Trump ‘Prepared’ For Responsibility Of Using Nukes

In a wide-ranging interview with Piers Morgan on Good Morning Britain, President Trump said that he’s ready to press the nuclear button if and when the time comes. 

When asked if he would negotiate with Iranian President Hassan Rouhani to avoid war, Trump said “Of course. I’ve said that and he’s said that. I know so much about nuclear weapons and I see the horrible damage done. I don’t want that.” 

Morgan then asked Trump if he would press the nuclear button, to which Trump replied: “I think it’s a terrible responsibility but one I’m prepared to handle,” adding “I don’t want to have to think about it, but there may be a time when I do have to think about it.”

At one point in the interview, Morgan presented Trump with a monogramed “Churchill” hat, which Trump said “looked much better” on Churchill. 

The Daily Mail sums up the rest of the interview, which spanned topics from gun control to climate change. 

On Prince Harry and Meghan Markle

Donald Trump said it was ‘OK’ for the Duchess of Sussex to make ‘nasty’ comments about him as he sought to clear the air with the American-born royal.

He also insisted that her husband, Prince Harry, ‘couldn’t have been nicer’ towards him during his state visit to the UK.   

Asked point blank if he thought Meghan Markle was ‘nasty’ or not, President Trump replied: ‘They said some of the things that she said and It’s actually on tape. And I said: ‘Well, I didn’t know she was nasty’. I wasn’t referring to she’s nasty. I said she was nasty about me. And essentially I didn’t know she was nasty about me.’

He went on to say: ‘You know what? She’s doing a good job, I hope she enjoys her life… I think she’s very nice.’

Pressed by Piers to clear up the statement he made earlier about the Duchess unequivocally , he added: ‘… she was nasty to me. And that’s okay for her to be nasty, it’s not good for me to be nasty to her and I wasn’t…’

He also said that he had spoken to Prince Harry and what he said to the young royal at a recent meeting.

Piers asked, ‘Did you get a chance to talk to Prince Harry?’

President Trump replied: ‘I did, I did and I congratulated him and I think he’s a terrific guy. The Royal Family is really nice.’

Piers added: ‘Did he say: ‘Come on – do you think my wife’s nasty?’

POTUS replied: ‘We didn’t talk about it…I was going to because it was so falsely put out there. And when you see that transcript and you see, it’s the exact opposite of what they said. Did you look at the transcript?’

Talking about Harry’s behaviour, he added Prince Harry had been far from frosty, saying of the rumours that he didn’t want to talk to him: ‘…No, no, no, just the opposite. In fact, he spent a lot of time talking to Ivanka and talking to my family. I went up – he couldn’t have been nicer. Couldn’t have been nicer… I think he’s great.’

On the Queen  

Donald Trump said he watched the Queen’s coronation in 1953 when he was six-years-old with his mother Mary, who was born and raised in Scotland.  

‘Well she would have been very proud. She would’ve never thought in terms of ‘president’ because I never talked in terms of running for president. I decided to do it and I won. I said to a couple of people: ‘I think I’m going to do it’ and then I said to my wife: ‘I think I’ll give it a shot.’ She said: ‘You know you’ll win.’

‘But I will say that my mother would have been very proud. She was a tremendous fan of this country and she was… she loved Scotland. She grew up in Stornoway. She left at 19 for New York, she met my father and they were married for…

‘She loved the Royals, she loved the Queen. And I always noticed, whenever anything was on about the Queen she would watch. She was a big fan of this…I told her [The Queen] last night. She was very honoured. But my mother would always… she just had great respect. She understood. My mother understood people very well. She knew people. And she got it right from the beginning. The Queen is a great lady and my mother knew that.’ 

Was yesterday the greatest experience of your life?

‘I’ve been through some pretty big things. I watched the news and heard ‘he’s never had to handle things like this’ when I was due to walk into Buckingham Palace.

‘It’s right up there.’

What did you discuss with the Queen? 

‘We had a long conversation, an hour and a half. But I can’t tell you about that as I’ve heard we’re not allowed to.

