Category: reason

Elizabeth Warren Doesn’t Really Have a Plan to Pay for Medicare for All

Late last month, as Sen. Elizabeth Warren (D–Mass.) was under increasing pressure to explain how she would pay for Medicare for All, the single-payer health care system she supports, The Washington Post reported that the presidential hopeful was working with liberal economists to put together a financing plan. 

This was a challenge, the piece noted, partly because the plan would require so much additional government spending, and partly because Warren herself had committed to not financing the program via middle-class taxes, as most countries with national health care systems have done. 

More broadly, Warren wanted a plan that was simple and straightforward. As one anonymous outside advisor told the Post, “They want to figure out—with one go—how to stop the ‘How are you going to pay for it?’ question…She wants something airtight but easy to understand.”

In the end, her plan turned out to be neither. Her proposal is, on the one hand, unwieldy and complex, a lengthy list of provisions that are difficult to capture in a few sentences. And, in part because of its complexity, it is also far from airtight. The plan is full of dubious assumptions about the cost-savings that could be achieved under a single-payer system and the revenue that could be raised by the taxes and fees she would impose. It is not really a plan at all. 

That is the essential point that Avik Roy, president of the Foundation for Research on Equal Opportunity, drives home in a new analysis of the fiscal effects of Warren’s financing plan. Roy’s analysis assumes that all of the policies Warren calls for—even those that are quite politically unlikely, such as the passage of comprehensive immigration reform—actually go into effect. 

Roy concludes that Warren’s plan would raise far less money than assumed, and would cost far more. Broadly speaking, Warren’s plan doesn’t account for the likely economic ripple effects it would almost certainly cause; instead, she assumes that even with an array of new taxes and fees on businesses and wealthy individuals, economic growth would continue without change. Corporate tax rates would go from 21 percent to 35 percent, which, as Roy notes, “would have a meaningful effect on employment and economic growth, especially in the manufacturing sector and other capital-intensive industries.” This allows her to claim far more tax revenue than is realistic.

In addition, Warren assumes that by moving nearly all of America’s health care financing to the federal government, administrative costs—the overhead that supports the actual delivery of care—can be cut down to levels that few independent experts believe possible. 

For example, Roy points out, rooting out waste, fraud, and abuse is an administrative cost; currently, about 10 percent of Medicare spending falls into one of these categories. With radically reduced administrative spending, that figure would likely be far higher than Warren estimates, leading to about $3 trillion in additional spending over a decade. 

All together, Roy estimates that far from fully financing Medicare for All, Warren’s plan would end up increasing deficits by about $15 trillion over a decade. 

Roy is a former Republican health policy adviser who has often been skeptical of large-scale liberal health plans. But what’s notable about his estimate is how close it is to a similar figure put forth by Emory University health policy scholar Kenneth Thorpe, who has at times been supportive of single-payer health care plans. Although some of the particular underlying assumptions differ, Thorpe estimates that Warren’s plan comes up about $14 trillion short. 

Like Roy, Thorpe takes issue with Warren’s savings estimates. Quoted in a new essay by Philip Klein of The Washington Examiner, Thorpe calls her administrative savings numbers “unrealistically low,” and is particularly harsh on her estimates for prescription drug savings: 

The Warren campaign claims that through more aggressive negotiation and threats to rescind patent and licensing protections, it could cut the price that Medicare pays by 70% for brand-name prescription drugs and by 30% for generics, saving $1.7 trillion relative to the Urban Institute forecast. But Emory’s Thorpe says such targets are “not even close” to realistic. “It would be the end of any type of research and development and innovation in this country,” Thorpe says. “Nobody would invest in the pharmaceutical industry at those numbers.”

Klein went through the various points of Warren’s plan, and throughout the process, Klein writes, Thorpe kept repeating some variation on the phrase: “That doesn’t make any sense.” 

The point, I suspect, isn’t to make sense, or to add up in any conventional sense. The point is to divert the discussion into technical analysis that many people will tune out, and wave away critics who point out that her assumptions are hokum. 

And you don’t necessarily need to dig into the finer points of health care economics to see how flimsy her proposal is. Just look at how Warren herself is describing it. Her Medicare for All plan includes a 6 percent wealth tax, up from the 2 percent wealth tax she proposed earlier this year. Yet she has continued to describe it as a two-cent tax on billionaires. 

Warren is apparently so unconcerned with the details that she isn’t bothering to get the basics right herself. In some ways, then, you can set aside the wonky arguments about growth rates and revenue expectations and implausible reductions to health care spending. All you really need to know is that even Warren isn’t taking her plan seriously. 

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Elizabeth Warren Doesn’t Really Have a Plan to Pay for Medicare for All

Late last month, as Sen. Elizabeth Warren (D–Mass.) was under increasing pressure to explain how she would pay for Medicare for All, the single-payer health care system she supports, The Washington Post reported that the presidential hopeful was working with liberal economists to put together a financing plan. 

