Category: reason

Originalism in the Lower Courts in Sixth Circuit Abortion Case

Today the Sixth Circuit decided Preterm Cleveland v. McCloud. This case upheld Ohio’s law, which prohibits a doctor from performing an abortion, where the doctor knows that the woman is obtaining an abortion because the unborn child has down syndrome. The Sixth Circuit fractured quite badly. But a majority of the Court agreed that the Ohio law was constitutional under Supreme Court precedent.

Here, I’d like to highlight the concurring opinion from Judge John Bush (beginning on p. 40). He articulates how lower court originalist judges should approach cases of first impression.

First, Judge Bush explains that precedent must be followed “faithfully.” Here he cites an opinion from Judge Pryor:

With these principles in mind, how do we balance our role as lower court judges with our duty to apply the Constitution’s original meaning? First, of course, if a holding of the Supreme Court directly applies to a case, we follow it. Rodriguez, 490 U.S. at 484. In so doing, we cannot apply a “cramped reading” of the precedent that would “functionally overrule” it. Thompson v. Marietta Educ. Ass’n, 972 F.3d 809, 814 (6th Cir. 2020). Instead, we must apply precedent “neither narrowly nor liberally—only faithfully.” United States v. Johnson, 921 F.3d 991, 1001 (11th Cir. 2019) (en banc).

Second, where there is no controlling opinion, courts must turn to the original meaning of the Constitution. Here Judge bush cites opinions from Judges Bumatay and Ho, as well as yours truly:

When no holding of the Supreme Court can decide a question, as in the case before us, our duty to “interpret the Constitution in light of its text, structure, and original understanding” takes precedence. See NLRB v. Noel Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring in the judgment); see also Pierre Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1274 (2006) (“The Supreme Court’s dicta are not law. The issues so addressed remain unadjudicated. When an inferior court has such an issue before it, it may not treat the Supreme Court’s dictum as dispositive.” (emphasis added)). And if it is dubious whether a precedent “is correct as an original matter,” we should “tread carefully before extending” it. Garza v. Idaho, 139 S. Ct. 738, 756 (2019) (Thomas, J., dissenting); see also Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 N.Y.U. J. L. & Liberty 44, 51 (2019) (“[A] judge should only extend a Supreme Court precedent if the original meaning of the Constitution can support that extension.”). In such a case, “the rule of law may dictate confining the precedent, rather than extending it further.” NLRB v. Int’l Ass’n of Bridge Iron Workers, Local 229, 974 F.3d 1106, 1117 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc); see also Texas v. Rettig, No. 18-10545, slip op. at 18 (5th Cir. Apr. 9, 2021) (Ho, J., dissenting from denial of rehearing en banc) (“[I]f we are forced to choose between upholding the Constitution and extending precedent in direct conflict with the Constitution, the choice should be clear.”). 

Third, Judge Bush discussed the original public meaning of the Fourteenth Amendment:

In light of the Supreme Court’s silence on that issue, we must look to the Constitution’s original meaning. And it is clear that there is no bar in the text of the Fourteenth Amendment, as it was understood at its ratification, to the legislative protection of unborn life with Down syndrome. Applied here, the central question for original meaning should be, “[w]hat did the average Joe (or Josephine)” from the ratification generation “understand the words” of the Fourteenth Amendment to mean? Turner v. United States, 885 F.3d 949, 957 (6th Cir. 2018) (Bush, J., concurring dubitante), cert. denied, 139 S. Ct. 2740 (2019). No such average person would have understood the operative phrase—”nor shall any State deprive any person of life, liberty, or property, without due process of law,” U.S. Const. amend. XIV—to create a right to abort a fetus based on its genetic characteristics. New technology that increases knowledge about fetal genetics does not alter the Fourteenth Amendment’s original meaning; it merely creates new challenges for legislation in this area. 

Judge Bush cites the writings of Randy Barnett, Lawrence Solum, Michael McConnell, Nathan Chapman, Will Baude, Evan Bernick, Ilan Wurman, John Harrison, and many other prominent originalists. I encourage everyone to carefully read his opinion.

Fourth, I appreciate that Judge Bush discussed abortion laws from Ohio in the 1860s:

Specific evidence in that regard comes from the very state where this case arose. In February of 1867, a committee of the same Ohio state senators who had voted to ratify the Fourteenth Amendment just one month earlier issued a state Senate report advocating for amendments that would strengthen Ohio’s abortion prohibition in light of an “alarming and increasing frequency” of abortions. 1867 Ohio Senate Journal App’x 233. The report proclaimed that “the willful killing of a human being, at any stage of its existence, is murder.” Id. at 234. And that view was by no means an outlier: there is evidence from many states that the ratification generation did not understand the Fourteenth Amendment to bar abortion restrictions. See, e.g., Casey, 505 U.S. at 952–53 (Rehnquist, C.J., concurring in part and dissenting in part) (demonstrating that a clear majority of states restricted abortion in the Fourteenth Amendment ratification generation). That evidence reinforces the clear showing that the Fourteenth Amendment’s original meaning allows a state to prohibit eugenic abortions.

Fifth, Judge Bush concludes that he will not “extend” a Supreme Court precedent that is inconsistent with original meaning:

That history also raises serious questions as to the correctness of the Supreme Court’s abortion jurisprudence more generally as a matter of the Constitution’s original meaning. See, e.g., Gonzales, 550 U.S. at 169 (Thomas, J., concurring); Stenberg, 530 U.S. at 956 (Scalia, J., dissenting); Casey, 505 U.S. at 952–53 (1992) (Rehnquist, J., concurring in part and dissenting in part). As lower court judges, we should be reluctant to extend that jurisprudence further in the absence of a Supreme Court holding that directs us to do so. 

