Category: reason

Biden Administration Reverses DOJ Position in Texas ACA Case

There was little question that the Biden Administration would be more eager to defend the Affordable Care Act in court than was the Trump Administration. As had been widely reported, the federal government’s legal position in California v. Texas was dictated by the White House, not Justice Department lawyers. Now, however, the federal government reversed course.

Earlier today, Deputy Solicitor General Edwin Kneedler sent a letter informing the Supreme Court that the Department of Justice has reconsidered its position on the constitutionality of the mandate-sans-penalty and the severability of the mandate from the remainder of the Act.

The letter reads in relevant part:

On November 10, 2020, this Court heard oral argument in these consolidated cases concerning whether, as a result of the elimination in 2017 of the monetary payment under 26 U.S.C. 5000A, which was enacted as part of the Patient Protection and Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 119, that provision is no longer a valid exercise of Congress’s legislative authority; and whether, if that provision is now invalid, the remainder of the ACA’s provisions are inseverable from it.

1. The federal respondents had previously filed a brief contending that Section 5000A(a) is unconstitutional and is inseverable from the remainder of the ACA, although the scope of relief entered should be limited to the provisions shown  to injure the plaintiffs. The government advanced the same positions at oral argument.

Following the change in Administration, the Department of Justice has reconsidered the government’s position in these cases. The purpose of this letter is to notify the Court that the United States no longer adheres to the conclusions in the previously filed brief of the federal respondents.

2. After reconsideration of the issue, it is now the position of the United States that the amended Section 5000A is constitutional. In National Federation of Independent Business v. Sebelius (NFIB), this Court held that the payment provision in Section 5000A could be sustained as a valid exercise of Congress’s constitutional power because it offered a choice between maintaining health insurance and making a tax payment. 567 U.S. 519, 570, 574 & n.11 (2012). In so ruling, the Court noted that no negative legal consequences attached to not buying health insurance beyond requiring a payment to the IRS, and that the government’s position in the case confirmed that if someone chooses to pay rather than obtain health insurance, that person has fully complied with the law. Id. at 568. Congress in 2017 amended Section 5000A(c) by reducing to zero (effective in 2019) the shared responsibility payment assessed under Section 5000A(b) as a lawful alternative to purchasing insurance under Section 5000A(a), see Tax Cuts and Jobs Act, Pub. L. No. 115-97, Tit. I, § 11081, 131 Stat. 2092, but it did not amend Section 5000A(a) or (b). In the view of the United States, Congress’s decision to reduce the payment amount to zero therefore did not convert Section 5000A from a provision affording a constitutional choice into an unconstitutional mandate to maintain insurance. Rather than imposing a new burden on covered individuals, the 2017 amendment preserved the choice between lawful options and simply eliminated any financial or negative legal consequence from choosing not to enroll in health coverage.

It is also now the position of the United States that, if this Court nevertheless concludes that Section 5000A(a) is unconstitutional, that provision is severable from the remainder of the ACA. The severability inquiry typically requires asking “whether Congress would have wanted the rest of [a statute] to stand, had it known that” one or more particular provisions of the statute would be held invalid. NFIB, 567 U.S. at 587 (opinion of Roberts, C.J.). And the “normal rule is that partial, rather than facial, invalidation is the required course.” Free Enter. Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 508 (2010) (citation and internal quotation marks omitted). In the view of the United States, that presumption of severability cannot be overcome here, particularly as the 2017 Congress that reduced to zero the amount of the shared responsibility payment option under Section 5000A simultaneously left in place the remainder of the ACA.

3. Because oral argument was held and these cases were submitted three months ago, and because other parties have fully briefed both sides of the questions presented, the United States is not requesting supplemental briefing.

Of note, the brief does not alter the Justice Department’s position on whether the plaintiffs have standing to bring their claims.

This letter may be too late to influence the Supreme Court’s resolution of the case. As VC readers know, I do not think the claims in California v. Texas have much merit, and do not believe the Court was likely to have given the Justice Department’s prior position much heed. Accordingly, I doubt this last-minute change will affect the case’s outcome, or even the vote of a single justice. That said, it does put the Biden Administration on record in this case.

For those interested in more on California v. Texas, here is a list of my prior VC posts on the case, and a few NYT op-eds. (Updated to keep the list more current.)

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Breaking: Deputy Solicitor General Kneedler Withdraws SG’s Brief in ACA Case

Last week, I wrote about the possibility of the Biden Administration withdrawing the Trump Administration’s brief in California v. Texas. Today, Deputy Solicitor General Kneedler filed a letter with the Supreme Court taking that action. (As I suspected, Acting SG Prelogar is recused, as she filed an amicus brief in this case).

First, the letter characterized the SG’s former position.

The federal respondents had previously filed a brief contending that Section 5000A(a) is unconstitutional and is inseverable from the remainder of the ACA, although the scope of relief entered should be limited to the provisions shown to injure the plaintiffs. The government advanced the same positions at oral argument.

This statement is accurate. The SG never argued that the entire ACA must fall. No matter how many times that statement is printed, it is not accurate.

Second, the letter states that the position changed after the change in administrations. There is no reference to “upon further reflection.”