This was a challenge, the piece noted, partly because the plan would require so much additional government spending, and partly because Warren herself had committed to not financing the program via middle-class taxes, as most countries with national health care systems have done. 

More broadly, Warren wanted a plan that was simple and straightforward. As one anonymous outside advisor told the Post, “They want to figure out—with one go—how to stop the ‘How are you going to pay for it?’ question…She wants something airtight but easy to understand.”

In the end, her plan turned out to be neither. Her proposal is, on the one hand, unwieldy and complex, a lengthy list of provisions that are difficult to capture in a few sentences. And, in part because of its complexity, it is also far from airtight. The plan is full of dubious assumptions about the cost-savings that could be achieved under a single-payer system and the revenue that could be raised by the taxes and fees she would impose. It is not really a plan at all. 

That is the essential point that Avik Roy, president of the Foundation for Research on Equal Opportunity, drives home in a new analysis of the fiscal effects of Warren’s financing plan. Roy’s analysis assumes that all of the policies Warren calls for—even those that are quite politically unlikely, such as the passage of comprehensive immigration reform—actually go into effect. 

Roy concludes that Warren’s plan would raise far less money than assumed, and would cost far more. Broadly speaking, Warren’s plan doesn’t account for the likely economic ripple effects it would almost certainly cause; instead, she assumes that even with an array of new taxes and fees on businesses and wealthy individuals, economic growth would continue without change. Corporate tax rates would go from 21 percent to 35 percent, which, as Roy notes, “would have a meaningful effect on employment and economic growth, especially in the manufacturing sector and other capital-intensive industries.” This allows her to claim far more tax revenue than is realistic.

In addition, Warren assumes that by moving nearly all of America’s health care financing to the federal government, administrative costs—the overhead that supports the actual delivery of care—can be cut down to levels that few independent experts believe possible. 

For example, Roy points out, rooting out waste, fraud, and abuse is an administrative cost; currently, about 10 percent of Medicare spending falls into one of these categories. With radically reduced administrative spending, that figure would likely be far higher than Warren estimates, leading to about $3 trillion in additional spending over a decade. 

All together, Roy estimates that far from fully financing Medicare for All, Warren’s plan would end up increasing deficits by about $15 trillion over a decade. 

Roy is a former Republican health policy adviser who has often been skeptical of large-scale liberal health plans. But what’s notable about his estimate is how close it is to a similar figure put forth by Emory University health policy scholar Kenneth Thorpe, who has at times been supportive of single-payer health care plans. Although some of the particular underlying assumptions differ, Thorpe estimates that Warren’s plan comes up about $14 trillion short. 

Like Roy, Thorpe takes issue with Warren’s savings estimates. Quoted in a new essay by Philip Klein of The Washington Examiner, Thorpe calls her administrative savings numbers “unrealistically low,” and is particularly harsh on her estimates for prescription drug savings: 

The Warren campaign claims that through more aggressive negotiation and threats to rescind patent and licensing protections, it could cut the price that Medicare pays by 70% for brand-name prescription drugs and by 30% for generics, saving $1.7 trillion relative to the Urban Institute forecast. But Emory’s Thorpe says such targets are “not even close” to realistic. “It would be the end of any type of research and development and innovation in this country,” Thorpe says. “Nobody would invest in the pharmaceutical industry at those numbers.”

Klein went through the various points of Warren’s plan, and throughout the process, Klein writes, Thorpe kept repeating some variation on the phrase: “That doesn’t make any sense.” 

The point, I suspect, isn’t to make sense, or to add up in any conventional sense. The point is to divert the discussion into technical analysis that many people will tune out, and wave away critics who point out that her assumptions are hokum. 

And you don’t necessarily need to dig into the finer points of health care economics to see how flimsy her proposal is. Just look at how Warren herself is describing it. Her Medicare for All plan includes a 6 percent wealth tax, up from the 2 percent wealth tax she proposed earlier this year. Yet she has continued to describe it as a two-cent tax on billionaires. 

Warren is apparently so unconcerned with the details that she isn’t bothering to get the basics right herself. In some ways, then, you can set aside the wonky arguments about growth rates and revenue expectations and implausible reductions to health care spending. All you really need to know is that even Warren isn’t taking her plan seriously. 

