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Fifth Circuit drops bombshell on Planned Parenthood — and the national media

Westlake Legal Group cmp-trailer Fifth Circuit drops bombshell on Planned Parenthood — and the national media The Blog Texas Supreme Court planned parenthood medicaid fifth circuit defund David Daleiden Center for Medical Progress

Planned Parenthood took a body blow at the Fifth Circuit Court of Appeals last night — and so did the national news media. Despite the universally adopted narrative that the videos produced by David Daleiden and the Center for Medical Progress had been “debunked,” the appellate court unanimously ruled that the videos were not deceptively edited and presented compelling evidence of misconduct. They vacated the district court’s injunction that forced Texas to keep Planned Parenthood on its Medicaid rolls and ordered a new review on the merits.

Sparks was skeptical. Texas contended the videos showed Planned Parenthood discussing the illegal sale of fetal tissue of aborted babies, an interpretation Planned Parenthood has disputed. Sparks, in turn, said the state had not produced “even a scintilla of evidence” suggesting Planned Parenthood should be disqualified from Medicaid based on the videos.

But on Thursday, the U.S. Court of Appeals for the 5th Circuit said Sparks is the one who had it all wrong. The three-judge panel found he used the incorrect standard of review, vacating Sparks’s 2017 preliminary injunction that had blocked Texas from defunding Planned Parenthood, and remanding the case back to the district court for further review.

The ruling from the 5th Circuit effectively gives weight to the sting videos and the conclusions Texas reached based on them in a way the court hasn’t offered before. It comes just one month after the Supreme Court left in place a previous ruling by the 5th Circuit in favor of Planned Parenthood. In that case, the 5th Circuit rejected Louisiana’s effort to defund the health-care provider that had been based in part on the sting videos, mostly because the state hadn’t actually cited the videos in writing when announcing its decision to terminate the Planned Parenthood contract and lacked other adequate reasoning. (The Supreme Court also declined to hear a similar effort from Kansas.)

But Texas did cite the videos, in a state report — and that’s the big difference.

Indeed it is, and it opens up another opportunity to have the Supreme Court take up the case.

The opinion itself takes a sharply critical tone toward Judge Sam Sparks’ attitude toward the state’s HHS Office of Inspector General and scolded him for discarding their opinion in favor of Planned Parenthood’s witnesses. In her concurring opinion, Judge Edith Jones notes that the state has empowered the OIG to “investigate and penalize Medicaid program violations,” and is due deference from the courts — especially with the evidence they had at hand.

The court rebuked Sparks for assuming the videos were unauthenticated:

The district court stated, inaccurately, that the CMP video had not been authenticated and suggested that it may have been edited.6 The district court also noted that neither the Inspector General nor the Medical director had expert knowledge concerning abortion procedures. And the court discounted Ms. Farrell’s videotaped statements because she claimed on the witness stand that she really had no personal knowledge of the medical aspects of abortion procedures and had never even been in the room when an abortion was performed. …

In any event, there is no question that the OIG here made factual findings after viewing the videos and related evidence. On the basis of the administrative record—not the post hoc justifications offered by plaintiffs’ witnesses in the district court—the OIG determined that video discussions “centered on clinic processes and tissue packaging rather than the abortion procedure itself; the video featured repeated discussion about the position of the fetus in the uterus, the risk to the patient, and the patient’s pain tolerance.” The OIG further concluded, based on the videos, that the Provider Plaintiffs at a minimum violated federal standards regarding fetal tissue research and standards of medical ethics by allowing doctors to alter abortion procedures to retrieve tissue for research purposes or allowing the researchers themselves to perform the procedures. The plaintiffs’ briefing with regard to the substance of the discussions contained in the videos (as opposed to their trial witnesses’ post hoc justifications) is curiously silent.

In footnote 6, the court dispensed with the “debunked” narrative:

In fact, the record reflects that OIG had submitted a report from a forensic firm concluding that the video was authentic and not deceptively edited. And the plaintiffs did not identify any particular omission or addition in the video footage. Moreover, the district court also suggested that there was no evidence that any of PPGC’s research was federally funded, so the regulations relied on by OIG might be inapplicable. But the record actually establishes that the UTMB study was funded by the National Institute of Health.

