Senate Republicans Sour on Trump as They Try To Save Their Majority

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Earlier this year, Senate Republicans saved Donald Trump’s presidency from a premature end. Now some of those same senators are acting like they don’t think Trump will be around much longer.

“The best check on a Biden presidency is for Republicans to have a majority in the Senate,” Sen. Thom Tillis (R–N.C.) told Politico recently. And now two Senate Republicans are explicitly criticizing the president.

In an interview with the Fort Worth Star-Telegram, Sen. John Cornyn (R–Texas) claimed to have differed with Trump on several issues, including trade, the debt and deficit, and using military funds to build the border wall. Cornyn described his relationship with Trump as an almost strained one.

Similarly, Sen. Ben Sasse (R–Nebr.), in comments leaked to the Washington Examiner, described Trump as someone who “kisses dictators’ butts” and “sells out our allies.” Sasse went out to say that Trump “mocks evangelicals behind closed doors. His family has treated the presidency like a business opportunity. He’s flirted with white supremacists.” And he thinks young people may “become permanent Democrats because they’ve just been repulsed by the obsessive nature of our politics or if women who were willing to still vote with the Republican Party in 2016 decide that they need to turn away from this party permanently in the future.”

These aren’t the only Senate Republicans to speak negatively about the man in the White House. Senate Majority Leader Mitch McConnell (R–Ky.) recently criticized the president’s COVID-19 response, saying at an event in Kentucky that Trump was not “approaching protections from this illness in the same way that I thought was appropriate.”

Unsurprisingly, Trump’s response has been heated. On Twitter, he called “Little Ben Sasse” “stupid and obnoxious” and a “liability to the Republican Party” and urged the senator to “gracefully ‘RETIRE.'”

Tillis, Sasse, Cornyn, and McConnell seem to be expecting a Trump loss, and thus may be preparing to stand as a more traditionally conservative opposition to a Biden administration. And Cornyn and Sasse may be trying preemptively to rehabilitate themselves from Trumpism. Both senators face reelection races, and the latter may have presidential ambitions of his own. While both Cornyn and Sasse are likely to win their elections, the fact that they feel the need to emphasize this message is telling.

There is only so much that words can do here. Both Cornyn and Sasse voted against bringing more witnesses to impeachment. Cornyn claims that he was opposed to using a national emergency declaration to fund Trump’s border wall, but voted against a bill that would have stopped just that.

But even empty rhetoric can have political ramifications. Sasse and Cornyn’s comments could be an early sign of a larger Senate trend.

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Supreme Court Decides to Take a Border Wall Case

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Earlier today, as Jonathan Adler notes, the Supreme Court decided to hear Trump v. Sierra Club, one of several cases involving challenges to President Trump’s diversion of various funds to build his border wall. The Ninth Circuit court decision in this particular case addresses Trump’s efforts to Section 8005 of the 2019 Department of Defense Appropriations Act to use some $2.5 billion in military construction funds to build parts of the wall. It should not be confused with a similar case (also decided by the Ninth Circuit, and involving most of the same parties), which ruled against Trump’s efforts to divert military construction funds by using 10 USC Section 2808, one of a number of powers triggered by Trump’s declaration of a “national emergency” at the southern border.  Unlike the Section 2808 case, the current case does not involve the crucial issue of the scope of presidential “emergency” powers.

As a general rule, a Supreme Court decision to hear a case is not good news for whichever party prevailed in the lower courts (in this case the plaintiffs opposing the border wall). It is certainly possible that the conservative majority in the Supreme Court decided to take the case because they want to overrule the Ninth Circuit on the merits—i.e.  conclude that Trump had the authority to use Section 8005 to divert the funds. But other scenarios are also possible.

In both this case and an earlier, preliminary, Ninth Circuit ruling on the same subject, the lower-court dissenters focused mainly on the procedural argument that the plaintiffs in the case lacked a proper “cause of action” to challenge the funding diversion. This is in fact one of the questions the Supreme Court chose to consider. If they overturn the Ninth Circuit on procedural grounds, that leaves open the possibility that other parties can still challenge the funding diversion and secure a ruling on the merits against it. For example, the US Court of Appeals for the DC Circuit—in a decision written by prominent conservative Judge David Sentelle—recently ruled that the Democratic-controlled House of Representatives has standing to pursue a claim based on constitutional separation of powers grounds.

A ruling on the merits in favor of the administration would be an important victory for Trump. But it could still leave open the possibility that he can transfer funds using Section 8005, but not Section 2808, thereby denying him access to some of the pots of money he wants to use.