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Instant reaction to DACA Case: At Least Five Votes that Rescission Not Reviewable

I attended oral arguments today in the DACA case. I will have much more to say about the proceedings, as well as the process to get there, in due time. For now, I will briefly offer my prediction: there are at least five votes to hold that the DACA rescission is not reviewable. I say at least five, because Justice Kagan did not seem averse to that analysis. Indeed, a decision that the rescission is not reviewable could lead to the conclusion that DACA itself is not reviewable. SG Francisco tried to thread the needle by saying DACA was reviewable, but the decision was not. Justice Kagan seemed skeptical of this argument. The specific contours of that ruling would become important if President Trump loses re-election.
This type of ruling would be the best-case loss for the Dreamers. Given the 30-day period following remand, followed by a six-month wind-down period, DACA would remain in effect until after the inauguration. In theory, at least, a Democratic president could simply reinstitute the policy on January 20, 2021. At that point, we would be back at square one, and Texas would sue to block DACA.
The Court already ducked the merits of DAPA once in 2016. It could do so again here. And it may take another two years before the case winds its way back to the Court. At which point, the reliance interests would become even greater than they are today.

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Instant reaction to DACA Case: At Least Five Votes that Rescission Not Reviewable

I attended oral arguments today in the DACA case. I will have much more to say about the proceedings, as well as the process to get there, in due time. For now, I will briefly offer my prediction: there are at least five votes to hold that the DACA rescission is not reviewable. I say at least five, because Justice Kagan did not seem averse to that analysis. Indeed, a decision that the rescission is not reviewable could lead to the conclusion that DACA itself is not reviewable. SG Francisco tried to thread the needle by saying DACA was reviewable, but the decision was not. Justice Kagan seemed skeptical of this argument. The specific contours of that ruling would become important if President Trump loses re-election.
This type of ruling would be the best-case loss for the Dreamers. Given the 30-day period following remand, followed by a six-month wind-down period, DACA would remain in effect until after the inauguration. In theory, at least, a Democratic president could simply reinstitute the policy on January 20, 2021. At that point, we would be back at square one, and Texas would sue to block DACA.
The Court already ducked the merits of DAPA once in 2016. It could do so again here. And it may take another two years before the case winds its way back to the Court. At which point, the reliance interests would become even greater than they are today.

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Impeachment and the Sixth Amendment

Steven Calabresi is an important figure in the US legal profession, the holder of a named chair at a top-flight institution (Northwestern Pritzker School of Law) and the Co-founder and Board Chairman of the Federalist Society.  In a recent essay, “House Democrats Violate The 6th Amendment By Denying Trump A Public Trial,” available here, he makes an argument that the House impeachment inquiry is violating President Trump’s Sixth Amendment rights, an argument that is so peculiar, and so contrary to elementary and fundamental constitution principles, that one has to wonder what he could possibly have been thinking and what could possibly have motivated him to put the argument forward.

Here’s the basic gist of what he wrote:

“The nation is transfixed by the impeachment proceedings against President Donald Trump for purportedly using U.S. military aid to Ukraine to prompt that country to reopen a corruption into former Vice President Joe Biden’s son. What no one is focusing on is the fact that the Democratic majority in the House of Representatives is violating the president’s constitutional rights. The House majority is thus itself acting unconstitutionally and is seriously abusing its power.

Impeachment is a legal proceeding, and just as criminal defendants have constitutional rights in criminal trials so too does Trump have constitutional rights, which House Democrats are denying him. For example, the Sixth Amendment gives criminal defendants the right to “a speedy and public trial.” House Democrats are trying Trump in secret and are denying him the right to a public proceeding….

The Sixth Amendment also guarantees criminal defendants the right to be “informed” of the charges against them. House Democrats are not informing Trump of the charges against him and are leaking salacious information to the press.  This, too, violates Trumps rights under the federal Bill of Rights.

Moreover, the Sixth Amendment guarantees Trump the right “to confront the witnesses against him,” which right House Democrats are denying to Trump. The president has a right under current Supreme Court case law to have a public face-to-face confrontation with the witnesses against and to testify in his own defense. House Democrats are denying the president that very basic constitutional right….”

Perhaps “no one is focusing on this” because it is utter nonsense, completely devoid of any apparent constitutional logic.  Yes, impeachment is a “legal proceeding”—but it is not a criminal proceeding to which the 6th Amendment applies; yes, “criminal defendants” are guaranteed the right to a speedy trial, to be informed of the charges, to confront witnesses, etc.—but Mr. Trump is not a “criminal defendant” in the impeachment proceedings, so Prof. Calabresi’s claim makes no sense whatsoever.

To review, here’s the text of the 6th Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

The critical phrase, of course, is the first one, explicitly linking 6th Amendment protections to “the accused” in a “criminal prosecution.” There is more than a century’s worth of precedent construing that critical limitation on the Amendment’s scope.  A “criminal prosecution” begins, and the 6th Amendment attaches, at the “initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment—because the initiation of such proceedings marks the commencement of the criminal prosecutions to which alone the explicit guarantees of the Sixth Amendment are applicable.” Moore v. Illinois, 434 US 22 (1977); Texas v. Cobb, 532 U.S. 162 (2001). And to constitute a criminal proceeding, there must be a threat of “actual imprisonment”—a substantial “deprivation of liberty.” Scott v. Illinois, 440 U.S. 367 (1979), Rothgery v. Gillespie County, Tex., 128 S. Ct. 2578 (2008).