‘I think I’m on good behaviour most of the time. I really got what the media were saying, [about visiting the Palace being a huge moment] especially when you were talking in with the Queen, very slowly and with that certain music.’

Prince Charles and climate change   

President Trump revealed that Prince Charles stressed the importance of protecting the environment for future generations in their meeting. The pair had a long conversation in which the royal shared his views.

The President explained: ‘We were going to have a 15-minute chat. And it turned out to be an hour and a half. And he did most of the talking. He is really into climate change, and I think that’s great, I mean I want that, I like that’

Piers asked whether Trump had listened to what the Prince had to say. Replied Trump: ‘What he really wants, and what he really feels warmly about is the future. He wants to make sure future generations have climate that is good climate as opposed to a disaster. And I agree.

‘I did mention a couple of things, I did say, ‘Well the United States right now has among the cleanest climates there are, based on all statistics, and it’s even getting better,’ Because I agree with that, I want the best water, the cleanest water. Crystal clean – it has to be crystal clean…’

Piers then expressed that people want to hear that the President understands that ‘climate change is a very real and present danger’. Said Piers: ‘And if we don’t tackle it now – and America has to lead the way along with China and India – then we’re going to be in serious trouble’

Replied Trump: ‘Well you know, you just said it. China, India, Russia, many other nations they have not very good air, not very good water in the sense of pollution and cleanliness. If you go to certain cities, I’m not going to name cities, but I can. If you go to certain cities you can’t even breathe and now that air is going up, so if we have a clean, in terms of a planet, we’re talking about a very small, you know, very small distance, between China and the US, or other countries.

Piers went on, ‘Were you able to give Prince Charles any comfort, that you as the United States President are taking this seriously.’

Said Trump: ‘I think I was yeah. I think, I think we had a great conversation and it was about, as you would call it, climate change, but, I think we had a very, very good time.

Piers also asked Trump whether Prince Charles had moved him.

Trump continued: ‘I’ll tell you what moved me is his passion for future generations he’s really not doing this for him. He’s doing this for future generations. He wants to have a world that’s good for future generations.’

‘Now he’s Prince Charles, he doesn’t have to worry about future generations in theory, unless he’s a very good person who cares about people. And that’s what impressed me, maybe the most, his love for this world.’ 

On banning transgender people from the armed forces and not serving in Vietnam

Transgender service had been barred until President Barack Obama’s changed the rule. Donald Trump announced a policy changes of his own on Twitter in July 2017 that were later officially codified by the Pentagon and then-Secretary of Defense James Mattis.  

Why don’t you allow transgender people to serve?

‘Because they take massive amounts of drugs, they have to. And if you’re in the military you’re not allowed to take any drugs. They have to after the operation, they have no choice. And you’d have to break rules and regulations to have that.’

But the medical bills are very low. Isn’t it unnecessary?

‘It is what it is. Massive amounts. Also people were going in and asking for the operation. Then they take large amounts of drugs after that, you can’t do that. So when it came to the decision on that, the cost of the drugs and operations, you couldn’t do that.

‘You have to have a standard and you have to stick to that standard. You have very strict rules and regulations on drugs and prescription drugs and they blow it out of the water.’

Do you wished you’d served in Vietnam?

‘I was never a fan of that war. I thought it was a terrible war, it was very far away.

‘Nobody had heard of Vietnam… this wasn’t like fighting against Nazi Germany or Hitler. I wasn’t out on the streets marching or saying I would move to Canada but I wasn’t a fan.

‘I would have been honoured [to serve in the military generally] but I think I’m making up for it now because we’re rebuilding our military at a level you’ve never seen before.’

Is it not beneath you to attack John McCain when he’s dead?

‘I don’t attack him. I didn’t bring his name up, you did. I was not a fan, I didn’t like what he did to healthcare or veterans. But Piers, you’re asking me a question, if you didn’t ask me about John McCain I wouldn’t talk about him.

‘I didn’t know anything about the battleship and I’m not even sure if it happened. I hear it’s fake news, maybe it is, maybe it isn’t. But again, I don’t talk about John McCain unless someone asks me about him.’