I will continue to highlight originalism in the lower courts, where judges decline to extend non-originalist precedents. This trend will eventually trickle up to the Supreme Court.

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Originalism in the Lower Courts in Sixth Circuit Abortion Case

Today the Sixth Circuit decided Preterm Cleveland v. McCloud. This case upheld Ohio’s law, which prohibits a doctor from performing an abortion, where the doctor knows that the woman is obtaining an abortion because the unborn child has down syndrome. The Sixth Circuit fractured quite badly. But a majority of the Court agreed that the Ohio law was constitutional under Supreme Court precedent.

Here, I’d like to highlight the concurring opinion from Judge John Bush (beginning on p. 40). He articulates how lower court originalist judges should approach cases of first impression.

First, Judge Bush explains that precedent must be followed “faithfully.” Here he cites an opinion from Judge Pryor:

With these principles in mind, how do we balance our role as lower court judges with our duty to apply the Constitution’s original meaning? First, of course, if a holding of the Supreme Court directly applies to a case, we follow it. Rodriguez, 490 U.S. at 484. In so doing, we cannot apply a “cramped reading” of the precedent that would “functionally overrule” it. Thompson v. Marietta Educ. Ass’n, 972 F.3d 809, 814 (6th Cir. 2020). Instead, we must apply precedent “neither narrowly nor liberally—only faithfully.” United States v. Johnson, 921 F.3d 991, 1001 (11th Cir. 2019) (en banc).

Second, where there is no controlling opinion, courts must turn to the original meaning of the Constitution. Here Judge bush cites opinions from Judges Bumatay and Ho, as well as yours truly:

When no holding of the Supreme Court can decide a question, as in the case before us, our duty to “interpret the Constitution in light of its text, structure, and original understanding” takes precedence. See NLRB v. Noel Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring in the judgment); see also Pierre Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1274 (2006) (“The Supreme Court’s dicta are not law. The issues so addressed remain unadjudicated. When an inferior court has such an issue before it, it may not treat the Supreme Court’s dictum as dispositive.” (emphasis added)). And if it is dubious whether a precedent “is correct as an original matter,” we should “tread carefully before extending” it. Garza v. Idaho, 139 S. Ct. 738, 756 (2019) (Thomas, J., dissenting); see also Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 N.Y.U. J. L. & Liberty 44, 51 (2019) (“[A] judge should only extend a Supreme Court precedent if the original meaning of the Constitution can support that extension.”). In such a case, “the rule of law may dictate confining the precedent, rather than extending it further.” NLRB v. Int’l Ass’n of Bridge Iron Workers, Local 229, 974 F.3d 1106, 1117 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc); see also Texas v. Rettig, No. 18-10545, slip op. at 18 (5th Cir. Apr. 9, 2021) (Ho, J., dissenting from denial of rehearing en banc) (“[I]f we are forced to choose between upholding the Constitution and extending precedent in direct conflict with the Constitution, the choice should be clear.”). 

Third, Judge Bush discussed the original public meaning of the Fourteenth Amendment:

In light of the Supreme Court’s silence on that issue, we must look to the Constitution’s original meaning. And it is clear that there is no bar in the text of the Fourteenth Amendment, as it was understood at its ratification, to the legislative protection of unborn life with Down syndrome. Applied here, the central question for original meaning should be, “[w]hat did the average Joe (or Josephine)” from the ratification generation “understand the words” of the Fourteenth Amendment to mean? Turner v. United States, 885 F.3d 949, 957 (6th Cir. 2018) (Bush, J., concurring dubitante), cert. denied, 139 S. Ct. 2740 (2019). No such average person would have understood the operative phrase—”nor shall any State deprive any person of life, liberty, or property, without due process of law,” U.S. Const. amend. XIV—to create a right to abort a fetus based on its genetic characteristics. New technology that increases knowledge about fetal genetics does not alter the Fourteenth Amendment’s original meaning; it merely creates new challenges for legislation in this area. 

Judge Bush cites the writings of Randy Barnett, Lawrence Solum, Michael McConnell, Nathan Chapman, Will Baude, Evan Bernick, Ilan Wurman, John Harrison, and many other prominent originalists. I encourage everyone to carefully read his opinion.

Fourth, I appreciate that Judge Bush discussed abortion laws from Ohio in the 1860s:

Specific evidence in that regard comes from the very state where this case arose. In February of 1867, a committee of the same Ohio state senators who had voted to ratify the Fourteenth Amendment just one month earlier issued a state Senate report advocating for amendments that would strengthen Ohio’s abortion prohibition in light of an “alarming and increasing frequency” of abortions. 1867 Ohio Senate Journal App’x 233. The report proclaimed that “the willful killing of a human being, at any stage of its existence, is murder.” Id. at 234. And that view was by no means an outlier: there is evidence from many states that the ratification generation did not understand the Fourteenth Amendment to bar abortion restrictions. See, e.g., Casey, 505 U.S. at 952–53 (Rehnquist, C.J., concurring in part and dissenting in part) (demonstrating that a clear majority of states restricted abortion in the Fourteenth Amendment ratification generation). That evidence reinforces the clear showing that the Fourteenth Amendment’s original meaning allows a state to prohibit eugenic abortions.