Thus, 6th Amendment protections do not apply to:

  • proceedings involving “petty” (as opposed to “serious”) crimes, as measured by the length of the authorized prison term, Muniz v. Hoffman, 422 U.S. 454 (1975);
  • to misdemeanors (unless accompanied by prison terms for violators), U.S. v. Nachtigal, 507 U.S. 1 (1993);
  • prison disciplinary hearings, Minnesota v. Murphy, 465 U.S. 420 (1984);
  • parental status termination hearings, Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981);
  • juvenile delinquency proceedings, McKeiver v. Pennsylvania, 403 U.S. 528 (1971);
  • probation hearings, U.S. v. Nachtigal, 507 U.S. 1 (1993), Frank v. U.S., 395 U.S. 147 (1969);
  • summary courts-martial, Middendorf v. Henry, 425 U.S. 25 (1976);
  • asset forfeiture proceedings, Libretti v. U.S., 516 U.S. 29 (1995);
  • civil (as opposed to criminal) contempt proceedings, or civil proceedings generally, Turner v. Rogers, 564 U.S. 431 (2011)

because (and to the extent that) these are not criminal proceedings involving the prospect of imposing a punishment of “actual imprisonment” on the litigant.

The notion that the House’s impeachment inquiry is, constitutionally-speaking, an “adversary judicial criminal proceeding” to which the 6th Amendment applies is, frankly, laughable and nothing short of ridiculous, the sort of mistake a 1L might make on a ConLaw 1 exam but not something one expects from an eminent law professor holding a position at a top law school. The impeachment inquiry is not an adversary judicial criminal proceeding because it is neither a “judicial” proceeding nor a “criminal” proceeding; it is a Congressional proceeding, and whatever the outcome may be it will not, and cannot, result in Trump’s imprisonment or any deprivation of his liberty, but only in his removal from office. [Indeed, it would certainly be an obvious and egregious violation of the constitutional separation of powers were Congress to undertake a true criminal proceeding, a function reserved to the Judiciary.]

Whatever constitutional rules or norms might apply to the procedures undertaken as part of the impeachment inquiry—which is a complicated question about which reasonable people might disagree—they are not to be found in the Sixth Amendment, and Trump cannot invoke any of his “6th Amendment rights” (to demand a speedy and public trial or an impartial jury of the State and district wherein the crime shall have been committed, to be informed of the nature and cause of the accusation, to confront with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, or to have the Assistance of Counsel for his defense) in connection with that inquiry.

This is pretty elementary stuff—and it is inconceivable to me that someone as well-versed in constitutional law as Steve Calabresi would not recognize this as the constitutional nonsense that it so obviously is. What we have then, perhaps, is another illustration of Trump Derangement Syndrome—an inability of otherwise sensible and thoughtful people to think clearly and logically about anything concerning this president. And while life is too short to try to correct all the nonsensical notions that law professors come up with, this is not just ordinary constitutional nonsense, it is particularly pernicious constitutional nonsense. We are in a portentous moment in the history of this country; it is likely that, for only the third time in 230 years, the House will pass Articles of Impeachment on to the Senate, and we will then witness a trial in the Senate of a sitting president accused of “high crimes and misdemeanors.” Public opinion concerning the strength of the case, the seriousness of the charge(s), the fairness of the process, the credibility of the witnesses, etc., is—and should be—of critical importance to this undertaking. Law professors who want to contribute to the public debate and discussion about these matters surely have an obligation to get matters within their particular spheres of expertise—the laws and the Constitution—as right as they can, in order to assist the public in evaluating these questions and understanding these issues in the weeks and months ahead.

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Impeachment and the Sixth Amendment

Steven Calabresi is an important figure in the US legal profession, the holder of a named chair at a top-flight institution (Northwestern Pritzker School of Law) and the Co-founder and Board Chairman of the Federalist Society.  In a recent essay, “House Democrats Violate The 6th Amendment By Denying Trump A Public Trial,” available here, he makes an argument that the House impeachment inquiry is violating President Trump’s Sixth Amendment rights, an argument that is so peculiar, and so contrary to elementary and fundamental constitution principles, that one has to wonder what he could possibly have been thinking and what could possibly have motivated him to put the argument forward.

Here’s the basic gist of what he wrote:

“The nation is transfixed by the impeachment proceedings against President Donald Trump for purportedly using U.S. military aid to Ukraine to prompt that country to reopen a corruption into former Vice President Joe Biden’s son. What no one is focusing on is the fact that the Democratic majority in the House of Representatives is violating the president’s constitutional rights. The House majority is thus itself acting unconstitutionally and is seriously abusing its power.