Following the change in Administration, the Department of Justice has reconsidered the government’s position in these cases. The purpose of this letter is to notify the Court that the United States no longer adheres to the conclusions in the previously filed brief of the federal respondents.

Third, the letter adopts the “choice” reading of NFIB:

After reconsideration of the issue, it is now the position of the United States that the amended Section 5000A is constitutional. In National Federation of Independent Business v. Sebelius (NFIB), this Court held that the payment provision in Section 5000A could be sustained as a valid exercise of Congress’s constitutional power because it offered a choice between maintaining health insurance and making a tax payment. 567 U.S. 519, 570, 574 & n.11 (2012). In so ruling, the Court noted that no negative legal consequences attached to not buying health insurance beyond requiring a payment to the IRS, and that the government’s position in the case confirmed that if someone chooses to pay rather than obtain health insurance, that person has fully complied with the law. Id. at 568.

For reasons I have explained many, many time, this “choice” reading can only exist in Part III.C of the Chief’s controlling opinion, under the auspices of the saving construction. See the Cato brief for details.

Fourth, the letter states that the 2017 TCJA did not convert Section 5000A(a) into an unconstitutional mandate. The same choice remains:

In the view of the United States, Congress’s decision to reduce the payment amount to zero therefore did not convert Section 5000A from a provision affording a constitutional choice into an unconstitutional mandate to maintain insurance. Rather than imposing a new burden on covered individuals, the 2017 amendment preserved the choice between lawful options and simply eliminated any financial or negative legal consequence from choosing not to enroll in health coverage.

Fifth, the letter states the new position with respect to severability. In short, Section 5000A(a) can be severed from the remainder of the statute.

It is also now the position of the United States that, if this Court nevertheless concludes that Section 5000A(a) is unconstitutional, that provision is severable from the remainder of the ACA. The severability inquiry typically requires asking “whether Congress would have wanted the rest of [a statute] to stand, had it known that” one or more particular provisions of the statute would be held invalid. NFIB, 567 U.S. at 587 (opinion of Roberts, C.J.). And the “normal rule is that partial, rather than facial, invalidation is the required course.” Free Enter. Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 508 (2010) (citation and internal quotation marks omitted). In the view of the United States, that presumption of severability cannot be overcome here, particularly as the 2017 Congress that reduced to zero the amount of the shared responsibility payment option under Section 5000A simultaneously left in place the remainder of the ACA.

Sixth, the SG did not request a new round of briefing. There was no need to. The SG has now lined itself up with California and other amici:

Because oral argument was held and these cases were submitted three months ago, and because other parties have fully briefed both sides of the questions presented, the United States is not requesting supplemental briefing.

If the Court had decided this case last week, the Justices would have obviated the need for the SG to switch sides. Now, the SG has done so. Sometime between now and the end of June, we will get a decision. Stay tuned.

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Biden Administration Reverses DOJ Position in Texas ACA Case

There was little question that the Biden Administration would be more eager to defend the Affordable Care Act in court than was the Trump Administration. As had been widely reported, the federal government’s legal position in California v. Texas was dictated by the White House, not Justice Department lawyers. Now, however, the federal government reversed course.

Earlier today, Deputy Solicitor General Edwin Kneedler sent a letter informing the Supreme Court that the Department of Justice has reconsidered its position on the constitutionality of the mandate-sans-penalty and the severability of the mandate from the remainder of the Act.

The letter reads in relevant part:

On November 10, 2020, this Court heard oral argument in these consolidated cases concerning whether, as a result of the elimination in 2017 of the monetary payment under 26 U.S.C. 5000A, which was enacted as part of the Patient Protection and Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 119, that provision is no longer a valid exercise of Congress’s legislative authority; and whether, if that provision is now invalid, the remainder of the ACA’s provisions are inseverable from it.

1. The federal respondents had previously filed a brief contending that Section 5000A(a) is unconstitutional and is inseverable from the remainder of the ACA, although the scope of relief entered should be limited to the provisions shown  to injure the plaintiffs. The government advanced the same positions at oral argument.

Following the change in Administration, the Department of Justice has reconsidered the government’s position in these cases. The purpose of this letter is to notify the Court that the United States no longer adheres to the conclusions in the previously filed brief of the federal respondents.

2. After reconsideration of the issue, it is now the position of the United States that the amended Section 5000A is constitutional. In National Federation of Independent Business v. Sebelius (NFIB), this Court held that the payment provision in Section 5000A could be sustained as a valid exercise of Congress’s constitutional power because it offered a choice between maintaining health insurance and making a tax payment. 567 U.S. 519, 570, 574 & n.11 (2012). In so ruling, the Court noted that no negative legal consequences attached to not buying health insurance beyond requiring a payment to the IRS, and that the government’s position in the case confirmed that if someone chooses to pay rather than obtain health insurance, that person has fully complied with the law. Id. at 568. Congress in 2017 amended Section 5000A(c) by reducing to zero (effective in 2019) the shared responsibility payment assessed under Section 5000A(b) as a lawful alternative to purchasing insurance under Section 5000A(a), see Tax Cuts and Jobs Act, Pub. L. No. 115-97, Tit. I, § 11081, 131 Stat. 2092, but it did not amend Section 5000A(a) or (b). In the view of the United States, Congress’s decision to reduce the payment amount to zero therefore did not convert Section 5000A from a provision affording a constitutional choice into an unconstitutional mandate to maintain insurance. Rather than imposing a new burden on covered individuals, the 2017 amendment preserved the choice between lawful options and simply eliminated any financial or negative legal consequence from choosing not to enroll in health coverage.

