the separation of powers, which insists that the nation should be governed by known rules of law. That principle can be maintained, however, only if those who make the law have no power to execute it and those who execute it have no power to make it. That critical distinction would be eviscerated by an inherent executive power.

The Truman administration’s assertion of an “inherent” power to confront a crisis raised the profile of Youngstown to a historic level. It harkened back to one of the most fundamental, dramatic and transcendent issues in the long history of Anglo-American jurisprudence: subordinating the executive to the rule of law. The issue of the president’s relationship to the law defined the Steel Seizure Case and confronted the justices of the Supreme Court with an issue that judges have grappled with since the great English judge, Sir Edward Coke, in 1608, boldly declared to an outraged King James I that the king is indeed subject to the law.

The administration’s assertion of an emergency executive power to take any action the president believed would serve the national welfare, hadn’t been heard in an English-speaking courtroom since the mid-17th Century reign of King Charles I. While the Court rejected the claim of a presidential prerogative power, there lingered the question of which branch of government possessed the authority to meet and resolve an emergency. After all, it is not possible for Congress to write laws to govern every conceivable emergency that might arise. And it is scarcely imaginable that a government could stand idly by in the face of a crisis that threatens lives and the future of the nation simply because it had not occurred to the legislature to act. In other words, the problem of emergency could not be wished away or relegated to the confines of an academic seminar. If the president does not possess a constitutionally based emergency power, then the question arises: What is the constitutional prescription for meeting an emergency? The framers’ answer lay in resort to the ancient doctrine of retroactive ratification, which we explain in our next column.