On Jeremy Corbyn

Piers Morgan also quizzed the President on whether he could see himself doing a trade deal with Jeremy Corbyn if he became Prime Minister, after he declined to meet the Labour leader during his trip to the UK.

Asked by Piers, ‘Could you imagine actually doing a trade deal with Britain, with someone like Jeremy Corbyn as a leader?’, Trump replied: ‘It’s always possible. Anything is possible.

‘I don’t know him. He wanted to meet, it was a very tough to meet and probably inappropriate to be, to be honest with you. A lot of things are happening right now with respect to our country and your country, my country and let’s call the almost the same because I feel that way, it’s really a tremendous relationship. So, I didn’t think it was appropriate to meet him, but I would. I certainly would have no problem with it.

‘I think it’s a long shot when you say that, you know, I don’t, I don’t think it’s going to happen.’ 

UK knife crime vs US gun crime

‘But in London you have stabbings. I read an article… they said your hospital is a sea of blood.

‘But Piers, when somebody has a gun illegally and the others don’t they have no chance. The bad guys are not getting rid of their guns. The people who obey the laws are sitting ducks. The thing I think about the most is Paris… if there was a gun on the other side…’

Why do you need AR-15?

‘A lot of them use them for entertainment, they do. They go out to ranges and shoot them.’

‘If the [Vegas] guy didn’t have guns he’d have used bombs or something else. The guy was very clever and a successful gambler… Then he went out and did that […].’

Piers claims he convinced him to ban bump stocks. What do you think about silencers?

‘I’d like to think about [banning silencers]. I’m going to seriously look at it. I don’t like the idea of it, what’s happening is crazy.’

On the next US election  

Will you win the next election?

‘I’m running on maybe the greatest economy we’ve ever had… I’m in the midst of several trade negotiations where I have the cards. I have the cards on Mexico… so I have a lot of things that we’re working on.

‘I don’t see any Democrats to worry about, there are no Winston Churchills in the group, let’s put it that way.

‘When I took over Isis was all over the place now we’ve taken over 100percent of the caliphate.’

On the NHS 

Piers asked: ‘No leader, no leader it seems to me, would allow Britain to effectively sell the NHS as part of a trade deal. Would you as the American President see that as ‘deal breaker’ if none of the NHS was on the table?’

The President replied: ‘I don’t see it being on the table. Somebody asked me a question today and I say everything is up for negotiation, because everything is. But I don’t see that as being, that something that I would not consider part of trade. That’s not trade.’

Watch the full interview below: 

via ZeroHedge News http://bit.ly/31cr6cb Tyler Durden

China’s Central Bank: “Everyone, Please Don’t Worry”

Submitted by Almost Daily Grant‘s

Many unhappy returns. Thirty years ago, British ambassador Sir Alan Donald cabled home his classified report on the bloody goings-on in Tiananmen Square: “Students linked arms but were mown down. Armored personnel carriers then ran over the bodies time and time again to make, ‘pie’, and remains collected by bulldozer, incinerated and then hosed down drains. . .”

Unsurprisingly, the Xi Jinping-led government has little interest in commemorating the event, or in allowing others to pause and remember. Domestic social media platforms have “barred users from changing their profile photos and other information,” Bloomberg says, while financial data company Refinitiv has blocked all Tiananmen-related stories from its Eikon terminals, after the Cyberspace Administration of China “threatened to suspend the company’s service,” according to Reuters.

While Refinitiv may suffer a reputational knock in the West for this evident kowtow, its social credit score looks poised for an upgrade.       

If only the recent trouble in China’s banking system could be so easily suppressed. Following the government’s takeover of distressed Baoshang Bank Co., the People’s Bank of China tried to calm the situation by assuring investors that no further such interventions were in the cards: “Everyone,” says a message on the PBOC website: “please don’t worry. At present we don’t have this plan.” But Bloomberg reports today that a pair of smaller institutions, Guilin Bank Co., Ltd. and Jincheng Bank Co., Ltd., have delayed plans to sell RMB 1 billion ($140 million) in tier-2 bond sales following the Baoshang news.  