It is also now the position of the United States that, if this Court nevertheless concludes that Section 5000A(a) is unconstitutional, that provision is severable from the remainder of the ACA. The severability inquiry typically requires asking “whether Congress would have wanted the rest of [a statute] to stand, had it known that” one or more particular provisions of the statute would be held invalid. NFIB, 567 U.S. at 587 (opinion of Roberts, C.J.). And the “normal rule is that partial, rather than facial, invalidation is the required course.” Free Enter. Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 508 (2010) (citation and internal quotation marks omitted). In the view of the United States, that presumption of severability cannot be overcome here, particularly as the 2017 Congress that reduced to zero the amount of the shared responsibility payment option under Section 5000A simultaneously left in place the remainder of the ACA.

3. Because oral argument was held and these cases were submitted three months ago, and because other parties have fully briefed both sides of the questions presented, the United States is not requesting supplemental briefing.

Of note, the brief does not alter the Justice Department’s position on whether the plaintiffs have standing to bring their claims.

This letter may be too late to influence the Supreme Court’s resolution of the case. As VC readers know, I do not think the claims in California v. Texas have much merit, and do not believe the Court was likely to have given the Justice Department’s prior position much heed. Accordingly, I doubt this last-minute change will affect the case’s outcome, or even the vote of a single justice. That said, it does put the Biden Administration on record in this case.

For those interested in more on California v. Texas, here is a list of my prior VC posts on the case, and a few NYT op-eds. (Updated to keep the list more current.)

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Breaking: Deputy Solicitor General Kneedler Withdraws SG’s Brief in ACA Case

Last week, I wrote about the possibility of the Biden Administration withdrawing the Trump Administration’s brief in California v. Texas. Today, Deputy Solicitor General Kneedler filed a letter with the Supreme Court taking that action. (As I suspected, Acting SG Prelogar is recused, as she filed an amicus brief in this case).

First, the letter characterized the SG’s former position.

The federal respondents had previously filed a brief contending that Section 5000A(a) is unconstitutional and is inseverable from the remainder of the ACA, although the scope of relief entered should be limited to the provisions shown to injure the plaintiffs. The government advanced the same positions at oral argument.

This statement is accurate. The SG never argued that the entire ACA must fall. No matter how many times that statement is printed, it is not accurate.

Second, the letter states that the position changed after the change in administrations. There is no reference to “upon further reflection.”

Following the change in Administration, the Department of Justice has reconsidered the government’s position in these cases. The purpose of this letter is to notify the Court that the United States no longer adheres to the conclusions in the previously filed brief of the federal respondents.

Third, the letter adopts the “choice” reading of NFIB:

After reconsideration of the issue, it is now the position of the United States that the amended Section 5000A is constitutional. In National Federation of Independent Business v. Sebelius (NFIB), this Court held that the payment provision in Section 5000A could be sustained as a valid exercise of Congress’s constitutional power because it offered a choice between maintaining health insurance and making a tax payment. 567 U.S. 519, 570, 574 & n.11 (2012). In so ruling, the Court noted that no negative legal consequences attached to not buying health insurance beyond requiring a payment to the IRS, and that the government’s position in the case confirmed that if someone chooses to pay rather than obtain health insurance, that person has fully complied with the law. Id. at 568.

For reasons I have explained many, many time, this “choice” reading can only exist in Part III.C of the Chief’s controlling opinion, under the auspices of the saving construction. See the Cato brief for details.

Fourth, the letter states that the 2017 TCJA did not convert Section 5000A(a) into an unconstitutional mandate. The same choice remains:

In the view of the United States, Congress’s decision to reduce the payment amount to zero therefore did not convert Section 5000A from a provision affording a constitutional choice into an unconstitutional mandate to maintain insurance. Rather than imposing a new burden on covered individuals, the 2017 amendment preserved the choice between lawful options and simply eliminated any financial or negative legal consequence from choosing not to enroll in health coverage.

Fifth, the letter states the new position with respect to severability. In short, Section 5000A(a) can be severed from the remainder of the statute.

It is also now the position of the United States that, if this Court nevertheless concludes that Section 5000A(a) is unconstitutional, that provision is severable from the remainder of the ACA. The severability inquiry typically requires asking “whether Congress would have wanted the rest of [a statute] to stand, had it known that” one or more particular provisions of the statute would be held invalid. NFIB, 567 U.S. at 587 (opinion of Roberts, C.J.). And the “normal rule is that partial, rather than facial, invalidation is the required course.” Free Enter. Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 508 (2010) (citation and internal quotation marks omitted). In the view of the United States, that presumption of severability cannot be overcome here, particularly as the 2017 Congress that reduced to zero the amount of the shared responsibility payment option under Section 5000A simultaneously left in place the remainder of the ACA.