Fifth, Judge Bush concludes that he will not “extend” a Supreme Court precedent that is inconsistent with original meaning:

That history also raises serious questions as to the correctness of the Supreme Court’s abortion jurisprudence more generally as a matter of the Constitution’s original meaning. See, e.g., Gonzales, 550 U.S. at 169 (Thomas, J., concurring); Stenberg, 530 U.S. at 956 (Scalia, J., dissenting); Casey, 505 U.S. at 952–53 (1992) (Rehnquist, J., concurring in part and dissenting in part). As lower court judges, we should be reluctant to extend that jurisprudence further in the absence of a Supreme Court holding that directs us to do so. 

I will continue to highlight originalism in the lower courts, where judges decline to extend non-originalist precedents. This trend will eventually trickle up to the Supreme Court.

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Revisiting Governor Cuomo’s Hostility Towards Orthodox Jews In Light of His “Fucking Tree Houses” Comment

Today, the New York Times published a lengthy profile of New York Governor Andrew Cuomo. One passage offers an unvarnished view of Cuomo’s animus towards Orthodox Jews.

[Cuomo] could also bridle at the indignity of voter courtship, growing especially irritated about an event celebrating Sukkot, the Jewish harvest holiday when the faithful gather outdoors beneath temporary shelters of branches and greenery. “These people and their fucking tree houses,” Cuomo vented to his team, according to a person who witnessed it and another who was briefed on his comments at the time. (The spokesman denied both incidents, adding: “His two sisters married Jewish men, and he has the highest respect for Jewish traditions.”)

I have five general reactions to this passage. First, I am generally skeptical of anonymous press accounts of Republican politicians. But I take far more seriously negative coverage of Democrats in an institution like the Times. The editors would not slip up on a quote like this. Moreover, the federal courts routinely cited anonymous press accounts about President Trump. Remember the “shithole countries” comment? Under TrumpLaw (which may have expired on January 20), this statement would be fair game to understand Cuomo’s animus. At least for purposes of this post, I will assume the comment is accurate.

Second, a brief background of the holiday. Sukkot, also known as the Feast of  Tabernacles, is celebrated every fall to honor the harvest. During this week-long holiday, Jews eat all of their meals in a tent-like structure, known as a Sukkah. Often, branches are placed over the roofs of these structures. Hence, the “fucking tree houses” comment. Here, Cuomo is mocking and ridiculing one of the most lovely traditions the Jewish people have.

Third, when Cuomo says “these people,” he was almost certainly referring to Orthodox Jews. Orthodox Jews will eat all of their meals in the Sukkah for the entire week. They build Sukkahs in their backyards. In Brooklyn, where space is sparce, Sukkahs are built on balconies. One must be able to see the stars in the Sukkah, so there needs to be a clear line of sight to the sky. In the fall, it can get quite cold in New York. But people persevere. In my experiences, non-Orthodox Jews may build a sukkah near the temple for ceremonial purposes, but they do not actually eat a meal outdoors–especially in the cold. (That was the experience in my reform temple growing up. Correct me if I’m wrong.) I suspect Cuomo was invited to eat in an Orthodox Sukkah in the cold weather, and objected.

Fourth, let’s just switch the facts for a moment. What would happen if Cuomo referred to a group of African Americans as “these people,” and objected to their ceremony in a “fucking tree house.” Does anyone think he would still be in office?

Fifth, the spokesman’s response is all too typical. “His two sisters married Jewish men, and he has the highest respect for Jewish traditions.” This is the anti-Semitic form of “I have lots of Black friends!” This comment proves nothing. One can have a sister who marries a Jew and still have hostility towards Jews. Moreover, both of Cuomo’s sisters married non-Orthodox men, who likely do not eat in “fucking tree houses.”

The Jewish people are not monolithic. As the old saying goes, “Two Jews, Three Opinions.” Today, the divide between Orthodox and non-Orthodox Jews is quite large. I do not think Cuomo has animus towards non-Orthodox Jews. This group votes reliably Democratic, and shares the general values of secular society. Rather, I think Cuomo has animus towards Orthodox Jews. This group votes reliably conservative, and has habits and rituals that clash with secular orthodoxies. Most recently, they were unable to attend worship services on Zoom. Cuomo has long viewed Orthodox Jews in a transactional fashion: a simple voting block that can be negotiated with, the same way as a Union bargaining unit. But now we know what he really thinks about “these people” in “fucking tree houses.”

Cuomo’s “fucking tree people” comment sheds more light on his infamous October 8 press conference. The Second Circuit helpfully summarized his remarks.

Before issuing the Order, the Governor made public statements indicating that the restrictions were motivated in part by concerns about religious gatherings. For example, he noted that the source of the first coronavirus hot spot in New York “was an Orthodox Jewish man who went to a temple” and observed that “Orthodox Jewish gatherings often are very, very large and we’ve seen what one person can do in a group.” The Governor then said that he would be meeting with members of the “ultra-Orthodox [Jewish] community,” and if they would “not agree to enforce the rules, then we’ll close the institutions down.” One day later, he issued the Order. Three days after issuing the Order, the Governor explained that it addresses “a predominantly ultra-orthodox cluster.” Five days later, he said the State was “having issues in the Orthodox Jewish community in New York, where because of their religious practices, . . . we’re seeing a spread.” He said that state-level enforcement was necessary because the “ultra-Orthodox communities . . . are also very politically powerful.

During the Governor’s presentation, he included a slide of “super spreader” events. He included a photograph of Jews wearing black hats in a mass gathering. Cuomo said the photos were “from the past couple weeks.”

But the photos used were not recent. Not even close. One of the photos was from the 2006 funeral of Hassidic rabbi Moshe Teitelbaum. And the photo wasn’t even from New York City. It was taken in the Orange County village of Kiryas Joel, the location of a famous Supreme Court case concerning the Free Exercise Clause. The Governor’s staff simply found a clip art of Jews congregating. The Governor’s spokesperson blamed a “staff error.”