Over the weekend, Bank of Jinzhou, which holds $113 billion and $53 billion of assets and deposits, respectively, saw its auditor Ernst & Young Hua Ming LLP resign due to “indications that some loans to institutional customers weren’t used in ways consistent with the purposes stated in documents,” per Bloomberg. In response, the bank’s 5.5% dollar-pay perpetual bonds fell below 65 from 81 a week ago, for a 19.2% yield-to-call.

In a report on May 28, Anne Stevenson-Yang, co-founder of J Capital Research explains that the emergence of systemic balance-sheet risk is inevitable in China’s command economy:

What regulators fail to see, or at least to admit, is that there is fundamentally a contradiction between clean banks and targeted growth. The growth can be achieved only by heroic additions of credit, which has been growing at about 2.5 times the rate of GDP, itself clearly exaggerated.

Stevenson-Yang points out the contradiction between healthy reported metrics and the abrupt seizure of Baoshang and apparent stress at small and medium-size lenders:

One of the more unusual aspects of the Baoshang drama is that it’s been reported – not only that, but high-level authorities have publicly expressed concerns that there may be bank runs and financial institutions that ‘disappear.’ This is peculiar for an economy that claims to be growing at 6.5%, have average non-performing loan rates under 1.5% and that has buoyant construction and property markets.

[ZH: we said all of that on May 27 in “A Big Wake Up Call”: Chinese Bond Market Roiled By First Ever Bank Failure.]

via ZeroHedge News http://bit.ly/2WLSspY Tyler Durden

Rutgers Defunds Student Paper Because Referendum Turnout Was Too Low

Here’s a strange case of campus censorship: Rutgers University will cease funding The Daily Targum after the student newspaper failed to garner enough support in a referendum.

The Targum actually won on the question of funding: 68 percent of students who participated in the vote said they wanted the paper to continue receiving financial support. But according to a quaint university policy, the paper had to earn support from 25 percent of the entire student body. Since turnout was only about 25 percent, The Daily Targum would have needed virtually everyone who showed up to vote yes.

That doesn’t sit well with the Foundation for Individual Rights in Education (FIRE), which has called on the public university to reverse course and fund the paper anyway.

According to FIRE, Rutgers’ referendum policy violates the First Amendment:

Court precedents forbid public colleges from distributing student activity fees by referenda. The Supreme Court has said, under the First Amendment, the power to impose a mandatory student activity fee is tied to the obligation to distribute that fee in a viewpoint-neutral way. A referendum cannot be viewpoint-neutral because, as the Supreme Court has held in another student fee funding case, “access to a public forum … does not depend upon majoritarian consent.”

This is not a small matter: The paper collects about $540,000 in student fees each year to support its operations.

In recent years, The Targum had come under fire from a conservative student group after it accused the group’s president of modeling a promotional poster off of a white supremacist flyer. (He later admitted he had done exactly that.) The conservative students urged their fellow students to vote against funding for The Targum, or to not vote at all, since either outcome would imperil the paper’s funding. Evidently, they got their way.

In any case, Rutgers should heed FIRE’s warning. To subject the student paper to a bizarre personality contest in which it can lose even by winning is ridiculous. And if right-wing students don’t want to be accused of tacitly supporting white supremacy, they should not take design advice from Vanguard America.

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Rutgers Defunds Student Paper Because Referendum Turnout Was Too Low

Here’s a strange case of campus censorship: Rutgers University will cease funding The Daily Targum after the student newspaper failed to garner enough support in a referendum.

The Targum actually won on the question of funding: 68 percent of students who participated in the vote said they wanted the paper to continue receiving financial support. But according to a quaint university policy, the paper had to earn support from 25 percent of the entire student body. Since turnout was only about 25 percent, The Daily Targum would have needed virtually everyone who showed up to vote yes.

That doesn’t sit well with the Foundation for Individual Rights in Education (FIRE), which has called on the public university to reverse course and fund the paper anyway.