Sixth, the SG did not request a new round of briefing. There was no need to. The SG has now lined itself up with California and other amici:

Because oral argument was held and these cases were submitted three months ago, and because other parties have fully briefed both sides of the questions presented, the United States is not requesting supplemental briefing.

If the Court had decided this case last week, the Justices would have obviated the need for the SG to switch sides. Now, the SG has done so. Sometime between now and the end of June, we will get a decision. Stay tuned.

Update: A colleague flagged a seventh point. Kneedler did not address Noel Francisco’s position with respect to standing. Perhaps this move reaffirms the point I made in my prior post: the SG would not want to win on standing.

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Rep. Peter Meijer: Only GOP Freshman Who Voted To Impeach Trump Tells All

Peter-Meijer

Just three days after being sworn into Congress to represent Michigan’s 3rd district, Republican freshman Peter Meijer found himself and colleagues trapped without security in the bowels of the Capitol building while a riot that ultimately claimed five lives raged all around him. 

The following week, he was one of just 10 Republicans—and the only first-termer—to vote to impeach Donald Trump, a decision that led to a narrowly failed censure vote from his own state’s GOP and immediate announcements that he will be primaried in 2022. 

The 33-year-old Army veteran who served in Iraq didn’t expect his first few days in Congress to be so chaotic, but he says his military training helps him stay steady as he fills the seat vacated by Libertarian Justin Amash. On the campaign trail, Meijer supported Donald Trump but says that the truculent behavior of the former president and many members of his own party after Election Day not only caused the January 6 riot but cost the GOP the Senate.

Meijer tells Nick Gillespie why he believes in limited government, economic freedom, and individualism; why he’s against out-of-control stimulus spending and military adventurism; and how he plans to combat the craziness he sees both on the right and left in the House of Representatives. He also talks about what he’s learned about business and public service from being the scion of the Meijer superstore chain, how generational fault lines may be every bit as important as partisan ones, and why he’s committed to voting his principles rather than his constituents’ will.

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Rep. Peter Meijer: Only GOP Freshman Who Voted To Impeach Trump Tells All

Peter-Meijer

Just three days after being sworn into Congress to represent Michigan’s 3rd district, Republican freshman Peter Meijer found himself and colleagues trapped without security in the bowels of the Capitol building while a riot that ultimately claimed five lives raged all around him. 

The following week, he was one of just 10 Republicans—and the only first-termer—to vote to impeach Donald Trump, a decision that led to a narrowly failed censure vote from his own state’s GOP and immediate announcements that he will be primaried in 2022. 

The 33-year-old Army veteran who served in Iraq didn’t expect his first few days in Congress to be so chaotic, but he says his military training helps him stay steady as he fills the seat vacated by Libertarian Justin Amash. On the campaign trail, Meijer supported Donald Trump but says that the truculent behavior of the former president and many members of his own party after Election Day not only caused the January 6 riot but cost the GOP the Senate.

Meijer tells Nick Gillespie why he believes in limited government, economic freedom, and individualism; why he’s against out-of-control stimulus spending and military adventurism; and how he plans to combat the craziness he sees both on the right and left in the House of Representatives. He also talks about what he’s learned about business and public service from being the scion of the Meijer superstore chain, how generational fault lines may be every bit as important as partisan ones, and why he’s committed to voting his principles rather than his constituents’ will.

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Trump’s Impeachment Lawyers Try To Deconstruct the Link Between What He Said and What His Followers Did

Capitol-riot-1-6-21-Newscom-3

The House members who are prosecuting Donald Trump on the charge that he incited last month’s Capitol riot opened their case yesterday with a dramatic video that intersperses scenes of the violence with the former president’s words that day. It clearly shows that Trump supporters inspired by his oft-repeated fantasy of a stolen presidential election broke down security barriers, attacked police officers, smashed windows and doors, stormed the building, and forced the members of Congress who were about to ratify Joe Biden’s victory to run for their lives instead.

Since the Senate voted yesterday to proceed with the trial, rejecting the argument that it has no authority to try a former president, the task for Trump’s lawyers is to deconstruct the connection between what he said and what his followers did. Judging from their trial memorandum, they will attempt to do that by arguing that Trump never advocated violence, that some of his supporters planned to attack the Capitol even before his inflammatory pre-riot speech, and that he cannot reasonably be held responsible for the behavior of individuals who interpreted his demand that they “fight like hell” to “stop the steal” in a more literal way than he intended.

That strategy would make sense if Trump faced a criminal charge of incitement to riot or a lawsuit seeking compensation for the deaths, injuries, and property damage caused by the attack. But it fundamentally misconstrues the basis of his impeachment, which alleges that he abused his power, violated his oath to uphold the Constitution, neglected his duties as president, and undermined democracy by using extralegal means to overturn the election results. To defend against those charges, it is not enough to argue that Trump could not be held accountable for the riot in a criminal case or civil lawsuit.

“The Federal Bureau of Investigation has confirmed that the breach at the Capitol was planned several days in advance of the rally, and therefore had nothing to do with the President’s speech on January 6th at the Ellipse,” Trump’s lawyers say. The fact that some of Trump’s supporters talked about attacking the Capitol before they arrived in Washington, of course, does not mean that none of the rioters were moved by his fiery rhetoric that day. More to the point, Trump had been persistently promoting his delusion that he actually won the election by a landslide for months, and the protesters came to D.C. at his behest to stop Biden from taking office. He invented the grievance that motivated the rioters, including those who planned ahead as well as those who acted in the heat of the moment.

