This past week, two very different courts issued rulings that will have momentous effects on the lives of millions of Americans.
In Washington, D.C., the US Supreme Court ruled that the Biden administration hadn’t followed correct procedures when it overhauled Trump’s Migrant Protection Protocols (MPP), which force tens of thousands of would-be asylees to remain in Mexico while their cases wend their way through the US court system. The six conservative justices came together in a majority ruling mandating that US agencies continue to enforce the MPP.
It’s a horrifying, though not particularly surprising, ruling. And it means that, at least in the short term, America’s asylum process will continue to bear the imprint of Trump and his odious henchman Stephen Miller. As a result, thousands of desperate migrants will remain cooped up in treacherous, sometimes deadly conditions in camps south of the border.
Meanwhile, on the other side of the continent, Alameda County Superior Court Judge Frank Roesch was hearing a challenge to Proposition 22, an Uber- and Lyft-sponsored initiative passed last November that was intended to do an end-run around AB5, a labor-law passed by state legislatures to ensure that gig workers received benefits from their employers.
AB5 was poorly worded legislation in need of repair and modification, as I wrote in The Nation; its authors created such broad definitions of gig workers that they ended up hamstringing creative freelancers in the state who need the flexibility to do everything from writing for multiple publications to getting gigs to perform music at multiple venues.
But Proposition 22 wasn’t about fine-tuning a well-intentioned but flawed bill; it was about using the vast financial muscle of the gig-driver platforms to exempt companies from basic worker protection laws. The gig-driving companies spent hundreds of millions of dollars pushing the proposition, and it ultimately passed with more than 58 percent of the vote.
Last week, however, Judge Roesch ruled that the proposition was “unenforceable,” because it clashed with existing provisions of California’s Constitution. As a result, he wrote, it couldn’t stand as law, and thus AB5’s basic intent—of forcing companies such as Uber and Lyft to provide benefits to their workers—remained intact.
This isn’t the first time a far-reaching, and regressive, California initiative has been blocked by the courts. Back in 1997, a judge ruled that the state’s viciously anti-immigrant Proposition 187, which mandated the state to do citizenship-screening for all residents accessing any public services, including K-12 schools, and to deny services to those deemed “illegal,” was unconstitutional. Because of that ruling, the proposition, passed with 59 percent support in 1994, wasn’t implemented.
Putting a judicial kibosh on Prop 187 gave progressives breathing room to organize, and to educate voters about the issues. They used this time wisely; and over the years that followed, Californians’ views on immigration changed dramatically. Today, huge majorities in the state express support for programs such as DACA.
Conceivably, Roesch’s ruling will provide the same sort of breathing room for labor organizers to educate Californians on the importance of gig companies’ providing decent benefits to their work force.
Meanwhile, Larry Elder, the de facto Republican front-runner in the anti-Newsom recall effort, ought to be in all kinds of heat after his opponents began hammering him for comments he made in a 2002 book arguing that employers have a right to ask women they are thinking of hiring whether they intend to become pregnant—taking a positive answer as a pretext to deny employment.
In a state with some of the most far-reaching and progressive workplace protection and anti-discrimination laws in the country, such comments—which Elder doubled down on this week—should seal his fate. So too should his support for eradicating the minimum wage, in a state with a $15 minimum wage that has enjoyed widespread popular support over the past several years.
But the recall process being the electoral farce that it is, if 50 percent or more of voters don’t vote “No” on the recall question, Elder could get elected simply by effectively tapping into an energized GOP base. He doesn’t need crossover appeal, or to build a coalition; at that point, all he needs is one more vote than his nearest rival.
On Wednesday evening, three Republican candidates and a lone Democrat took part in a televised debate. There was 36-year-old Republican Assemblyman Kevin Kiley; the ex-mayor of San Diego, Kevin Faulconer; John Cox, a businessman who ran against, and was thumped by, Gavin Newsom in 2018; and a 29-year-old You Tube influencer, Kevin Paffrath, a political neophyte and techno-utopian who sounds like a cross between Andrew Yang, Pete Buttigieg and Elon Musk, and who has, somehow, emerged as the most plausible Democrat on part two of the recall ballot.
Apart from the fact that it was a bizarre number of Kevins to have on one stage, the other takeaway from the debate was how hard it will be for any of these candidates to break out over the coming weeks. Cox is simply a blowhard, a right-wing businessman who recycles stale canards about corrupt and inept politicians and elites. Kiley and Faulconer both come off as well-meaning, solution-oriented, and fairly moderate, yet neither has the charisma to stand out in a crowded field. Paffrath—who by default will likely gain a large number of votes from Democrats nervous at the lack of top-tier progressive candidates on part two of the ballot—throws out big ideas, such as rapidly building a massive water pipeline pumping ungodly amounts of water from the Mississippi River out to drought-parched California. But when it comes to knowledge of how the political process in America’s biggest state works, he seems woefully underprepared. At one point he referred to the state Legislature as “Congress.”
Governor Newsom has made the political calculation that it serves his case to not take part in these debates. He chooses to stand above the process, rather than deign to dignify it with his participation. For different reasons, so does Larry Elder, who hightails it to Fox News or to a private fundraiser whenever his rivals are sparring on the debate platform. The radio host has other ways of directly reaching his intended audience, and taking part in nitty-gritty policy debates doesn’t fit his purpose. As a result, Elder has become something of an elusive target. Like Trump, he has been impervious to the tsunami of allegations against him—including the revelation that an ex-girlfriend accused him of brandishing a loaded gun against her during a domestic argument. His poll numbers have, in recent weeks, held constant.
Meanwhile, during this rather apocalyptic summer, the state continues to burn and burn and burn. The Caldor fire is now just a handful of miles west of the wondrous beauty of Lake Tahoe, and the air quality in its fabled lakefront hamlets is now the worst of any place in the United States. Up north, in Portland, Ore., violent political clashes between right-wing extremists and antifascists continue apace, with the police either unable or unwilling to step into the fray to separate out the warring political tribes.
There’s an edgy feel to the Pacific coastal states these hot, dry summer days. The recall election in California only adds to the sense of looming crisis.