In other words, the videos have been authenticated. Far from being “debunked,” they depict exactly what they appear to depict — abortion providers discussing how to illegally jigger abortion methods in order to maximize revenue on fetal tissue. The court ruled that the state’s inspector general made a reasonable decision to rely on this evidence in disqualifying Planned Parenthood locations from its Medicaid program, and even more ruled that Sparks acted unreasonably and arbitrarily in discounting the video evidence in favor of post hoc rationalizations from Planned Parenthood.

The ruling remands the case back to the district court for a new review. This time, Sparks is restricted to the question of whether the OIG acted arbitrarily and capriciously in striking Planned Parenthood from the state’s Medicaid program based solely on the administrative record. Since Planned Parenthood never responded to the administrative action but filed a lawsuit instead, the answer to that is likely to be a resounding no. Planned Parenthood will need to appeal this decision to prevent that standard from being applied, which runs the risk that the Supreme Court will finally step into the CMP videos case and affirm states’ rights to deny Medicaid funding on the basis of that evidence.

In other words … pass the popcorn. And alert the media.

The post Fifth Circuit drops bombshell on Planned Parenthood — and the national media appeared first on Hot Air.

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He’s running. Another Democrat decides to run away and join the 2020 circus

Westlake Legal Group JulianCastro He’s running. Another Democrat decides to run away and join the 2020 circus The Blog Texas Julian Castro 2020 Democratic primaries

And then there were… how many? I’m already starting to lose track. The parade of Democrats hoping for the chance to take on Donald Trump in 2020 just grew larger yet again. The next entrant will be competing with Beto O’Rourke for donations from his home state because Julian Castro is also from Texas. This announcement was about as surprising as the sun rising in the east and it was delivered with very little fanfare. (NBC News)

Julián Castro, a former U.S. Cabinet secretary, launched his presidential campaign in the hometown where he served as mayor for three terms. The announcement surprised few, but puts him near the front of what is expected to be a jam-packed field of White House hopefuls.

Making the announcement at Plaza Guadalupe in the San Antonio’s West Side neighborhood where he grew up, Castro said in English and Spanish that he is running for president.

The grandson of an immigrant from Mexico, Castro said his grandmother could have never imagined that two generations later one son would be a member of Congress and another would be standing before the crowd to say, “I am a candidate for the president of the United States of America.” Castro, who was referring to his twin brother U.S. Rep. Joaquín Castro, then repeated his candidacy in Spanish.

How NBC decided to tag Castro as a frontrunner for the nomination is something of a mystery. That might be true if you’re only considering the constellation of Democrats who are officially in the running already. He’s probably got at least as good of a chance as Warren or Gabbard, but that’s not saying much.

One of Castro’s major problems is that he really doesn’t have much of a resume compared to some of the heavier hitters we’re expecting to get into the race over the next few months. He spent some time as a city councilman and then mayor in San Antonio, but he was more of a “local news” phenomenon until Barack Obama plucked him out of Texas and gave him a cabinet position at Housing and Urban Development. Since leaving that post he hasn’t exactly been making headlines.

And it wasn’t really the sort of cabinet job that traditionally launches public servants to greatness, like Attorney General or Secretary of State. There have been 17 HUD Secretaries and not one of them has gone on to be their party’s nominee, say nothing of becoming president. The one who comes the closest is the current office holder, Ben Carson, but he was a primary candidate before taking that office, so it doesn’t really count. Aside from that, Castro doesn’t have much to point to in terms of accomplishments or national name recognition.

Even if we’re only examining the usual demographic pigeonhole race the Democrats love to engage in, Castro doesn’t gain too much of a leg up. I’m sure the party would love to see a Latino nominee, but we really seem to be in a holding pattern while they wait for the (cue dramatic music) First Female President. A straight, married dude with two kids isn’t exactly going to set the hard left on fire. On top of that, keep in mind that Castro was a Hillary endorser in the 2016 race. That’s probably not going to endear him with the Bernie Bros.

But hey… best of luck and welcome to the party, pal. Hopefully, they’ll make room for you at a very crowded table. You don’t want to get caught in a situation like some of the 2016 Republicans who were forced to debate at the kiddie table because they ran out of room on the main stage.