Regrettably, Governor Cuomo played on old, deeply rooted, and painful anti-Semitic tropes: that Jews spread diseases. Throughout the ages, Jewish communities were scapegoated as super-spreaders of “Jewish” diseases, such as the bubonic plague, tuberculosis, and typhus. This stereotype had led to a rash of anti-semitic attacks during a 2019 measles outbreak in New York. Cuomo could also be understood as suggesting that Jews are controlled by their rabbis, and that Jews are outsiders that should be blamed for societal problems. These tropes are pernicious, and harken back to painful times for the Jewish people.

On October 8, I wrote a post titled “Understanding Governor Cuomo’s Hostility Towards Jews.” I explained that Cuomo’s press conference demonstrated hostility towards Orthodox Jewish people. My post was well received in the Orthodox community. I received many emails from people I did not know, who said I articulated how the Orthodox community viewed the then-unstoppable Governor. The reaction from non-Orthodox Jews was very different. They wrote that I did not understand anti-semitism, that Cuomo was a dear friend of the Jews, and that Orthodox Jewish people deserved to be singled out for their failure to abide by COVID protocols.

The “fucking tree house” comment should give my critics some pause. Cuomo is a friend of some Jews, but not all Jews. For what’s worth, the Anti-Defamation League awarded Cuomo the highest honor in June 2020. Yet, As of the close of business, neither ADL nor its President has said a word about Como’s remarks. I will have much more to say about ADL and anti-semitism in due course.

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Revisiting Governor Cuomo’s Hostility Towards Orthodox Jews In Light of His “Fucking Tree Houses” Comment

Today, the New York Times published a lengthy profile of New York Governor Andrew Cuomo. One passage offers an unvarnished view of Cuomo’s animus towards Orthodox Jews.

[Cuomo] could also bridle at the indignity of voter courtship, growing especially irritated about an event celebrating Sukkot, the Jewish harvest holiday when the faithful gather outdoors beneath temporary shelters of branches and greenery. “These people and their fucking tree houses,” Cuomo vented to his team, according to a person who witnessed it and another who was briefed on his comments at the time. (The spokesman denied both incidents, adding: “His two sisters married Jewish men, and he has the highest respect for Jewish traditions.”)

I have five general reactions to this passage. First, I am generally skeptical of anonymous press accounts of Republican politicians. But I take far more seriously negative coverage of Democrats in an institution like the Times. The editors would not slip up on a quote like this. Moreover, the federal courts routinely cited anonymous press accounts about President Trump. Remember the “shithole countries” comment? Under TrumpLaw (which may have expired on January 20), this statement would be fair game to understand Cuomo’s animus. At least for purposes of this post, I will assume the comment is accurate.

Second, a brief background of the holiday. Sukkot, also known as the Feast of  Tabernacles, is celebrated every fall to honor the harvest. During this week-long holiday, Jews eat all of their meals in a tent-like structure, known as a Sukkah. Often, branches are placed over the roofs of these structures. Hence, the “fucking tree houses” comment. Here, Cuomo is mocking and ridiculing one of the most lovely traditions the Jewish people have.

Third, when Cuomo says “these people,” he was almost certainly referring to Orthodox Jews. Orthodox Jews will eat all of their meals in the Sukkah for the entire week. They build Sukkahs in their backyards. In Brooklyn, where space is sparce, Sukkahs are built on balconies. One must be able to see the stars in the Sukkah, so there needs to be a clear line of sight to the sky. In the fall, it can get quite cold in New York. But people persevere. In my experiences, non-Orthodox Jews may build a sukkah near the temple for ceremonial purposes, but they do not actually eat a meal outdoors–especially in the cold. (That was the experience in my reform temple growing up. Correct me if I’m wrong.) I suspect Cuomo was invited to eat in an Orthodox Sukkah in the cold weather, and objected.

Fourth, let’s just switch the facts for a moment. What would happen if Cuomo referred to a group of African Americans as “these people,” and objected to their ceremony in a “fucking tree house.” Does anyone think he would still be in office?

Fifth, the spokesman’s response is all too typical. “His two sisters married Jewish men, and he has the highest respect for Jewish traditions.” This is the anti-Semitic form of “I have lots of Black friends!” This comment proves nothing. One can have a sister who marries a Jew and still have hostility towards Jews. Moreover, both of Cuomo’s sisters married non-Orthodox men, who likely do not eat in “fucking tree houses.”

The Jewish people are not monolithic. As the old saying goes, “Two Jews, Three Opinions.” Today, the divide between Orthodox and non-Orthodox Jews is quite large. I do not think Cuomo has animus towards non-Orthodox Jews. This group votes reliably Democratic, and shares the general values of secular society. Rather, I think Cuomo has animus towards Orthodox Jews. This group votes reliably conservative, and has habits and rituals that clash with secular orthodoxies. Most recently, they were unable to attend worship services on Zoom. Cuomo has long viewed Orthodox Jews in a transactional fashion: a simple voting block that can be negotiated with, the same way as a Union bargaining unit. But now we know what he really thinks about “these people” in “fucking tree houses.”

Cuomo’s “fucking tree people” comment sheds more light on his infamous October 8 press conference. The Second Circuit helpfully summarized his remarks.