Impeachment is a legal proceeding, and just as criminal defendants have constitutional rights in criminal trials so too does Trump have constitutional rights, which House Democrats are denying him. For example, the Sixth Amendment gives criminal defendants the right to “a speedy and public trial.” House Democrats are trying Trump in secret and are denying him the right to a public proceeding….

The Sixth Amendment also guarantees criminal defendants the right to be “informed” of the charges against them. House Democrats are not informing Trump of the charges against him and are leaking salacious information to the press.  This, too, violates Trumps rights under the federal Bill of Rights.

Moreover, the Sixth Amendment guarantees Trump the right “to confront the witnesses against him,” which right House Democrats are denying to Trump. The president has a right under current Supreme Court case law to have a public face-to-face confrontation with the witnesses against and to testify in his own defense. House Democrats are denying the president that very basic constitutional right….”

Perhaps “no one is focusing on this” because it is utter nonsense, completely devoid of any apparent constitutional logic.  Yes, impeachment is a “legal proceeding”—but it is not a criminal proceeding to which the 6th Amendment applies; yes, “criminal defendants” are guaranteed the right to a speedy trial, to be informed of the charges, to confront witnesses, etc.—but Mr. Trump is not a “criminal defendant” in the impeachment proceedings, so Prof. Calabresi’s claim makes no sense whatsoever.

To review, here’s the text of the 6th Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

The critical phrase, of course, is the first one, explicitly linking 6th Amendment protections to “the accused” in a “criminal prosecution.” There is more than a century’s worth of precedent construing that critical limitation on the Amendment’s scope.  A “criminal prosecution” begins, and the 6th Amendment attaches, at the “initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment—because the initiation of such proceedings marks the commencement of the criminal prosecutions to which alone the explicit guarantees of the Sixth Amendment are applicable.” Moore v. Illinois, 434 US 22 (1977); Texas v. Cobb, 532 U.S. 162 (2001). And to constitute a criminal proceeding, there must be a threat of “actual imprisonment”—a substantial “deprivation of liberty.” Scott v. Illinois, 440 U.S. 367 (1979), Rothgery v. Gillespie County, Tex., 128 S. Ct. 2578 (2008).

Thus, 6th Amendment protections do not apply to:

  • proceedings involving “petty” (as opposed to “serious”) crimes, as measured by the length of the authorized prison term, Muniz v. Hoffman, 422 U.S. 454 (1975);
  • to misdemeanors (unless accompanied by prison terms for violators), U.S. v. Nachtigal, 507 U.S. 1 (1993);
  • prison disciplinary hearings, Minnesota v. Murphy, 465 U.S. 420 (1984);
  • parental status termination hearings, Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981);
  • juvenile delinquency proceedings, McKeiver v. Pennsylvania, 403 U.S. 528 (1971);
  • probation hearings, U.S. v. Nachtigal, 507 U.S. 1 (1993), Frank v. U.S., 395 U.S. 147 (1969);
  • summary courts-martial, Middendorf v. Henry, 425 U.S. 25 (1976);
  • asset forfeiture proceedings, Libretti v. U.S., 516 U.S. 29 (1995);
  • civil (as opposed to criminal) contempt proceedings, or civil proceedings generally, Turner v. Rogers, 564 U.S. 431 (2011)

because (and to the extent that) these are not criminal proceedings involving the prospect of imposing a punishment of “actual imprisonment” on the litigant.

The notion that the House’s impeachment inquiry is, constitutionally-speaking, an “adversary judicial criminal proceeding” to which the 6th Amendment applies is, frankly, laughable and nothing short of ridiculous, the sort of mistake a 1L might make on a ConLaw 1 exam but not something one expects from an eminent law professor holding a position at a top law school. The impeachment inquiry is not an adversary judicial criminal proceeding because it is neither a “judicial” proceeding nor a “criminal” proceeding; it is a Congressional proceeding, and whatever the outcome may be it will not, and cannot, result in Trump’s imprisonment or any deprivation of his liberty, but only in his removal from office. [Indeed, it would certainly be an obvious and egregious violation of the constitutional separation of powers were Congress to undertake a true criminal proceeding, a function reserved to the Judiciary.]

Whatever constitutional rules or norms might apply to the procedures undertaken as part of the impeachment inquiry—which is a complicated question about which reasonable people might disagree—they are not to be found in the Sixth Amendment, and Trump cannot invoke any of his “6th Amendment rights” (to demand a speedy and public trial or an impartial jury of the State and district wherein the crime shall have been committed, to be informed of the nature and cause of the accusation, to confront with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, or to have the Assistance of Counsel for his defense) in connection with that inquiry.