Finally, it is possible that the Court took the case because a majority of justices would like to rule against the administration on the merits. In this scenario, the justices might wantto send a strong signal that presidents are not allowed to play fast and loose with the spending power, which properly belongs to Congress.

Many observers seem to assume that this issue will necessarily divide the justices along ideological lines. If so, the plaintiffs are going to lose. But not all the lower court rulings have split in that way. The dissenters in various Ninth Circuit cases on the wall diversion have both been conservative Republican appointees, Judge Daniel Collins in this case and the Section 2808 case, and Judge N. Randy Smith in the preliminary injunction ruling on the current case. On the other hand, the majority in the latter decision included Judge Richard Clifton, a George W. Bush appointee. And, as already noted, prominent conservative Judge David Sentelle authored the recent DC Circuit ruling against the administration in the case  brought by the House of Representatives. Assuming, as is likely, that the three liberal justices will probably vote with the plaintiffs, the latter will need only two conservative “defectors” to prevail.

It is also possible that the whole case will be mooted out before the Supreme Court has a chance to decide it. If Joe Biden wins the presidential election, he is likely to simply terminate the entire funding diversion effort, as he has promised to do.

Otherwise, the Court will have to make some sort of ruling. If they reach the merits, it could set a major precedent on separation of powers and Congress’ authority over federal spending. The stakes in the case go far beyond the specific issue of wall construction. If Trump has nearly limitless authority to divert various  types of construction funds to wall building, future presidents can use the same power to fund all sorts of other projects.

I discussed the broader issues at stake in the wall litigation in greater detail here, here, and here. Some of them are not directly in play in the Section 8005 case. For example, the Section 8005 case does not address the questions of whether Trump can use the power of eminent domain to seize property for the border wall, and whether his declaration of a “national emergency” is legal.

 

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$465 Million Judgment Against Johnson & Johnson Threatens Freedom of Speech

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When an Oklahoma judge ordered Johnson & Johnson last year to pay half a billion dollars as compensation for the harm caused by abuse of prescription opioids, he relied on a definition of “public nuisance” so broad that it could cover nearly any product. Worse, as the Goldwater Institute notes in a brief supporting the company’s appeal to the Oklahoma Supreme Court, his theory of liability was based on statements protected by the First Amendment.

Cleveland County District Court Judge Thad Balkman—who initially ordered Johnson & Johnson to pay Oklahoma $572 million, a judgment he later reduced to $465 million—concluded that Johnson & Johnson had exaggerated the benefits of its pain medications and underplayed their dangers. Yet several of the statements he deemed misleading, including the observation that patients typically do not become addicted to these drugs and rarely die from overdoses, are actually true.

Some claims about pain medication—concerning, for example, the extent of undertreatment, the long-term benefits of opioids for people with chronic pain, and the concept of “pseudoaddiction,” which describes how bona fide patients desperate for pain relief can be mistaken for nonmedical “drug seekers”—are more controversial. Yet taking positions on these issues is not tantamount to commercial fraud. “The trial court characterized legitimate scientific discourse as deceptive,” the Goldwater brief says.

Balkman dismissed the notion that he was punishing Johnson & Johnson for constitutionally protected speech. “I conclude that the speech at issue here is commercial in nature and that it is therefore not protected speech under the First Amendment,” he wrote. That conclusion was doubly wrong, Goldwater says.

First, “commercial speech is protected by the First Amendment.” Although the Supreme Court has said the government has more leeway to regulate commercial speech than it has to regulate other kinds of speech, the restrictions still must meet the test described in the 1980 case Central Hudson Gas & Electric v. Public Service Commission of New York. When speech is not misleading and concerns lawful activity, the Court said in that case, regulations must “directly advance” a substantial government interest, and they must be narrowly tailored, meaning they are “not more extensive than necessary.” Balkman’s conclusion that Johnson & Johnson’s statements are “not protected speech under the First Amendment” therefore relies on his judgment that they were misleading, even when demonstrably true.

Second, the Supreme Court has defined commercial speech as expression that does “no more than propose a commercial transaction.” That description plainly does not apply to general statements about, say, the addictive potential of prescription opioids or the extent to which patients who could benefit from them are denied medication. In the 1983 case Bolger v. Young Drug Products, Goldwater notes, the Court held that “informational pamphlets about medicines” did not qualify as commercial speech, even though “they were created with a commercial motive and addressed one specific product.”