Before issuing the Order, the Governor made public statements indicating that the restrictions were motivated in part by concerns about religious gatherings. For example, he noted that the source of the first coronavirus hot spot in New York “was an Orthodox Jewish man who went to a temple” and observed that “Orthodox Jewish gatherings often are very, very large and we’ve seen what one person can do in a group.” The Governor then said that he would be meeting with members of the “ultra-Orthodox [Jewish] community,” and if they would “not agree to enforce the rules, then we’ll close the institutions down.” One day later, he issued the Order. Three days after issuing the Order, the Governor explained that it addresses “a predominantly ultra-orthodox cluster.” Five days later, he said the State was “having issues in the Orthodox Jewish community in New York, where because of their religious practices, . . . we’re seeing a spread.” He said that state-level enforcement was necessary because the “ultra-Orthodox communities . . . are also very politically powerful.

During the Governor’s presentation, he included a slide of “super spreader” events. He included a photograph of Jews wearing black hats in a mass gathering. Cuomo said the photos were “from the past couple weeks.”

But the photos used were not recent. Not even close. One of the photos was from the 2006 funeral of Hassidic rabbi Moshe Teitelbaum. And the photo wasn’t even from New York City. It was taken in the Orange County village of Kiryas Joel, the location of a famous Supreme Court case concerning the Free Exercise Clause. The Governor’s staff simply found a clip art of Jews congregating. The Governor’s spokesperson blamed a “staff error.”

Regrettably, Governor Cuomo played on old, deeply rooted, and painful anti-Semitic tropes: that Jews spread diseases. Throughout the ages, Jewish communities were scapegoated as super-spreaders of “Jewish” diseases, such as the bubonic plague, tuberculosis, and typhus. This stereotype had led to a rash of anti-semitic attacks during a 2019 measles outbreak in New York. Cuomo could also be understood as suggesting that Jews are controlled by their rabbis, and that Jews are outsiders that should be blamed for societal problems. These tropes are pernicious, and harken back to painful times for the Jewish people.

On October 8, I wrote a post titled “Understanding Governor Cuomo’s Hostility Towards Jews.” I explained that Cuomo’s press conference demonstrated hostility towards Orthodox Jewish people. My post was well received in the Orthodox community. I received many emails from people I did not know, who said I articulated how the Orthodox community viewed the then-unstoppable Governor. The reaction from non-Orthodox Jews was very different. They wrote that I did not understand anti-semitism, that Cuomo was a dear friend of the Jews, and that Orthodox Jewish people deserved to be singled out for their failure to abide by COVID protocols.

The “fucking tree house” comment should give my critics some pause. Cuomo is a friend of some Jews, but not all Jews. For what’s worth, the Anti-Defamation League awarded Cuomo the highest honor in June 2020. Yet, As of the close of business, neither ADL nor its President has said a word about Como’s remarks. I will have much more to say about ADL and anti-semitism in due course.

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U.S. Troops Were Supposed To Leave Afghanistan on May 1. Biden Will Keep Them There Until September.


xnaphotos303072

President Joe Biden will force some 3,000 American troops to spend an additional four months risking their lives in Afghanistan seemingly in the name of symbolism.

The White House now plans to withdraw the last American troops from Afghanistan on September 11 of this year, The New York Times and other outlets reported Tuesday, rather than holding to the May 1 deadline established by the Trump administration last year. That May 1 deadline was the result of peace negotiations with the Taliban, and the Times noted that the new plan risks “an increase in violence—which the Taliban have threatened if the United States kept troops beyond May 1.”

Ah, but a little more violence is nothing compared to the allure of a symbolic withdrawal on the 20th anniversary of the terrorist attacks that drew America into its longest-ever war in the first place, right?

Absent from the White House’s explanation for the change in plans—delivered to the media via unnamed officials, naturally—is any discussion of what will be accomplished by keeping American troops on the ground in Afghanistan for an extra 134 days after May 1. What critical national security goals has the military been unable to achieve in the past 19-and-a-half years that will suddenly be within reach this summer? There are ongoing worries that the barely functional government in Kabul will collapse as soon as the American military is gone, but is there any reason to believe that that is any less likely to happen in September than it is in May? If so, White House and Pentagon officials should articulate those reasons.

If not, this looks like a foolish strategic decision that invites conflict. After all, what would American military officials say and do if the Taliban suddenly reneged on its side of the Doha Agreement for a purely figurative goal.

About the only good thing to be said about Tuesday’s announcement is that it does contain a certain end date for the withdrawal of American troops. Maintaining a commitment to ending the war and bringing the troops home should be of the utmost importance.

Unfortunately, the delay is already creating openings for advocates of neverending war. John Bolton, the former George W. Bush and Donald Trump advisor and physical embodiment of the reckless interventionism that has defined the past two decades of U.S. foreign policy, responded to Tuesday’s announcement by tweeting that “a full unconditional retreat of U.S. forces from Afghanistan is reckless.” Leaving Afghanistan means “the Afghan government will likely fall, & terrorists will enjoy a resurgence threatening America,” Bolton wrote. 

A four-month delay in withdrawing U.S. forces means four more months for the Biden administration to be swayed into staying even longer.

“Biden should provide the Taliban and critics at home who could try to be spoilers with clear signal that we are definitely on the way out—and that no new conditions are being applied,” wrote Will Ruger, the vice president for policy at the Charles Koch Institute who had been nominated by Trump to be the next ambassador to Afghanistan (Ruger was never confirmed and his nomination was returned by the Senate in January). “It would be an unnecessary shame for even one more American to die in this conflict.”

More than 2,300 Americans have died in Afghanistan since the war began, and the Biden administration seems willing to add a few more lives to that grim tally just so we can all enjoy the poetic symmetry of historical occasions. I’m sure that will bring comfort to the families and friends of any American soldiers that might be killed in June, July, or August.