According to FIRE, Rutgers’ referendum policy violates the First Amendment:

Court precedents forbid public colleges from distributing student activity fees by referenda. The Supreme Court has said, under the First Amendment, the power to impose a mandatory student activity fee is tied to the obligation to distribute that fee in a viewpoint-neutral way. A referendum cannot be viewpoint-neutral because, as the Supreme Court has held in another student fee funding case, “access to a public forum … does not depend upon majoritarian consent.”

This is not a small matter: The paper collects about $540,000 in student fees each year to support its operations.

In recent years, The Targum had come under fire from a conservative student group after it accused the group’s president of modeling a promotional poster off of a white supremacist flyer. (He later admitted he had done exactly that.) The conservative students urged their fellow students to vote against funding for The Targum, or to not vote at all, since either outcome would imperil the paper’s funding. Evidently, they got their way.

In any case, Rutgers should heed FIRE’s warning. To subject the student paper to a bizarre personality contest in which it can lose even by winning is ridiculous. And if right-wing students don’t want to be accused of tacitly supporting white supremacy, they should not take design advice from Vanguard America.

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US Slams Russia Over Unsafe, “Irresponsible” Spy Plane Intercept Near Syria

The US and Russia exchanged barbs after a Russian fighter jet allegedly made a dangerous high-speed pass that threatened a US Navy spy plane during an intercept over the Mediterranean Sea near Syria on Tuesday, the U.S. Sixth Fleet said, but Moscow said its pilot had behaved responsibly.

“While the Russian aircraft was operating in international airspace, this interaction was irresponsible,” the Sixth Fleet said in a statement urging Russians “to behave within international standards set to prevent incidents.”

Boeing P-8A Poseidon

“The U.S. aircraft was operating consistent with international law and did not provoke this Russian activity,” it said quoted by Reuters.

The Sixth Fleet said the Russian jet had made three intercepts, two of which it deemed to be safe. But it said one of the intercepts of the P-8A Poseidon involved a high-speed pass directly in front of the U.S. aircraft that produced wake turbulence and “put our pilots and crew at risk.”

The full statement from the Sixth Fleet is below:

On June 4, 2019, a U.S. P-8A Poseidon aircraft flying in international airspace over the Mediterranean Sea was intercepted by a Russian SU-35 three times over the course of 175 minutes. The first and third interaction were deemed safe. The second interaction was determined to be unsafe due to the SU-35 conducting a high speed pass directly in front of the mission aircraft, which put our pilots and crew at risk. The crew of the P-8A reported wake turbulence following the second interaction. The duration of the intercept was approximately 28 minutes.

While the Russian aircraft was operating in international airspace, this interaction was irresponsible. We expect them to behave within international standards set to ensure safety and to prevent incidents, including the 1972 Agreement for the Prevention of Incidents On and Over the High Seas (INCSEA). Unsafe actions‎ increase the risk of miscalculation and potential for midair collisions.

The U.S. aircraft was operating consistent with international law and did not provoke this Russian activity.

Meanwhile, Russia’s Ministry of Defence said it had scrambled a Sukhoi Su-35 jet from its air base in Syria to intercept the US plane which it said had been approaching Russia’s Tartus naval facility on the Syrian coast, the RIA news agency reported on Wednesday.

Moscow denied its aircraft had acted irresponsibly, saying it had stayed at a safe distance and had returned to its base after the U.S. aircraft changed course.

via ZeroHedge News http://bit.ly/2XvGCNW Tyler Durden

Dollar, Stocks, Bond Yields Tumble After Dismal Jobs Print

The market’s kneejerk reaction to the collapse in employment growth was weakness in stocks and the dollar and a bid for bonds…

Bad news is not good news today for stocks…

Treasury yields are sliding…10Y -5bps…

2Y Yields plunged below 1.80% – the lowest since Dec 2017…

And the dollar is dumping further (back below the 1200 level for Bloomberg’s index)…

So yesterday markets cheered Powell’s hints at rate-cuts if the economy weakened, and today we get confirmation that the economy is weakening and the market is upset…

via ZeroHedge News http://bit.ly/2Ij40YL Tyler Durden

ADP Employment Growth Crashes To 9 Year Lows

Following April’s strong beat on ADP employment (talked down with zeal by Mark Zandi), May was expected to show slowing growth in employment but instead it collapsed.