Having concluded that the First Amendment does not apply to Johnson & Johnson’s statements about opioids, Balkman used them to find the company guilty of creating a public nuisance, a concept that no one has been able to satisfactorily define. “Nobody knows what a public nuisance is,” Goldwater says, citing legal scholars who have described it as “vaguely defined,” “poorly understood,” “all things to all people,” a “wilderness,” an “impenetrable jungle,” a “quagmire,” and “a legal garbage can.”

The nebulous nature of “public nuisance” is reflected in the Oklahoma statute that Balkman applied to Johnson & Johnson, which says it “consists in unlawfully doing an act, or omitting to perform a duty, which act or omission…annoys, injures or endangers the comfort, repose, health, or safety of others” or “in any way renders other persons insecure in life, or in the use of property.” The breadth of such definitions poses obvious due process problems, since businesses are not given clear notice of which actions could expose them to massive liability.

The “public nuisance” concept has been deployed, for example, against companies that legally sold lead paint, which became a hazard years later as it flaked off surfaces in homes where it was used; gun manufacturers, because they legally sold firearms that were ultimately used in crimes; and General Motors, because its vehicles contribute to global warming. “Absent objective rules limiting liability,” Goldwater says, “the concept can become a catch-all rule against whatever government officials, or even individual citizens, decide is bad behavior.”

Making drug manufacturers liable for selling products in compliance with federal regulations is not merely unfair to them. It is part of a broader crackdown on pain medication that has denied treatment to legitimate patients while driving nonmedical users into a black market where the drugs are much more dangerous because their potency is highly variable and unpredictable.

The latter effect was apparent in the same trends that Balkman cited to justify his ruling against Johnson & Johnson. As the government succeeded in reducing opioid prescriptions, the upward trend in opioid-related deaths not only continued but accelerated. Illicit drugs now account for the vast majority of those deaths. Balkman, who erroneously claimed that the “current stage of the Opioid Crisis…still primarily involves prescription opioids,” seemed oblivious to that fact.

Balkman likewise dismissed the suffering of legitimate patients who are unable to get the medication they need to relieve their pain. That problem has been aggravated in recent years by ham-handed efforts to reduce opioid prescriptions, as the Food and Drug Administration, the Centers for Disease Control and Prevention, and the American Medical Association have recognized. But in Balkman’s view, any talk about undertreatment is inherently suspect, motivated by nothing but the desire to sell more pain medication. As Goldwater notes, “the trial court concludes that defendants and others broke the law by ‘suggest[ing] pain is undertreated and doctors should prescribe more opioids’—without finding that these things were factually untrue or negligently stated.”

Balkman’s decision quotes Terrell Phillips, a physician who said this during an October 2016 presentation to the Oklahoma State Medical Association: “Everyone here knows how we got in this situation. They told us we were underprescribing. We need to prescribe more. It’s the patient’s rights to have pain medicine, so we all got on board. And when someone said they were hurting, we said, ‘OK, we are going to give you something.’ Now it’s just the opposite. Not everyone deserves pain medicine.”

In Balkman’s view, that quotation reinforces the case that drug companies recklessly encouraged overprescription of opioids. But by implicitly endorsing the new message that “not everyone deserves pain medicine,” Balkman shows a callous disregard for the patients who suffer because other people abuse the medication on which they rely to make their lives bearable.

Similarly, Balkman treats the concept of pain as “the fifth vital sign,” which was intended to address undertreatment, as nothing more than a scheme to line the pockets of companies like Johnson & Johnson. “The phrase refers to the idea that physicians should be as focused on treating pain as they are on treating a patient’s difficulty with breathing, cardiac problems, etc.,” Goldwater notes. “This is a legitimate and humane attitude—quite the opposite of the shockingly inhumane, even cruel, idea expressed in the words the trial court quoted approvingly: ‘Not everyone deserves pain medicine.'”

Some critics argue that the “fifth vital sign” concept contributed to excessive prescribing. But that does not mean the idea, which was backed by the Joint Commission on Accreditation of Healthcare Organizations as well as the American Pain Society, the Institute of Medicine, and the U.S. Veterans Administration, was simply a mercenary scam, as Balkman implies.

Likewise with pseudoaddiction, a concept that was endorsed by the Food and Drug Administration. “Although ‘the concept may have fallen out of favor,'” Goldwater’s brief notes, “it has not been squarely rejected, let alone proven to be a form of deceptive marketing….There is nothing deceptive or unlawful about the scientific community proposing, discussing, studying, and even later rejecting a medical or psychological hypothesis.”