As Trump urged his followers to “walk down to the Capitol,” the House managers’ video shows, Trump supporters reacted with cries of “Take the Capitol!” While Trump was still speaking, a group of his supporters peeled away from the crowd to begin the march. When they arrived at the Capitol, they started dismantling the security barriers around it, brawling with police officers, and heading up the steps.

Quoting from a Gateway Pundit post, Trump’s lawyers note that it takes about half an hour to walk the 1.6 miles between Ellipse Park, the site of the “Save America” rally, and the Capitol. Trump began speaking just before noon and continued until 1:12 p.m. Yet protesters “had already breached Capitol Grounds a mile away 19 minutes prior to the end of President Trump’s speech.”

That is not exactly an airtight defense, given that video shows protesters at the rally heading for the Capitol during Trump’s speech. Here are some of the things that Trump said toward the beginning of his address, allowing plenty of time for protesters moved by his words to arrive at the Capitol and begin the assault:

Joe Biden cannot be allowed to take office because he stole the election through massive, unprecedented voting fraud.

“We won this election, and we won it by a landslide.”

“They rigged an election. They rigged it like they’ve never rigged an election before.”

“Our country has had enough. We will not take it anymore….We will stop the steal.”

“All of us here today do not want to see our election victory stolen by emboldened radical left Democrats, which is what they’re doing, and stolen by the fake news media. That’s what they’ve done and what they’re doing. We will never give up. We will never concede.”

“It’s a disgrace. There’s never been anything like that. You could take third world countries….Their elections are more honest than what we’ve been going through in this country. It’s a disgrace. It’s a disgrace.”

“As you know, the media has constantly asserted the outrageous lie that there was no evidence of widespread fraud….We will not be intimidated into accepting the hoaxes and the lies that we’ve been forced to believe over the past several weeks. We’ve amassed overwhelming evidence about a fake election.”

“Democrats attempted the most brazen and outrageous election theft. And there’s never been anything like this, so pure theft in American history. Everybody knows it.”

“Our election was so corrupt that in the history of this country, we’ve never seen anything like it….No third world countries would even attempt to do what we caught them doing.”

Vice President Mike Pence has the power to stop Biden from taking office by rejecting his electoral votes.

“If Mike Pence does the right thing, we win the election….All Vice President Pence has to do is send it back to the states to recertify, and we become president.”

“Mike Pence is going to have to come through for us. And if he doesn’t, that will be a sad day for our country, because you’re sworn to uphold our Constitution.”

If Pence fails to do “the right thing,” the result will be intolerable.

“We’re going to have somebody in there that should not be in there, and our country will be destroyed. And we’re not going to stand for that.”

“[We’ll be] stuck with a president who lost the election by a lot. And we have to live with that for four more years. We’re just not going to let that happen.”

“You will have a president who lost all of these states, or you will have a president, to put it another way, who was voted on by a bunch of stupid people who lost all of these states. You will have an illegitimate president.”

If we “show strength,” we can stop Biden from taking office.

“It is up to Congress to confront this egregious assault on our democracy. And after this, we’re going to walk down, and I’ll be there with you.”

“We’re going to walk down to the Capitol, and we’re going to cheer on our brave senators and congressmen and women. And we’re probably not going to be cheering so much for some of them. Because you’ll never take back our country with weakness. You have to show strength and you have to be strong. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated….I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard today.”

Although Trump said his supporters should protest “peacefully,” it was predictable that some of them would go further than that, especially after Pence publicly stated that he did not have the authority to do what Trump wanted. (The video shows that Pence, whom Trump slammed on Twitter after the protest turned violent, was a primary target of the rioters’ ire.) Trump sent his followers on a doomed mission to stop an “egregious assault on our democracy,” ostensibly by cheering legislators who challenged Biden’s electoral votes and jeering those who declined to support those challenges. There was never any chance that Congress actually would overturn Biden’s victory, and Trump surely knew that.

“If you don’t fight like hell, you’re not going to have a country anymore,” Trump said about an hour into his speech. By that point, the first wave of rioters was already on its way. But he had delivered essentially the same message over and over again—not just that day but in the two months following the election.

“The president asked people to come and show their support,” Christopher Grider, a Texas winery owner who faces federal charges in connection with the riot, told a Waco TV station that evening. “I feel like it’s the least that we can do.” The Houston Chronicle notes that Grider says “he never planned to be at the Capitol, much less take part in an insurrection.” Grider’s lawyer argues that he got swept up by a “mob mentality” that Trump encouraged: “He would never have anticipated finding himself in the situation, but for the president and the rally and the way everything went down.”

Grider obviously has an interest in deflecting blame for his own actions that day, and it should go without saying that Trump’s rhetoric cannot excuse another person’s criminal acts. But Trump’s speech was grossly irresponsible precisely because of its predictable impact on passionate, impressionable supporters like Grider, and his remarks that day cannot be divorced from his obstinate refusal to accept that he lost the election, which went far beyond exercising his right to challenge the results in court.