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U.S. Troops Were Supposed To Leave Afghanistan on May 1. Biden Will Keep Them There Until September.


xnaphotos303072

President Joe Biden will force some 3,000 American troops to spend an additional four months risking their lives in Afghanistan seemingly in the name of symbolism.

The White House now plans to withdraw the last American troops from Afghanistan on September 11 of this year, The New York Times and other outlets reported Tuesday, rather than holding to the May 1 deadline established by the Trump administration last year. That May 1 deadline was the result of peace negotiations with the Taliban, and the Times noted that the new plan risks “an increase in violence—which the Taliban have threatened if the United States kept troops beyond May 1.”

Ah, but a little more violence is nothing compared to the allure of a symbolic withdrawal on the 20th anniversary of the terrorist attacks that drew America into its longest-ever war in the first place, right?

Absent from the White House’s explanation for the change in plans—delivered to the media via unnamed officials, naturally—is any discussion of what will be accomplished by keeping American troops on the ground in Afghanistan for an extra 134 days after May 1. What critical national security goals has the military been unable to achieve in the past 19-and-a-half years that will suddenly be within reach this summer? There are ongoing worries that the barely functional government in Kabul will collapse as soon as the American military is gone, but is there any reason to believe that that is any less likely to happen in September than it is in May? If so, White House and Pentagon officials should articulate those reasons.

If not, this looks like a foolish strategic decision that invites conflict. After all, what would American military officials say and do if the Taliban suddenly reneged on its side of the Doha Agreement for a purely figurative goal.

About the only good thing to be said about Tuesday’s announcement is that it does contain a certain end date for the withdrawal of American troops. Maintaining a commitment to ending the war and bringing the troops home should be of the utmost importance.

Unfortunately, the delay is already creating openings for advocates of neverending war. John Bolton, the former George W. Bush and Donald Trump advisor and physical embodiment of the reckless interventionism that has defined the past two decades of U.S. foreign policy, responded to Tuesday’s announcement by tweeting that “a full unconditional retreat of U.S. forces from Afghanistan is reckless.” Leaving Afghanistan means “the Afghan government will likely fall, & terrorists will enjoy a resurgence threatening America,” Bolton wrote. 

A four-month delay in withdrawing U.S. forces means four more months for the Biden administration to be swayed into staying even longer.

“Biden should provide the Taliban and critics at home who could try to be spoilers with clear signal that we are definitely on the way out—and that no new conditions are being applied,” wrote Will Ruger, the vice president for policy at the Charles Koch Institute who had been nominated by Trump to be the next ambassador to Afghanistan (Ruger was never confirmed and his nomination was returned by the Senate in January). “It would be an unnecessary shame for even one more American to die in this conflict.”

More than 2,300 Americans have died in Afghanistan since the war began, and the Biden administration seems willing to add a few more lives to that grim tally just so we can all enjoy the poetic symmetry of historical occasions. I’m sure that will bring comfort to the families and friends of any American soldiers that might be killed in June, July, or August.

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The Prosecution Presented Compelling Evidence That Derek Chauvin Killed George Floyd by Using Excessive Force


Jonathan-Rich-testifying-4-12-21-Newscom

Closing out its presentation of witnesses in Derek Chauvin’s murder trial yesterday, the prosecution underlined two essential elements of its case: that the former Minneapolis police officer’s actions caused George Floyd’s death last May and that his use of force was not justified in the circumstances. The defense, which began calling witnesses today, will try to cast doubt on both of those claims. Defense attorney Eric Nelson can win an acquittal if he persuades the jurors that prosecutors have failed to prove at least one of those propositions beyond a reasonable doubt.

Chicago cardiologist Jonathan Rich yesterday agreed with other medical witnesses that Floyd “died from a cardiopulmonary arrest…caused by low oxygen levels.” He also agreed that Floyd could not get enough oxygen because his prolonged prone restraint, during which Chauvin pinned him facedown to the pavement for nine and a half minutes, made it difficult to breathe. “Because of the position that he was subjected to,” he said, Floyd’s heart “did not have enough oxygen.”

Like other prosecution witnesses, Rich said two theories the defense has floated are not supported by the evidence. “I can state with a high degree of medical certainty” that Floyd “did not die from a primary cardiac event and did not die from a drug overdose,” he said.

Rich added that the three officers who were holding Floyd down—Chauvin, J. Alexander Kueng, and Thomas Lane—missed several opportunities to save his life. When one of the cops remarked that Floyd seemed to be passing out, Rich said, “that would have been an opportunity to quickly relieve him from that position of not getting enough oxygen.” When Lane suggested that Floyd should be turned from his stomach to his side, Chauvin said, “Leave him.” And when Kueng reported that Floyd had no detectable pulse, Rich said, the officers should have immediately begun CPR. “I believe that Mr. George Floyd’s death was absolutely preventable,” he said.

Hennepin County Chief Medical Examiner Andrew Baker, who testified on Friday, agrees that Floyd suffered “cardiopulmonary arrest” as a result of “law enforcement subdual, restraint, and neck compression.” In Baker’s view, the use of force against Floyd fatally interacted with his “very severe underlying heart disease.” But he did not rule out that breathing difficulty may have contributed to Floyd’s death, saying, “I would defer to a pulmonologist.”

Chicago pulmonologist Martin Tobin, who testified last Thursday, concluded that “Floyd died from a low level of oxygen” caused by obstructed breathing, which ultimately “caused his heart to stop.” Tobin said even a perfectly healthy person would have died in these circumstances.