This is pretty elementary stuff—and it is inconceivable to me that someone as well-versed in constitutional law as Steve Calabresi would not recognize this as the constitutional nonsense that it so obviously is. What we have then, perhaps, is another illustration of Trump Derangement Syndrome—an inability of otherwise sensible and thoughtful people to think clearly and logically about anything concerning this president. And while life is too short to try to correct all the nonsensical notions that law professors come up with, this is not just ordinary constitutional nonsense, it is particularly pernicious constitutional nonsense. We are in a portentous moment in the history of this country; it is likely that, for only the third time in 230 years, the House will pass Articles of Impeachment on to the Senate, and we will then witness a trial in the Senate of a sitting president accused of “high crimes and misdemeanors.” Public opinion concerning the strength of the case, the seriousness of the charge(s), the fairness of the process, the credibility of the witnesses, etc., is—and should be—of critical importance to this undertaking. Law professors who want to contribute to the public debate and discussion about these matters surely have an obligation to get matters within their particular spheres of expertise—the laws and the Constitution—as right as they can, in order to assist the public in evaluating these questions and understanding these issues in the weeks and months ahead.

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A Georgia Death Row Inmate Will Be Executed Tomorrow. New Evidence Says a Different Man Was the Shooter.

Lawyers are hoping new evidence will help the case of Georgia death row inmate Ray Cromartie, 52, just days before he is scheduled to die for the 1994 shooting death of store clerk Richard Slysz.

Cromartie will be killed tomorrow. Late Friday, lawyers filed a new motion containing a notarized affidavit (page 30) from one of Cromartie’s co-defendants in the case, Thaddeus Lucas, who is also his half-brother. Lucas drove Cromartie and Corey Clark to the Junior Food Store in Thomasville the night of the robbery.

According to the affidavit, Lucas says that while he did not see what happened, he “later overheard” Clark talk about shooting Slysz in the face. Lucas says they were at a friend’s apartment and Clark made the comment to one of the guests in the room.

“I have not wanted to talk about this before. I have not told anyone what Corey said about shooting the clerk because I was worried that it would ruin my life more than it already has,” he said.

Lucas was convicted for his role in the crime and spent 10 years in prison because of it. He also said that he didn’t believe his testimony would change the outcome of the case.

Why did Lucas choose to speak now? He said in the affidavit that reading about the case upset him because “because the story is not the truth of what really happened.”

Clark ended up testifying against Cromartie on behalf of the state. It was Clark who identified Cromartie as the shooter. The affidavit filed on Friday notes that Clark had “clear motive to lie.”

The affidavit also notes another person who testified against Cromarte. Carnell Cooksey was, at the time, a longtime friend of Clark and a recent acquaintance to Cromartie. Cooksey first testified that Cromartie told him he was the shooter, then changed his testimony in the state habeas proceedings, saying Cromartie didn’t actually make the statement to him. (The court did not find the second testimony credible.)

Lucas is not the only one doubting the story of Cromartie being the shooter. The victim’s own daughter, Elizabeth Legette, has previously asked the Georgia Supreme Court to approve DNA testing in the case as she has “serious questions about what happened the night my father was murdered and whether Ray Cromartie actually killed him.”

No physical evidence ties Cromartie to the shooting. Prosecutors made their case based on Clark’s testimony and low-quality security camera that showed a man with Cromartie’s general description.

“No court has ever heard or considered this new evidence of Ray Cromartie’s innocence,” Shawn Nolan, Cromartie’s lawyer, tells Reason. “It would be a horrific miscarriage of justice to execute Ray Cromartie without full consideration of all the facts in his case, including the new evidence of his innocence.”

A coalition of community residents and religious leaders have signed a petition in support of DNA testing in Cromartie’s case.

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A Georgia Death Row Inmate Will Be Executed Tomorrow. New Evidence Says a Different Man Was the Shooter.

Lawyers are hoping new evidence will help the case of Georgia death row inmate Ray Cromartie, 52, just days before he is scheduled to die for the 1994 shooting death of store clerk Richard Slysz.

Cromartie will be killed tomorrow. Late Friday, lawyers filed a new motion containing a notarized affidavit (page 30) from one of Cromartie’s co-defendants in the case, Thaddeus Lucas, who is also his half-brother. Lucas drove Cromartie and Corey Clark to the Junior Food Store in Thomasville the night of the robbery.

According to the affidavit, Lucas says that while he did not see what happened, he “later overheard” Clark talk about shooting Slysz in the face. Lucas says they were at a friend’s apartment and Clark made the comment to one of the guests in the room.

“I have not wanted to talk about this before. I have not told anyone what Corey said about shooting the clerk because I was worried that it would ruin my life more than it already has,” he said.

Lucas was convicted for his role in the crime and spent 10 years in prison because of it. He also said that he didn’t believe his testimony would change the outcome of the case.