“The President of the United States summoned this mob, assembled the mob, and lit the flame of this attack,” Rep. Liz Cheney (R–Wyo.), the third-ranking Republican in the House, said before she joined nine other Republicans in supporting Trump’s impeachment. “Everything that followed was his doing. None of this would have happened without the President. The President could have immediately and forcefully intervened to stop the violence. He did not. There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution.” Sen. Mitch McConnell (R–Ky.), then the Senate majority leader, agreed that “the mob was fed lies” and “provoked by the president.”

According to Trump’s lawyers, by contrast, all he did was exercise his First Amendment right to express “a difference of political opinion…on an issue of voting irregularity.” The question is not whether Trump had a First Amendment right to say whatever he wanted about the election, however outlandish and palpably untrue. It is whether Congress can hold him accountable for exercising that right in such a manifestly reckless way.

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Trump’s Impeachment Lawyers Try To Deconstruct the Link Between What He Said and What His Followers Did

Capitol-riot-1-6-21-Newscom-3

The House members who are prosecuting Donald Trump on the charge that he incited last month’s Capitol riot opened their case yesterday with a dramatic video that interspersed scenes of the violence with the former president’s words that day. It clearly shows that Trump supporters inspired by his oft-repeated fantasy of a stolen presidential election broke down security barriers, attacked police officers, smashed windows and doors, stormed the building, and forced the members of Congress who were about to ratify Joe Biden’s victory to run for their lives instead.

Since the Senate voted yesterday to proceed with the trial, rejecting the argument that it has no authority to try a former president, the task for Trump’s lawyers is to deconstruct the connection between what he said and what his followers did. Judging from their trial memorandum, they will attempt to do that by arguing that Trump never advocated violence, that some of his supporters planned to attack the Capitol even before his inflammatory pre-riot speech, and that he cannot reasonably be held responsible for the behavior of individuals who interpreted his demand that they “fight like hell” to “stop the steal” in a more literal way than he intended.

That strategy would make sense if Trump faced a criminal charge of incitement to riot or a lawsuit seeking compensation for the deaths, injuries, and property damage caused by the attack. But it fundamentally misconstrues the basis of his impeachment, which alleges that he abused his power, violated his oath to uphold the Constitution, neglected his duties as president, and undermined democracy by using extralegal means to overturn the election results. To defend against those charges, it is not enough to argue that Trump could not be held accountable for the riot in a criminal case or civil lawsuit.

“The Federal Bureau of Investigation has confirmed that the breach at the Capitol was planned several days in advance of the rally, and therefore had nothing to do with the President’s speech on January 6th at the Ellipse,” Trump’s lawyers say. The fact that some of Trump’s supporters talked about attacking the Capitol before they arrived in Washington, of course, does not mean that none of the rioters were moved by his fiery rhetoric that day. More to the point, Trump had been persistently promoting his delusion that he actually won the election by a landslide for months, and the protesters came to D.C. at his behest to stop Biden from taking office. He invented the grievance that motivated the rioters, including those who planned ahead as well as those who acted in the heat of the moment.

As Trump urged his followers to “walk down to the Capitol,” the House managers’ video shows, Trump supporters reacted with cries of “Take the Capitol!” While Trump was still speaking, a group of his supporters peeled away from the crowd to begin the march. When they arrived at the Capitol, they started dismantling the security barriers around it, brawling with police officers, and heading up the steps.

Quoting from a Gateway Pundit post, Trump’s lawyers note that it takes about half an hour to walk the 1.6 miles between Ellipse Park, the site of the “Save America” rally, and the Capitol. Trump began speaking just before noon and continued until 1:12 p.m. Yet protesters “had already breached Capitol Grounds a mile away 19 minutes prior to the end of President Trump’s speech.”

That is not exactly an airtight defense, given that video shows protesters heading for the Capitol during Trump’s speech. Here are some of the things that Trump said toward the beginning of his address, allowing plenty of time for protesters moved by his words to arrive at the Capitol and begin the assault:

Joe Biden cannot be allowed to take office because he stole the election through massive, unprecedented voting fraud.

“We won this election, and we won it by a landslide.”

“They rigged an election. They rigged it like they’ve never rigged an election before.”

“Our country has had enough. We will not take it anymore….We will stop the steal.”

“All of us here today do not want to see our election victory stolen by emboldened radical left Democrats, which is what they’re doing, and stolen by the fake news media. That’s what they’ve done and what they’re doing. We will never give up. We will never concede.”

“It’s a disgrace. There’s never been anything like that. You could take third world countries….Their elections are more honest than what we’ve been going through in this country. It’s a disgrace. It’s a disgrace.”

“As you know, the media has constantly asserted the outrageous lie that there was no evidence of widespread fraud….We will not be intimidated into accepting the hoaxes and the lies that we’ve been forced to believe over the past several weeks. We’ve amassed overwhelming evidence about a fake election.”

“Democrats attempted the most brazen and outrageous election theft. And there’s never been anything like this, so pure theft in American history. Everybody knows it.”

“Our election was so corrupt that in the history of this country, we’ve never seen anything like it….No third world countries would even attempt to do what we caught them doing.”