The post He’s running. Another Democrat decides to run away and join the 2020 circus appeared first on Hot Air.

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A quick solution to defiant landowners along the border

Westlake Legal Group BorderFence A quick solution to defiant landowners along the border The Blog Texas Eminent Domain Border wall border

As the President heads down to the Texas border this morning, there’s no sign of any sort of deal involving another $5.7B to build hundreds of additional miles of wall, fence, steel slats or whatever the description of the day happens to be. It’s easy to forget, however, that Donald Trump previously secured some funding for 33 miles of “barrier” in Texas last March and that work is supposed to be kicking into gear. Simply having the money, however, doesn’t mean the project is shovel ready. First, the government must secure the land to put the wall on.

That’s not a given in many cases. The Associated Press has an interview with one landowner with property along the Rio Grande who has no intention of allowing construction on her property. And she claims that it’s not a question of writing him a big enough check.

As President Donald Trump travels to the border in Texas to make the case for his $5.7 billion wall, landowner Eloisa Cavazos says she knows firsthand how the project will play out if the White House gets its way.

The federal government has started surveying land along the border in Texas and announced plans to start construction next month. Rather than surrender their land, some property owners are digging in, vowing to reject buyout offers and preparing to fight the administration in court.

“You could give me a trillion dollars and I wouldn’t take it,” said Cavazos, whose land sits along the Rio Grande, the river separating the U.S. and Mexico in Texas. “It’s not about money.”

Ms. Cavazos is only one of many thorns in Trump’s side when it comes to building the border wall. So what should the government do about these defiant landowners? Negotiations leading to a resolution which satisfies both parties would be the ideal situation, but some, like Cavazos, who say that even “a trillion dollars” wouldn’t do the trick aren’t going to allow that to be an option.

The more crude, sledgehammer approach would be to then resort to eminent domain. That should clearly be a legally viable option, despite what some of the talking heads on CNN are saying this week. Under proper use of eminent domain, the land in question must be taken for “public use.” (Of course, the execrable Kelo decision states that land can be taken for “public benefit” which makes it all the easier, but vastly hypocritical for conservatives.) A water or sewage treatment plant is “used” by the public even if they don’t physically go and hang out at the facility because such projects serve the entire community. In the same fashion, a wall that protects the citizens from foreign invaders is “used” by everyone.

Still, to be true to conservative principles, eminent domain should be avoided wherever possible, respecting the rights of landowners to forge their own future. So if we can’t negotiate with the landowners and don’t wish to forcibly seize their property, what option is left? I have one suggestion, though some will find it distasteful.

First, let’s answer the question of specifically where a border wall has to be placed. We don’t put it exactly on the border. In many cases that would require building it in the middle of a river. You can’t even put it directly on the riverbank because the land is generally too weak and muddy to support such a structure. With that as a starting point, there really isn’t any hard and fast rule as to how far back from the border the barrier must be.

Keeping that premise in mind, if Ms. Cavazos doesn’t want to negotiate a deal to have the wall on her property, let’s pull the line back until we reach a piece of land that can be made available and build it there. In other words, all of the property owners along the border who don’t wish to support protecting our border can be put on the other side of the wall. This doesn’t need to be a cruel or inhumane solution. We’ll be sure to provide a port of entry every so often along the fence and have roads running along the outside so property owners can reach them. Assuming the landowners are all legal U.S. citizens, they will have no trouble getting through customs at the port of entry for any business they need to conduct in the interior of the country. (It just might take a bit longer if there are a lot of people waiting to get through.)

Problem solved. This plan carries an added bonus. The more border that’s secured with a proper barrier, the fewer customs and immigration enforcement agents will be needed to patrol it. That will free them up to handle the traffic of legal travelers needing to pass through the ports of entry. Of course, as soon as the landowners learn that they’re about to find themselves on the wrong side of the wall, they may reconsider that whole negotiating thing.

The post A quick solution to defiant landowners along the border appeared first on Hot Air.

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Does America really need cricket?