Nelson, Chauvin’s lawyer, argues that Floyd “died of a cardiac arrhythmia that occurred as a result of hypertension, his coronary disease, the ingestion of methamphetamine and fentanyl, and the adrenaline flowing through his body, all of which acted to further compromise an already compromised heart.” But even that gloss does not let Chauvin off the hook, since the stress caused by his use of force plausibly contributed to “the adrenaline flowing through [Floyd’s] body” and the ensuing “cardiac arrhythmia.”

University of South Carolina law professor Seth Stoughton, a former police officer, yesterday agreed with other use-of-force experts that Floyd’s prolonged prone restraint was not objectively reasonable. “No reasonable officer would have believed that that was an appropriate, acceptable, or reasonable use of force,” he said.

Floyd resisted Kueng and Lane when they tried to place him in their squad car after arresting him for using a counterfeit $20 bill to buy cigarettes. He said he was claustrophobic, complained that he could not breathe, and asked to ride in the front seat. But once Kueng and Lane pulled him out of the car, he stopped struggling and thanked them, at which point the three officers tackled Floyd, who was already handcuffed, and pinned him to the ground.

Judging from the video record of the encounter, Stoughton said, Floyd “does not appear to have the intention to assault or attack the officers.” He said the use of force was even more manifestly unreasonable after Floyd became unresponsive. “Somebody who does not have a pulse does not present a threat in any way,” he noted.

So far Nelson’s argument that Chauvin’s use of force was appropriate has been based mainly on Floyd’s prior struggle with Kueng and Lane, which does not show that Floyd posed a threat after he was out of the squad car, and the suggestion that Floyd may have continued to resist in ways that are not visible in the videos. Nelson also has repeatedly argued that Chauvin and his colleagues were distracted by the bystanders who criticized the way the cops were treating Floyd.

Like Los Angeles Police Department Sgt. Jody Stiger, another use-of-force expert, Stoughton questioned the notion that the bystanders posed a threat to the officers. He noted that the cops yelled responses to their criticism, which suggests they were not worried about possible violence. Furthermore, the officers were plainly aware of Floyd’s complaints that he could not breathe, which they repeatedly dismissed in exchanges with him and the bystanders, and they clearly noticed that Floyd had stopped moving and talking, which is what prompted Kueng to check his pulse. In any event, as Stiger noted, the behavior of bystanders cannot legally justify the use of force against Floyd if it was otherwise excessive.

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The Prosecution Presented Compelling Evidence That Derek Chauvin Killed George Floyd by Using Excessive Force


Jonathan-Rich-testifying-4-12-21-Newscom

Closing out its presentation of witnesses in Derek Chauvin’s murder trial yesterday, the prosecution underlined two essential elements of its case: that the former Minneapolis police officer’s actions caused George Floyd’s death last May and that his use of force was not justified in the circumstances. The defense, which began calling witnesses today, will try to cast doubt on both of those claims. Defense attorney Eric Nelson can win an acquittal if he persuades the jurors that prosecutors have failed to prove at least one of those propositions beyond a reasonable doubt.

Chicago cardiologist Jonathan Rich yesterday agreed with other medical witnesses that Floyd “died from a cardiopulmonary arrest…caused by low oxygen levels.” He also agreed that Floyd could not get enough oxygen because his prolonged prone restraint, during which Chauvin pinned him facedown to the pavement for nine and a half minutes, made it difficult to breathe. “Because of the position that he was subjected to,” he said, Floyd’s heart “did not have enough oxygen.”

Like other prosecution witnesses, Rich said two theories the defense has floated are not supported by the evidence. “I can state with a high degree of medical certainty” that Floyd “did not die from a primary cardiac event and did not die from a drug overdose,” he said.

Rich added that the three officers who were holding Floyd down—Chauvin, J. Alexander Kueng, and Thomas Lane—missed several opportunities to save his life. When one of the cops remarked that Floyd seemed to be passing out, Rich said, “that would have been an opportunity to quickly relieve him from that position of not getting enough oxygen.” When Lane suggested that Floyd should be turned from his stomach to his side, Chauvin said, “Leave him.” And when Kueng reported that Floyd had no detectable pulse, Rich said, the officers should have immediately begun CPR. “I believe that Mr. George Floyd’s death was absolutely preventable,” he said.

Hennepin County Chief Medical Examiner Andrew Baker, who testified on Friday, agrees that Floyd suffered “cardiopulmonary arrest” as a result of “law enforcement subdual, restraint, and neck compression.” In Baker’s view, the use of force against Floyd fatally interacted with his “very severe underlying heart disease.” But he did not rule out that breathing difficulty may have contributed to Floyd’s death, saying, “I would defer to a pulmonologist.”

Chicago pulmonologist Martin Tobin, who testified last Thursday, concluded that “Floyd died from a low level of oxygen” caused by obstructed breathing, which ultimately “caused his heart to stop.” Tobin said even a perfectly healthy person would have died in these circumstances.

Nelson, Chauvin’s lawyer, argues that Floyd “died of a cardiac arrhythmia that occurred as a result of hypertension, his coronary disease, the ingestion of methamphetamine and fentanyl, and the adrenaline flowing through his body, all of which acted to further compromise an already compromised heart.” But even that gloss does not let Chauvin off the hook, since the stress caused by his use of force plausibly contributed to “the adrenaline flowing through [Floyd’s] body” and the ensuing “cardiac arrhythmia.”

University of South Carolina law professor Seth Stoughton, a former police officer, agreed with other use-of-force experts that Floyd’s prolonged prone restraint was not objectively reasonable. “No reasonable officer would have believed that that was an appropriate, acceptable, or reasonable use of force,” he said.