Vice President Mike Pence has the power to stop Biden from taking office by rejecting his electoral votes.

“If Mike Pence does the right thing, we win the election….All Vice President Pence has to do is send it back to the states to recertify, and we become president.”

“Mike Pence is going to have to come through for us. And if he doesn’t, that will be a sad day for our country, because you’re sworn to uphold our Constitution.”

If Pence fails to do “the right thing,” the result will be intolerable.

“We’re going to have somebody in there that should not be in there, and our country will be destroyed. And we’re not going to stand for that.”

“[We’ll be] stuck with a president who lost the election by a lot. And we have to live with that for four more years. We’re just not going to let that happen.”

“You will have a president who lost all of these states, or you will have a president, to put it another way, who was voted on by a bunch of stupid people who lost all of these states. You will have an illegitimate president.”

If we “show strength,” we can stop Biden from taking office.

“It is up to Congress to confront this egregious assault on our democracy. And after this, we’re going to walk down, and I’ll be there with you.”

“We’re going to walk down to the Capitol, and we’re going to cheer on our brave senators and congressmen and women. And we’re probably not going to be cheering so much for some of them. Because you’ll never take back our country with weakness. You have to show strength and you have to be strong. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated….I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard today.”

Although Trump said his supporters should protest “peacefully,” it was predictable that some of them would go further than that, especially after Pence publicly stated that he did not have the authority to do what Trump wanted. (The video shows that Pence, whom Trump slammed on Twitter after the protest turned violent, was a primary target of the rioters’ ire.) Trump sent his followers on a doomed mission to stop an “egregious assault on our democracy,” ostensibly by cheering legislators who challenged Biden’s electoral votes and jeering those who declined to support those challenges. There was never any chance that Congress actually would overturn Biden’s victory, and Trump surely knew that.

“If you don’t fight like hell, you’re not going to have a country anymore,” Trump said about an hour into his speech. By that point, the first wave of rioters was already on its way. But he had delivered essentially the same message over and over again—not just that day but in the two months following the election.

“The president asked people to come and show their support,” Christopher Grider, a Texas winery owner who faces federal charges in connection with the riot, told a Waco TV station that evening. “I feel like it’s the least that we can do.” The Houston Chronicle notes that Grider says “he never planned to be at the Capitol, much less take part in an insurrection.” Grider’s lawyer argues that he got swept up by a “mob mentality” fostered by Trump: “He would never have anticipated finding himself in the situation, but for the president and the rally and the way everything went down.”

Grider obviously has an interest in deflecting blame for his own actions that day, and it should go without saying that Trump’s rhetoric cannot excuse another person’s criminal acts. But Trump’s speech was grossly irresponsible precisely because of its predictable impact on passionate, impressionable supporters like Grider, and his remarks that day cannot be divorced from his obstinate refusal to accept that he lost the election, which went far beyond exercising his right to challenge the results in court.

“The President of the United States summoned this mob, assembled the mob, and lit the flame of this attack,” Rep. Liz Cheney (R–Wyo.), the third-ranking Republican in the House, said before she joined nine other Republicans in supporting Trump’s impeachment. “Everything that followed was his doing. None of this would have happened without the President. The President could have immediately and forcefully intervened to stop the violence. He did not. There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution.” Sen. Mitch McConnell (R–Ky.), then the Senate majority leader, agreed that “the mob was fed lies” and “provoked by the president.”

According to Trump’s lawyers, by contrast, all he did was exercise his First Amendment right to express “a difference of political opinion…on an issue of voting irregularity.” The question is not whether Trump had a First Amendment right to say whatever he wanted about the election, however outlandish and palpably untrue. It is whether Congress can hold him accountable for exercising that right in such a manifestly reckless way.

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Have Kids? Mitt Romney and Joe Biden Want the Government To Pay You Thousands Every Year

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President Joe Biden and Sen. Mitt Romney (R–Utah) are both pitching significant overhauls to the safety net programs for American families by proposing direct monthly child allowances paid to parents.

While the plans differ somewhat in their specifics, both aim to subsidize the costs of raising children in a more direct way than the federal government currently does, a noble goal that would likely boost the economic prospects of poorer parents who may not be able to access the full value of benefits provided via the current tax credit system. But with the country more than $27 trillion in debt, both plans ultimately amount to a promise to hike taxes on the very children that the government would go deeper into debt to subsidize—although Romney’s plan does offset some of the new costs by shuttering existing welfare programs—and both may unintentionally hobble the incentives for poor parents to remain in the workforce.

Biden’s plan, currently included as part of the $1.9 trillion COVID-19 relief bill the House is drawing up, would send parents an annual total of $3,600 per child under age 6 and $3,000 per child aged 6-17. The payments would phase out for single parents earning more than $75,000 annually and for couples who earn more than $150,000. Although it is officially just a one-year program (payments would be allocated beginning in July and based on 2020 income taxes), The New York Times reports that the goal is to eventually make the change permanent.