ADP reports that America added just 27k jobs in May (185k exp). This is the weakest growth since March 2010

“Following an overly strong April, May marked the smallest gain since the expansion began,” said Ahu Yildirmaz, vice president and co-head of the ADP Research Institute.

“Large companies continue to remain strong as they are better equipped to compete for labor in a tight labor market.”

Small business employment collapsed by 52k (large business rose)

Goods producing jobs tumbled as Services rose…

Mark Zandi, chief economist of Moody’s Analytics, said, “Job growth is moderating. Labor shortages are impeding job growth, particularly at small companies, and layoffs at brick-and-mortar retailers are hurting.

Great news for The Fed.

via ZeroHedge News http://bit.ly/2K5fzpR credittrader

“This Is A Violation Of Policy”: Tesla May End Up A Pawn In Chinese Trade War

Tesla announced on Tuesday that it would start offering three year interest free financing in Beijing, also allowing customers in the Chinese capital to rent license plates for free for up to three years. However, those plans caused a stir on Chinese social media, according to The Global Times, where some people pointed out that China could investigate this offer as retaliation for the U.S. trade war with the country.

China has already clamped down on several American companies – fining Ford $23.6 million for antitrust violations and investigating FedEx for “wrongful deliveries”. Of these coincidentally timed hiccups, Andrew Polk, co-founder of research firm Trivium China in Beijing said: “At this stage I think our baseline assumption should be that there are no coincidences.”

Now the question is whether or not Tesla could be the next pawn in the ongoing trade war.

The company said on its Weibo account that its interest free service could save consumers $7,673 and that its free license plate rental could save consumers about $8,600. Customers buying a Tesla Model 3 long range would “only need to pay 120,000 yuan as a deposit, plus a rental fee of 11,700 yuan every month,” the company’s post said.

The move marks a big bet on the Chinese market despite the ongoing tension between the two countries. But some consumers have reportedly forwarded Tesla’s announcement to the official Weibo account of the Beijing Municipal Commission of Transport (BMCT).

One user said: “It’s a big discount, but are you sure your license plate rental service is not on the edge of the law? This is a violation of policy.” Another commented: “[China] has been pushed to this point amid an escalation of the trade war, could the BMCT take notice of this issue and take measures?”

Finally, one 20-something Beijing resident focused on Tesla’s volatile business model, simply stating: “There may be another huge discount in the near future, so I prefer to buy homegrown electric cars over US brands.”

via ZeroHedge News http://bit.ly/2Ku47mO Tyler Durden

A Skeptic’s Look at Administrative Constitutionalism

I’ve posted my recent Notre Dame Law Review article, Antidiscrimination Laws and the Administrative State: A Skeptic’s Look at Administrative Constitutionalism, over at SSRN. Here is the abstract:

This Article discusses why administrative agencies charged with enforcing antidiscrimination legislation while implicitly undertaking administrative constitutionalism tend to be inconsiderate of constitutional limitations on government authority in general, and especially of the limitations imposed by the First Amendment’s protection of freedom of expression.

To establish the existence and contours of the problem, Part I of this Article provides context by recounting several detailed examples of how federal, state, and local civil rights agencies have favored broad antidiscrimination enforcement over countervailing constitutional doctrines that impose limits on regulatory authority. These examples include the U.S. Department of Education’s Office of Civil Rights’ Obama-era attempts to use Title IX to strip university students accused of sexual assault of due process protection and to impose broad speech codes on universities, the U.S. Department of Housing and Urban Development’s (“HUD”) efforts in the 1990s to penalize neighborhood activists for lobbying against projects HUD deemed protected by the Fair Housing Act, local human rights commissions’ threats to punish individuals for otherwise protected speech deemed to cause a hostile environment, and state and local agencies’ willingness to prosecute individuals who discriminate in their choice of roommate.