Why did Lucas choose to speak now? He said in the affidavit that reading about the case upset him because “because the story is not the truth of what really happened.”

Clark ended up testifying against Cromartie on behalf of the state. It was Clark who identified Cromartie as the shooter. The affidavit filed on Friday notes that Clark had “clear motive to lie.”

The affidavit also notes another person who testified against Cromarte. Carnell Cooksey was, at the time, a longtime friend of Clark and a recent acquaintance to Cromartie. Cooksey first testified that Cromartie told him he was the shooter, then changed his testimony in the state habeas proceedings, saying Cromartie didn’t actually make the statement to him. (The court did not find the second testimony credible.)

Lucas is not the only one doubting the story of Cromartie being the shooter. The victim’s own daughter, Elizabeth Legette, has previously asked the Georgia Supreme Court to approve DNA testing in the case as she has “serious questions about what happened the night my father was murdered and whether Ray Cromartie actually killed him.”

No physical evidence ties Cromartie to the shooting. Prosecutors made their case based on Clark’s testimony and low-quality security camera that showed a man with Cromartie’s general description.

“No court has ever heard or considered this new evidence of Ray Cromartie’s innocence,” Shawn Nolan, Cromartie’s lawyer, tells Reason. “It would be a horrific miscarriage of justice to execute Ray Cromartie without full consideration of all the facts in his case, including the new evidence of his innocence.”

A coalition of community residents and religious leaders have signed a petition in support of DNA testing in Cromartie’s case.

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Is Trump Choosing Tariffs Over a Trade Deal With China?

When someone says he is a “Tariff Man,” you should probably believe him.

President Donald Trump says he is unwilling to roll back any of the tariffs his administration has placed on Chinese imports as part of a “phase one” trade deal. Although the framework of a deal has been announced by leaders in both countries—and despite the fact that plans to sign the deal are already being made—Trump’s unwillingness to withdraw any tariffs appears to be a major stumbling block toward actually reaching an agreement.

Trump and his top trade advisor have been quick to shoot down speculation that the “phase one” deal could be the beginning of the end of the trade war. That speculation started on Thursday, when a spokesman for the Chinese Commerce Ministry said both countries had agreed to a reduction in tariffs. But Trump told reporters over the weekend that he had not agreed to any such reduction—a statement that effectively signals Trump’s desire to control the outcome of the negotiations, regardless of what his own trade negotiators might be crafting.

Peter Navarro, Trump’s top trade advisor and an avowed China hawk, slammed what he called “misleading” coverage of the tariff rollback agreement. In an email to multiple media outlets, Navarro said “the story began with a declaration by propagandists within the Chinese government” and that “there was no such agreement,” Politico reported.

It is impossible to tell which side is playing the other—or whether both are merely staking out negotiating positions. But the whole incident strongly suggests that a deal to end the trade war is not imminent, and should lower expectations for what will actually be accomplished within the “phase one” agreement that’s still being hammered out.

A quick check of the scoreboard: The United States has imposed tariffs on about $500 billion worth of Chinese imports since July 2018, with another round of tariffs scheduled to hit in mid-December. If those go ahead as planned, nearly all imports from China (minus a few specific carve-outs) will be subject to import taxes. China has retaliated with tariffs on about $110 billion of U.S. goods and by shifting their purchasing of agricultural goods towards other producers. Both sides are losing.

But if he’s facing a choice between his beloved tariffs and a possible trade deal with China, it shouldn’t be a surprise if Trump decides to stick with the tariffs.

He’s been telegraphing as much since early this year, just weeks after an apparent December 2018 breakthrough in the trade war dissolved. During a January 31 interview with reporters from The New York Times, Trump was asked bluntly whether he would be willing to lift his tariffs on Chinese imports as part of a trade deal.

“Do you think it’s possible that you might still go, even if you reach a deal on all of the points you’re trying to reach, leave some of the tariffs on?” asked Peter Baker, the Times’ White House correspondent. “Is that a possibility?”

“Yeah, sure,” said Trump, after an extended rant about the World Trade Organization. “We have 25 percent now on $50 billion. And by the way, Peter, that’s a lot of money pouring into our Treasury, you know. We never made 5 cents with China. We’re getting right now 25 percent on $50 billion.”

At the time, this seemed like just more evidence that Trump does not understand how tariffs work. The Treasury is not “getting” money from China—the $37 billion in tariff revenue collected since the trade war began have come out of the pockets of American importers, businesses, and consumers—though the tariffs are likely responsible for a slowdown in China’s growth rate, and for disadvantaging the private businesses operating in the shadow of China’s state-controlled economy.

But Trump was clear that, even with a deal that accomplished all of his goals (which remain unclear), he’d keep the tariffs in place.