Romney’s plan offers slightly larger benefits that would extend to a more expansive set of parents, but it would also abolish other welfare programs that Biden’s plan would maintain. Romney would pay parents an annual total of $4,200 for every child under the age of 6 and $3,000 per child aged 6-17, with the payments phasing out for individuals who earn more than $200,000 annually or couples earning more than $400,000. It is intended to be permanent from the start.

If a parent (or parents) qualified for the full payments during all 17 years of a child’s eligibility, he or she would receive a total of $57,600 per child under Biden’s plan and $62,600 under Romney’s.

As with any expansion of the federal welfare state, the first question that should be asked is how much will this cost and who will pay for it. Romney’s plan comes with an estimated price tag of $254 billion annually, but the senator says those costs are fully offset with a series of changes to existing welfare programs. The child allowance would replace the existing child tax credit program and require a significant overhaul of the current earned income tax credit (EITC), which offsets taxes for low-income families. He would also permanently abolish the state and local tax (SALT) deduction, which mostly benefits upper-income residents of states with high taxes. It would also eliminate the Temporary Assistance for Needy Families (TANF) program, which is what most people typically think of as “welfare”—a joint federal-state program that provides direct cash assistance to poor families.

Biden is not proposing any cuts to existing welfare programs as part of his child allowance plan, which would cost an estimated $120 billion annually with the full amount added to the large and growing national debt. (Remember, Biden’s plan is less generous than Romney’s, hence the lower total cost.)

On that front, then, Romney’s plan is clearly preferable—although his promise that the child allowance would be revenue-neutral should be scrutinized by independent analysts like the Congressional Budget Office.

Some progressive policy wonks also argue Romney’s plan is better. “It’s clear that Romney’s proposal, due to its generosity and administrative simplicity, is an improvement on the Biden proposal,” writes Matt Bruenig, founder of the People’s Policy Project, a progressive think tank. He’s on board with some of Romney’s proposed offsets, including abolishing the SALT deduction and the TANF program, which has been beset by waste and abuse for years and fails to deliver much in the way of benefits.

Notably, however, he also advises Democrats to swap out some of the “unsavory” offsets Romney has proposed, effectively saying that Democrats should aim for the higher promised benefits and then try to undercut the means of paying for them. That would add to the staggering levels of debt that America’s future generations will have to deal with—a bill that will come due in the form of higher taxes and lower economic growth.

As long as the benefits are offset with cuts to other welfare programs, a shift to a child allowance system could provide larger, more predictable benefits to needy families without adding to the national debt. That ought to be the goal. If Democrats are unwilling to agree to all the offsets Romney has proposed, he should dial back the promised benefits. There’s ultimately no need to subsidize families earning up to $400,000 annually.

One problem worth considering with both plans is how they would alter the existing incentives for poor parents to work.

To understand that, you first have to understand a little bit about how the current child tax credit program works. Right now, parents can qualify for up to $2,000 in tax credits (up to $1,400 of which is refundable, which means it is paid even if the parent owes no federal taxes) for every child under the age of 17. But there’s a small catch: The individual or couple filing taxes must report at least $2,500 in income to be eligible for the child tax credit. In other words, parents who earn no income cannot claim the benefit.

In some ways, the Romney and Biden plans are best understood as attempts to ensure that even the poorest, non-working parents can collect federal benefits to help offset the cost of raising children. The direct child allowance payments will go to everyone; no need to demonstrate that you earned at least $2,500 to get it.

One obvious consequence of paying people who do not work is that you might give other people an incentive to stop working, warns Scott Winship, director of poverty studies at the American Enterprise Institute. “Child allowances are allowances for behavior that would be expected to hurt their own long-term prospects and, more importantly, the wellbeing of their children,” he writes, though he has also acknowledged that the consequences of that shift are, for now, largely unknown and likely to depend on other aspects of the policy.

Winship also worries that the proposed child allowances—which would be the same in all parts of the country—will seem proportionally larger in poorer places, a corollary to the argument for why a national minimum wage is a bad idea.

Winship also notes that both plans move away from one of the major accomplishments of welfare reforms passed in the 1990s, which were largely predicated on creating incentives to work. That’s been the defining feature of conservative welfare reforms for decades, and abandoning it is likely to create some Republican objections. Already, Sens. Marco Rubio (R–Fla.) and Mike Lee (R–Utah) have called out Romney for “undercutting the responsibility of parents to work to provide for their families.”

Any major shift in how the federal safety net operates is naturally going to have unintended consequences, of course. But the inverse of Winship’s prediction is possible too: The current welfare system rewards work at a low level but can punish those who try to move up the ladder by revoking benefits if they get a raise or find a spouse. A system of direct child allowance payments might encourage some people not to work, but it would also free up others to pursue better jobs without worrying about losing welfare benefits in the process.

The federal government should not be in the business of incentivizing people to have children, either with benefits doled out through the tax code or the welfare system. Nor should it pay people not to work, either by borrowing or by redistributing tax revenue from those who do. At their core, both plans are a form of social engineering that rewards people for choosing to reproduce—even if they cannot afford to raise children—instead of working toward other productive goals that don’t involve offspring.

But if the government is going to do those things, it has a responsibility to taxpayers (current and future) to do so in a fiscally responsible, efficient way. If Romney and Biden can streamline the tangled family safety net programs without adding to the national debt, they should be given a chance.

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