Westlake Legal Group Cricket Does America really need cricket? The Blog Texas Sports India Cricket Baseball

Generally, if you open an article here at Hot Air with a sports tag on it we’re talking about football. But perhaps it’s time to expand our horizons a bit in this era of globalism and international harmony. (/sarc) Have you heard about the new sport sweeping the nation? No, we’re not talking about soccer. And it’s not even lacrosse, though that’s been gaining in popularity. I only wish we were talking about curling, which seriously needs a more high-profile national league structure.

No, I’m talking about cricket. It seems that out in Houston, Texas (of all places) cricket is really catching on. And it’s not sandlot level either. Somebody is already in the process of building a massive cricket stadium and setting up a league with multiple teams. (Washington Post)

For hours each Sunday, four circular grassy fields on the side of U.S. Route 290 play host to dozens of men wielding flat-faced wooden bats. Most are immigrants whose conversations are a blend of English, Urdu and Hindi, and terms that many outsiders might find just as foreign — wickets, stumps and bails.

The game they play is cricket, and its emergence here reflects the incredible diversity of the nation’s fourth-largest city and its sprawling reach. Prairie View, situated about 45 miles from downtown Houston, might seem an unlikely place for an international cricket destination, but Houston businessman Tanweer Ahmed is looking to change that.

Ahmed is turning an 86-acre lot into a massive sports complex with seven cricket fields, a youth academy and a stadium big enough to host professional teams.

“Cricket is the second most popular sport in the world after soccer, and the U.S. is missing out on that part of the world,” he said. “But the U.S. has huge potential.”

Clearly, cricket is wildly popular in England, India, much of Asia and beyond. Why this is true remains a mystery, but the popularity of the sport is undeniable. But like many other things coming out of Europe, that doesn’t mean that it automatically translates to an American audience. This may be particularly true for cricket when you consider American appetites for sporting events.

The biggest reason is the length of the matches. Your typical American football game runs for roughly three hours… perhaps as much as four if there are a lot of penalties and it goes into overtime. Baseball games can vary a bit, but even record-setting marathon tie games are still wrapped up in a single night. Hockey is closely regulated in time, as is soccer. But your average cricket match is played over three to five days with, at least, six hours of cricket being played each day. There are apparently single day cricket matches (I confess I don’t know anything about the rules) but they take at least six hours.

How many Americans are going to sit through that much activity just to cheer on their team for a single game? From the sounds of the description in the linked article, the majority of the people in the Houston area who are pushing cricket are immigrants from various nations where the game is popular. But that’s not how Americans generally consume their sports. We like fast paced games with plenty of scoring and action we can cheer. That’s yet another factor in why soccer will never be as big as football. Too many of the games end in a zero-zero tie and have to go to some sort of obscene penalty kick phase to decide a winner.

I’m not saying cricket should be banned. Far from it. Even when it comes to sports we live in a free-market, capitalist system. If you want to launch a cricket league and you can attract enough of an audience to make it popular, best of luck to you and I hope it turns out well. But I’m not sitting through an endless marathon of cricket.

The post Does America really need cricket? appeared first on Hot Air.

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Hmmm: Poll shows Cruz’s lead in Texas Senate race down to four

Westlake Legal Group hmmm-poll-shows-cruzs-lead-in-texas-senate-race-down-to-four Hmmm: Poll shows Cruz’s lead in Texas Senate race down to four Trump The Blog Texas Senate Public Policy Polling ppp o'rourke debates cruz

Westlake Legal Group tc-2 Hmmm: Poll shows Cruz’s lead in Texas Senate race down to four Trump The Blog Texas Senate Public Policy Polling ppp o'rourke debates cruz

Biiiiig caveat upfront: This comes from Public Policy Polling, a left-wing outfit, and was paid for by a group called, ahem, End Citizens United. Feel free to discount accordingly. Before you do, though, note that (a) Quinnipiac, a respected pollster, had Cruz ahead by a similar six points a few days ago, and (b) the last poll of the race commissioned by End Citizens United apparently had him at 50 percent. It’s not like the group’s data has been remorselessly favorable to O’Rourke.

Either way, the fate of the Senate will not turn on this race. Cruz will very likely win, but there’s no plausible scenario in which he gets upset while the rest of the GOP performs respectably nationwide. If Texas goes blue, it’s a coast-to-coast bloodbath. The only suspense will be the Democrats’ margin in the Senate.