More than 10 months later, he’s sticking to that position. Another potential breakthrough in the trade war looks to be on shaky ground because Trump is unwilling to budge on his commitment to maintaining tariffs on Chinese imports—the removal of which are, understandably, a major priority for China.

And without an agreement to roll back tariffs, there will be no deal, tweeted Hu Xijin, editor of the Global Times, a Chinese newspaper widely seen as a mouthpiece for the country’s government.

Much of the trade war has been defined by Trump’s misunderstanding of how tariffs work and who pays for them, crossed with his unwillingness to use any other tools to accomplish his trade policy goals.

That ignorance has imposed immense economic costs on American consumers and businesses while failing to reduce how much America imports from China and dragging down U.S. economic growth.

That stubbornness might preclude Trump from being able to reach an agreement that would start to undo the damage.

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Is Trump Choosing Tariffs Over a Trade Deal With China?

When someone says he is a “Tariff Man,” you should probably believe him.

President Donald Trump says he is unwilling to roll back any of the tariffs his administration has placed on Chinese imports as part of a “phase one” trade deal. Although the framework of a deal has been announced by leaders in both countries—and despite the fact that plans to sign the deal are already being made—Trump’s unwillingness to withdraw any tariffs appears to be a major stumbling block toward actually reaching an agreement.

Trump and his top trade advisor have been quick to shoot down speculation that the “phase one” deal could be the beginning of the end of the trade war. That speculation started on Thursday, when a spokesman for the Chinese Commerce Ministry said both countries had agreed to a reduction in tariffs. But Trump told reporters over the weekend that he had not agreed to any such reduction—a statement that effectively signals Trump’s desire to control the outcome of the negotiations, regardless of what his own trade negotiators might be crafting.

Peter Navarro, Trump’s top trade advisor and an avowed China hawk, slammed what he called “misleading” coverage of the tariff rollback agreement. In an email to multiple media outlets, Navarro said “the story began with a declaration by propagandists within the Chinese government” and that “there was no such agreement,” Politico reported.

It is impossible to tell which side is playing the other—or whether both are merely staking out negotiating positions. But the whole incident strongly suggests that a deal to end the trade war is not imminent, and should lower expectations for what will actually be accomplished within the “phase one” agreement that’s still being hammered out.

A quick check of the scoreboard: The United States has imposed tariffs on about $500 billion worth of Chinese imports since July 2018, with another round of tariffs scheduled to hit in mid-December. If those go ahead as planned, nearly all imports from China (minus a few specific carve-outs) will be subject to import taxes. China has retaliated with tariffs on about $110 billion of U.S. goods and by shifting their purchasing of agricultural goods towards other producers. Both sides are losing.

But if he’s facing a choice between his beloved tariffs and a possible trade deal with China, it shouldn’t be a surprise if Trump decides to stick with the tariffs.

He’s been telegraphing as much since early this year, just weeks after an apparent December 2018 breakthrough in the trade war dissolved. During a January 31 interview with reporters from The New York Times, Trump was asked bluntly whether he would be willing to lift his tariffs on Chinese imports as part of a trade deal.

“Do you think it’s possible that you might still go, even if you reach a deal on all of the points you’re trying to reach, leave some of the tariffs on?” asked Peter Baker, the Times’ White House correspondent. “Is that a possibility?”

“Yeah, sure,” said Trump, after an extended rant about the World Trade Organization. “We have 25 percent now on $50 billion. And by the way, Peter, that’s a lot of money pouring into our Treasury, you know. We never made 5 cents with China. We’re getting right now 25 percent on $50 billion.”

At the time, this seemed like just more evidence that Trump does not understand how tariffs work. The Treasury is not “getting” money from China—the $37 billion in tariff revenue collected since the trade war began have come out of the pockets of American importers, businesses, and consumers—though the tariffs are likely responsible for a slowdown in China’s growth rate, and for disadvantaging the private businesses operating in the shadow of China’s state-controlled economy.

But Trump was clear that, even with a deal that accomplished all of his goals (which remain unclear), he’d keep the tariffs in place.

More than 10 months later, he’s sticking to that position. Another potential breakthrough in the trade war looks to be on shaky ground because Trump is unwilling to budge on his commitment to maintaining tariffs on Chinese imports—the removal of which are, understandably, a major priority for China.

And without an agreement to roll back tariffs, there will be no deal, tweeted Hu Xijin, editor of the Global Times, a Chinese newspaper widely seen as a mouthpiece for the country’s government.

Much of the trade war has been defined by Trump’s misunderstanding of how tariffs work and who pays for them, crossed with his unwillingness to use any other tools to accomplish his trade policy goals.

That ignorance has imposed immense economic costs on American consumers and businesses while failing to reduce how much America imports from China and dragging down U.S. economic growth.

That stubbornness might preclude Trump from being able to reach an agreement that would start to undo the damage.

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