Balkman’s understanding of the speech that can make a company guilty of creating a public nuisance is so broad that it could encompass any participation in scientific or public policy debates by businesses with a financial interest in the outcome. If the National Shooting Sports Foundation expresses skepticism about “assault weapon” bans, for instance, that would count as commercial speech in Balkman’s view and, if deemed misleading, fall outside the scope of the First Amendment. Likewise if a natural gas producer defends fracking, if a carmaker criticizes new fuel efficiency standards, if a chemical company questions claims about pesticide residues on fruit and vegetables, or if a food manufacturer presents evidence that genetically modified ingredients pose no health threat to consumers.

Based on Balkman’s logic, messages like those, which heretofore have been understood as constitutionally protected, could be punished for creating a public nuisance. If so, First Amendment rights will be tossed into “a legal garbage can,” along with the fair notice required by due process.

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Poetry Monday!: “The Jumblies” by Edward Lear

For the rest of my playlist, click here. Past poems are:

  1. “Ulysses” by Alfred, Lord Tennyson
  2. “The Pulley” by George Herbert
  3. “Harmonie du soir” by Charles Baudelaire
  4. “Dirge Without Music” by Edna St. Vincent Millay
  5. “Clancy of the Overflow” by A.B. “Banjo” Paterson
  6. “Лотова жена” (“Lotova zhena”, “Lot’s wife”) by Anna Akhmatova

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No Sealing of Health Care Quality Review Report in Doctor-vs.-Hospital Lawsuit

From Gabros v. Shore Medical Center, decided last week by Judge Noel Hillman (D.N.J.) (emphasis added) (for the backstory on the case, see here):

The Parties seek to seal … a report by the National Practitioner Data Bank (“NPDB”), submitted by Defendant Shore Medical Center on June 18, 2015. This report was a result of the final adverse action taken by SMC to revoke Plaintiff’s clinical privileges.

In 1986, Congress passed the Health Care Quality Improvement Act of 1986 (“HCQIA”), 42 U.S.C. § 11101, et seq. The HCQIA requires that certain information regarding malpractice payments, sanctions, and professional review actions taken with respect to medical professionals be reported to the federal government. 42 U.S.C. § 11131-7. The regulations promulgated pursuant to the HCQIA established the National Practitioner Data Bank to collect and organize information collected under the HCQIA.

The NPDB operates as a centralized clearinghouse for state licensing boards, hospitals, and other health care entities to obtain relevant background information about physicians. Hospitals are required to request information from the NPDB with respect to each physician or health care practitioner who applies for staff membership or clinical privileges. The NPDB makes the information it collects available to “State licensing boards, to hospitals, and to other health care entities (including health maintenance organizations) that have entered (or may be entering) in an employment or affiliation relationship with the physician or practitioner or to which the physician or practitioner has applied for clinical privileges or appointment to the medical staff.” 42 U.S.C. § 11137(a).

Section 11137 also outlines the confidentiality provisions applicable to the information collected under the HCQIA. Specifically, it mandates:

“Information reported under this subchapter is considered confidential and shall not be disclosed (other than to the physician or practitioner involved) except with respect to professional review activity … or in accordance with regulations of the Secretary promulgated pursuant to subsection (a) of this section. Nothing in this subsection shall prevent the disclosure of such information by a party which is otherwise authorized, under applicable State law, to make such disclosure. Information reported under this subchapter that is in a form that does not permit the identification of any particular health care entity, physician, other health care practitioner, or patient shall not be considered confidential.”

As such, unless otherwise provided by state law, all information collected by the NPDB and “reported under this subchapter” is presumed confidential and is only released as specifically mandated by the HCQIA.

The Parties contend that federal law prohibits disclosure of National Practitioner Data Bank reports. The Parties highlight that the purpose of the NPDB and its reports is to improve health care quality, protect the public, and reduce health care fraud and abuse in the United States. According to the Parties, if NPDB reports were available to the public, reporting entities would lose confidence in the NPDB’s confidentiality protections. The Parties argue that this lack of confidence would lead to a decline in voluntary or optional reports regarding problematic officials and would ultimately hinder the reliability and effectiveness of the NPDB in serving its public policy goals.