Part II of this Article discusses the reasons why agencies that enforce antidiscrimination laws tend to be oblivious or hostile to constitutionally protected liberties in general and freedom of speech in particular. Part II begins with a discussion of institutional factors common to administrative agencies that tend to lead agencies to expand their power and neglect countervailing constitutional considerations. First, agencies increase their budget and authority by expanding, not contracting, the scope of the laws they enforce. Second, “purposivism,” or the notion that ambiguities in statutes should be resolved to further the laws’ underlying purposes, encourages agencies to resolve statutory interpretation disputes in favor of broad interpretations of agency authority. Third, antidiscrimination agencies attract employees ideologically committed to their agencies’ missions. Fourth, and concomitantly, agency staff (unlike generalist courts) generally do not see enforcing constitutional limitations on government power, or protecting freedom of speech specifically, as their job. Part II concludes with a discussion of political and ideological factors specific to agencies charged with enforcing antidiscrimination laws that make them especially prone to neglect constitutional restraints on their authority.

Part III of this Article suggests solutions that may at least mitigate administrative neglect of civil liberties in the context of antidiscrimination law. Most of these solutions involve broad reforms that would have ramifications well beyond mitigating the problem addressed in this Article. A more limited and therefore practical reform would be for agencies that enforce antidiscrimination legislation to establish an internal watchdog office charged with advocating within the agencies for compliance with the First Amendment and other constitutional constraints.

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A Skeptic’s Look at Administrative Constitutionalism

I’ve posted my recent Notre Dame Law Review article, Antidiscrimination Laws and the Administrative State: A Skeptic’s Look at Administrative Constitutionalism, over at SSRN. Here is the abstract:

This Article discusses why administrative agencies charged with enforcing antidiscrimination legislation while implicitly undertaking administrative constitutionalism tend to be inconsiderate of constitutional limitations on government authority in general, and especially of the limitations imposed by the First Amendment’s protection of freedom of expression.

To establish the existence and contours of the problem, Part I of this Article provides context by recounting several detailed examples of how federal, state, and local civil rights agencies have favored broad antidiscrimination enforcement over countervailing constitutional doctrines that impose limits on regulatory authority. These examples include the U.S. Department of Education’s Office of Civil Rights’ Obama-era attempts to use Title IX to strip university students accused of sexual assault of due process protection and to impose broad speech codes on universities, the U.S. Department of Housing and Urban Development’s (“HUD”) efforts in the 1990s to penalize neighborhood activists for lobbying against projects HUD deemed protected by the Fair Housing Act, local human rights commissions’ threats to punish individuals for otherwise protected speech deemed to cause a hostile environment, and state and local agencies’ willingness to prosecute individuals who discriminate in their choice of roommate.

Part II of this Article discusses the reasons why agencies that enforce antidiscrimination laws tend to be oblivious or hostile to constitutionally protected liberties in general and freedom of speech in particular. Part II begins with a discussion of institutional factors common to administrative agencies that tend to lead agencies to expand their power and neglect countervailing constitutional considerations. First, agencies increase their budget and authority by expanding, not contracting, the scope of the laws they enforce. Second, “purposivism,” or the notion that ambiguities in statutes should be resolved to further the laws’ underlying purposes, encourages agencies to resolve statutory interpretation disputes in favor of broad interpretations of agency authority. Third, antidiscrimination agencies attract employees ideologically committed to their agencies’ missions. Fourth, and concomitantly, agency staff (unlike generalist courts) generally do not see enforcing constitutional limitations on government power, or protecting freedom of speech specifically, as their job. Part II concludes with a discussion of political and ideological factors specific to agencies charged with enforcing antidiscrimination laws that make them especially prone to neglect constitutional restraints on their authority.

Part III of this Article suggests solutions that may at least mitigate administrative neglect of civil liberties in the context of antidiscrimination law. Most of these solutions involve broad reforms that would have ramifications well beyond mitigating the problem addressed in this Article. A more limited and therefore practical reform would be for agencies that enforce antidiscrimination legislation to establish an internal watchdog office charged with advocating within the agencies for compliance with the First Amendment and other constitutional constraints.

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