Floyd resisted Kueng and Lane when they tried to place him in their squad car after arresting him for using a counterfeit $20 bill to buy cigarettes. He said he was claustrophobic, complained that he could not breathe, and asked to ride in the front seat. But once Kueng and Lane pulled him out of the car, he stopped struggling and thanked them, at which point the three officers tackled Floyd, who was already handcuffed, and pinned him to the ground.

Judging from the video record of the encounter, Stoughton said, Floyd “does not appear to have the intention to assault or attack the officers.” He said the use of force was even more manifestly unreasonable after Floyd became unresponsive. “Somebody who does not have a pulse does not present a threat in any way,” he noted.

So far Nelson’s argument that Chauvin’s use of force was appropriate has been based mainly on Floyd’s prior struggle with Kueng and Lane, which does not show that Floyd posed a threat after he was out of the squad car, and the suggestion that Floyd may have continued to resist in ways that are not visible in the videos. Nelson also has repeatedly argued that Chauvin and his colleagues were distracted by the bystanders who criticized the way the cops were treating Floyd.

Like Los Angeles Police Department Sgt. Jody Stiger, another use-of-force expert, Stoughton questioned the notion that the bystanders posed a threat to the officers. He noted that the cops yelled responses to their criticism, which suggests they were not worried about possible violence. Furthermore, the officers were plainly aware of Floyd’s complaints that he could not breathe, which they repeatedly dismissed in exchanges with him and the bystanders, and they clearly noticed that Floyd had stopped moving and talking, which is what prompted Kueng to check his pulse. In any event, as Stiger noted, the behavior of bystanders cannot legally justify the use of force against Floyd if it was otherwise excessive.

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The FDA’s Decision To Pause J&J Vaccination Will Kill People


JJvaccineDreamstime

The U.S. Centers for Disease Control and Prevention (CDC) and the Food and Drug Administration (FDA) issued a statement today “recommending a pause in the use” of Johnson & Johnson’s COVID-19 vaccine. The agencies took this step “out of an abundance of caution” based on six cases of a rare blood clot disorder in people who had been inoculated with the one-dose vaccine. There have been six cases out of 6.8 million people who have already been inoculated with the vaccine. The blood clot incidents all occurred in women between the ages of 18 and 48. Those odds amount to one in 1.13 million, which is comparable to your annual chances of being struck by lightning (1 in 1.22 million).

For comparison, a November 2020 meta-analysis in The Lancet found that more than one in five COVID-19 patients experienced venous thromboembolism—that is, blood clots in their veins. In addition, the risk of blood clots from taking oral contraceptives is about 1 in 1,000 annually.

A March 2021 study in Science reports that more than 70 percent of new COVID-19 infections have been driven by Americans between the ages of 20 and 49. The faster that people in that age group get vaccinated, the less likely it is that other Americans who remain unvaccinated or immunocompromised will become infected.

Unfortunately, many states have declared that they are following the pause recommendation from these federal agencies. Officials in the Biden White House have declared that the pause in the rollout of the Johnson & Johnson vaccine “will not have a significant impact on our vaccination plan.” The New York Times notes, however, that instead of being able to deliver enough doses by the end of May to cover 260 million Americans, the pause will result in only enough for health authorities to fully vaccinate 230 million.

Before the Johnson & Johnson pause was announced, the good news has been that COVID-19 vaccine hesitancy among Americans had been steadily dropping. Interestingly, some public health experts apparently believe that the pause will increase Americans’ confidence in the COVID-19 vaccines. For example, FDA Vaccine Advisory Committee member Dr. Paul Offit tells Forbes that the pause “should be largely reassuring” because it shows the agencies are “still looking” to determine possible side effects even after the vaccine was approved.

Offit’s optimism seems dubious given that public confidence in the Oxford/AstraZeneca COVID-19 vaccine plunged according to a YouGov poll, after various European governments paused its distribution in March over reports of similarly rare anomalous post-vaccination blood clotting incidents. The good news is that public confidence in the safety of the Pfizer/BioNTech and Moderna vaccines remained steady among Europeans.

By focusing on the not-yet-proven, very low risk of blood clots versus the known risks of the increased misery, hospitalizations, and deaths that the Johnson & Johnson vaccine would have prevented, our overly cautious public health bureaucrats will likely cause more sickness and deaths among Americans than would otherwise have occurred.

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6th Cir. Upholds Ban on Doctors Performing Abortions Knowing the Reason Is Down Syndrome

The opinion is Preterm Cleveland v. McCloud, just handed down today; I haven’t read all 111 pages yet, but here’s what seems to be the core of the majority’s opinion:

Ultimately, the question is whether these burdens will have the effect of precluding a woman from choosing or obtaining an abortion. The evidence demonstrates that they will not….

In the plaintiffs’ proffered evidence, Chrisse France, Preterm-Cleveland’s Executive Director, states via affidavit that Preterm-Cleveland “will have no choice” but to refuse to provide abortions to women who have reason to believe their child has Down syndrome. She does not explain, however, why Preterm-Cleveland would not be able to provide abortions to such women if the doctor were unaware of their specific motive….

None of the plaintiffs’ declarants, however, says that the doctor would be unable to perform an abortion if the doctor were unaware that the woman has this motive…. [W]omen affected by H.B. 214 could still obtain abortions simply by not disclosing this motive to that specific doctor … [Plaintiff’s] declarants claim they would advise such women to seek an abortion in another state, but none explains why the provider would not be able to refer such women to another doctor in Ohio who would be unaware of the woman’s motive. There is at this point no basis to conclude that the plaintiffs are likely to succeed in showing that H.B. 214 will impose an undue burden.

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