The Court has closely reviewed the documents the parties ask the Court to seal and does not find a legitimate private or public interest warranting sealing, nor a serious injury that would result from a failure to seal. While there is no doubt a generalized public benefit from a confidential reporting system allowing medical employers to share information about the qualifications of licensed medical professionals, that interest must fall away when those reports are themselves evidence in a matter pending in federal court or any court. The alternative is that medical employers and professionals may generate false or truthful information about each other material to their dispute and the potential claims of injured third parties under a regime where that information never sees the light of day.

It is hard to imagine how that benefits the public at large and begs the question why a federal court should aid in such secrecy absent clear statutory direction. What the parties really envision is a system that always shields the airing of claims of incompetency and malfeasance by medical professionals and the medical institutions that hire them. This lack of transparency and absolute immunity is as likely to cause false reports as it is to foster candor.

Nor does the relevant statute create such an absolute private world immune from outside scrutiny. It is one thing to say that information should be confidential between the parties for regulatory purposes and quite another to say that information can never be revealed when disputes arise over the content of such reports. The only law cited by the parties actually authorizes disclosure for purposes of litigation when the system breaks down as envisioned. See 45 C.F.R. 60.18(a)(1)(v) (allowing use of NPDB reports in medical malpractice litigation where hospital failed to request information from the NPDB).

Moreover, there can be no better example of the overbreadth of the parties’ argument for sealing than this case. Plaintiff’s case hinges on allegations that NPDB reports about him were false and he demands a jury trial. Plaintiff would have his allegations litigated in a star chamber with a jury of ordinary citizens presumably barred from discussing the case after their service in a closed courtroom. There is no precedent for such a proceeding in federal court except in those rare cases which might involve classified information or national secrets and even in those cases redactions and sanitized versions allow for public access.

In sum, the Court is unpersuaded by the parties’ arguments that denying their motion to seal the NPDB reports will have a chilling effect on reporting. Moreover, there is nothing in binding case law or the relevant statute itself expressly forbidding disclosure of these reports in the context of the claims brought by this Plaintiff. Moreover, and perhaps most importantly, this Court has repeatedly emphasized the public interest in the disclosure of materials filed on this Court’s docket, which often outweighs private interests in confidentiality.

This Court is funded by the public and does not sit, in general, to resolve private disputes in secret. Finding that the parties lack a legitimate justification to warrant sealing the identified information, the Court will deny the parties’ joint motion to seal with regard to the NPDB reports….

The court also refused to seal a past opinion in the case:

The Parties argue that because the Court’s Opinion “recites the content of the NPDB and DCA Reports verbatim,” allowing public access to this opinion is “tantamount to allowing the public to review the reports themselves.”

Having reviewed the Court’s June 2019 Opinion, the Court notes that this Opinion does not contain any personally identifiable information or sensitive information that would justify granting the parties’ joint motion to seal. And as the Court has noted, that the Opinion recites certain content from the NPDB and DCA is an insufficient reason to seal it.

Finally, while this Court’s decisions are binding on no one except the parties, the development of the federal case law requires that the reasoning of the Court in interpreting statutes be widely available to be considered by sister courts as persuasive authority or not. The Court’s 52-page opinion discusses the statute of limitations for defamation claims arising from NPDB reports, the scope of immunity under the HCQIA, and the reach of analogous claims under state statutory law.

The development of the law would be stymied if Courts issue secret rulings known only to the parties. In short, because the Court does not make its decisions in secret, the Court finds it is in the public interest to allow the June 2019 Opinion containing the resolution of certain issues in this case to made public….

Despite this decision, the June 2019 opinion remains sealed, presumably as a result of some delay in the Clerk’s Office; I’ll post it as soon as it’s unsealed.

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‘Where Would the Black Lives Matter Movement Be Without the Right To Free Speech?’

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“Where would the Black Lives Matter movement be without the right to free speech?” asks Ira Glasser, the executive director of the American Civil Liberties Union (ACLU) from 1978 to 2001. “There is no social justice movement in America that has ever not needed the First Amendment to initiate its movement for justice, to sustain its movement to justice, to help its movement survive.”

Glasser is the subject of the new documentary Mighty Ira, which chronicles his efforts to secure the speech rights of Nazis, undermine government attempts to regulate internet content, combat hate speech laws, and abolish campus speech codes. It is a portrait of a First Amendment hero who managed to have friends across ideological divides while remaining civil, engaged, and effective.

The 82-year-old Glasser is troubled by his former group’s seeming embrace of identity politics over free speech, and he worries that younger social justice activists view the First Amendment as an adversary rather than an ally. “John Lewis said that without free speech and the right to dissent, the civil rights movement would have been a bird without wings,” Glasser says. “That’s historically and politically true without exception.”