The survey, conducted by the left-leaning firm Public Policy Polling, found O’Rourke, an El Paso congressman, trailing Cruz 42 percent to 46 percent. That’s closer than the 8-point lead PPP gave Cruz when it surveyed the race in January for End Citizens United, a Democratic group focused on campaign finance reform…

Once voters were told about O’Rourke’s decision to reject PAC money, he took the lead, 46 percent to 43 percent. The January poll produced a similar result, giving O’Rourke a 2-point advantage after respondents were informed he isn’t taking PAC money.

The most recent poll is the third this week to show a single-digit race between Cruz and O’Rourke. Cruz’s campaign was critical of the two previous surveys, taking issue with their methodologies and samples.

Just a fluke? Not to the pros at Cook Political Report. They’re moving the race, which in most years would be “solid Republican,” from “likely Republican” to “lean Republican.” Next stop: Toss-up.

Of the eight general election polls aggregated on RealClearPolitics, six showed Cruz at between 47 percent and 51 percent. In those same six polls, O’Rourke was between 39 percent and 43 percent. While O’Rourke has room to grow, Cruz is consistently closer to and in some cases at or above 50 percent. In a state as Republican as Texas, those last few points that O’Rourke needs to hit 50 percent are going to be very hard (and very expensive) to get. There are some observers who believe that there simply aren’t enough Democratic and Democratic-leaning independents voters to push O’Rourke across the line. In fact, a Democrat hasn’t represented Texas in the Senate since 1993 when appointed U.S. Sen. Bob Krueger served for six months (Democrat Lloyd Bentsen served from 1971 – 1993). There are others who believe that O’Rourke can attract some more establishment Republicans who just don’t like Cruz. In a cycle like this, it is hard to simply dismiss such a proposition.

O’Rourke has outraised Cruz this year and has nearly $5 million more in the bank than Cruz does. Benjy Sarlin poses an intriguing question: Are Cruz’s numbers soft because of lingering hard feelings towards him by Trump fans in Texas? There’s some reason to believe that Cruz himself is worried about it. His tweets lately calling on Facebook to un-ban Alex Jones and for prosecutors to take a look at James Gunn for his old social media postings seem aimed squarely at right-wing populists, exactly the type of people most likely to hold a grudge against him for not endorsing Trump at the convention in 2016.

But the Quinnipiac data doesn’t back it up. Cruz’s job approval among Texas Republicans is 84/9. By comparison, Trump’s approval is 84/12. (John Cornyn’s is 59/9.) Gov. Greg Abbott is rated slightly more highly among Republicans than Cruz at 87/6, but the big difference between them is among independents. Cruz splits 47/47 among indies on job approval whereas Abbott splits 55/33. Cruz’s problem is the same as it’s always been — righties actually like him quite a bit, it’s, er, everyone else that’s the problem. Which, I suspect, is why he took the unusual step for an incumbent of challenging his opponent to five debates. He’s worried about those independents, most of whom are likely to be right-leaning, viewing the race as a pure “Cruz vs. Not Cruz” choice. If that happens, it’s not crazy to think “Not Cruz” pulls an upset. If, however, he lets those indies see for themselves that O’Rourke is a true-blue progressive, then it’s no longer “Cruz vs. Not Cruz.” It’s “Cruz vs. the Liberal.” In Texas, Cruz wins that race.

An interesting question looms for him: Does he want Trump campaigning for him or not? *If* Sarlin’s right that there’s some faction of populists in Texas who are iffy on Cruz, the only thing that might get them to the polls is an in-person seal of approval from the MAGA-in-chief. The risk is that having Trump show up in the state risks confounding the “Cruz vs. the Liberal” narrative that the campaign is setting up. Because Trump dominates media so totally, a presidential cameo could turn the race into a “Pro-Trump vs. Anti-Trump” narrative on Election Day, which is probably still a winner in Texas but not as sure a winner as “Republican vs. the Liberal” is. I think Cruz will politely ask him to keep his distance. A tweeted endorsement will suffice.

Exit question: President O’Rourke?

The post Hmmm: Poll shows Cruz’s lead in Texas Senate race down to four appeared first on Hot Air.

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