Written by Nick Gillespie. Produced and edited by Paul Detrick.

Neo-Nazis; Credit: Alexandra Buxbaum/ABACAUSA.COM/Newscom; Ira Glasser; Credit: Mario Ruiz/ZUMA Press/Newscom; Neo Nazi marcher; Credit: ID 132745286 © Patrick Morrissey | Dreamstime.com; Black Lives Matter protesters; Credit: Scott W. Grau/Icon Sportswire CBW, Tim Evans/ZUMA Press/Newscom, Adam J. Dewey/ZUMA Press/Newscom; Women’s rights marcher; Credit: Jeff Malet Photography/Newscom; Anti-war activist; Credit: Zach D Roberts/ZUMA Press/Newscom; David Duke; Credit: file UPI Photo Service/Newscom; Eldridge Cleaver; Credit: Underwood Archives/UIG Universal Images Group/Newscom; Supreme court protesters; Credit: Jeff Malet Photography/Newscom; Gay rights protester; Credit: Louis Brems/ZUMA Press/Newscom; AIDS activists; Credit: Frances M. Roberts/Newscom, Ezio Petersen UPI Photo Service/Newscom, Michale Smith UPI Photo Service/Newscom; Civil rights movement; Credits: akg-images/Newscom; ICE protest; Credit: John Marshall Mantel/SIPA/Newscom; Joseph McCarthy; Credit: Everett Collection/Newscom; Richard Nixon; Credit: JT Vintage/ZUMA Press/Newscom; Rudy Giuliani; Credit: Jason Winslow / Splash News/Newscom; Donald Trump; Credit: Paul Hennessy/ZUMA Press/Newscom; Bill Barr; Credit: Jeff Roberson/UPI/Newscom; ACLU legal observers; Credit: Mark Hertzberg/ZUMA Press/Newscom, Lannis Waters/ZUMA Press/Newscom, Alex Milan Tracy/Sipa USA/Newscom, Bill Clark/CQ Roll Call/Newscom; ACLU clients; Credit: GDA Photo Service/Newscom, Pat Vasquez-Cunningham/ZUMA Press/Newscom, Romain Blanquart/MCT/Newscom; Neo-nazis; Credit: Jim De Pree/TNS/Newscom; Unite the Right rally; Credit: Stephanie Keith/Reuters/Newscom; ACLU protesters; Credit: ID 173780741 © Jerry Coli | Dreamstime.com

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Justice Department Prepares for First Federal Execution of a Woman Since 1953

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It has been nearly 70 years since the federal Bureau of Prisons executed a woman. That will change in December if Attorney General William Barr gets his way.

The Department of Justice announced Friday that Lisa Marie Montgomery, 52, will be executed via lethal injection on December 8. Montgomery was convicted in 2007 of choking a pregnant woman to death in 2004, then cutting the baby out of the victim’s body so she could pass it off as her own.

Montgomery traveled from Kansas to Missouri and kidnapped the victim, Bobbie Jo Stinnett, making the murder a federal crime. A jury unanimously recommended a death sentence.

Until this year, the Federal Bureau of Prisons’ death chamber had been silent, with no federal executions since 2003. But last year Barr announced that he was reinitiating protocols and resuming executions. These executions began in July, with three prisoners dying over the course of a single week.

So far, Barr’s Justice Department has had seven inmates executed, all of them male. Two other men have been scheduled for execution (one in November and one in December). This administration has set a modern record for federal executions.

If the Bureau of Prisons follows through with Montgomery, she’ll be the first woman executed by the federal government since 1953. Bonnie Brown Heady was put to death in December 1953, as was her partner in crime, Carl Austin Hall, for kidnapping and murdering a 6-year-old boy they had taken for ransom. Heady’s execution came on the heels of the much more famous execution of Ethel Rosenberg, electrocuted in June (along with her husband, Julius) for spying and leaking American military secrets to the Soviet Union.

The descriptions of Montgomery’s crimes are brutal, as has been the case for pretty much all of the men executed as well. The circumstances of Montgomery’s crimes also show what experts have stated was serious mental illness. According to her family and attorneys, Montgomery was a victim of severe abuse, raped repeatedly by her stepfather while she was a teen, and subjected to physical violence that might have left her brain damaged. She also had a history of claiming to be pregnant when she was not. (She had tubal ligation surgery in 1990 and could not get pregnant.) A lot of this family information was not provided to the jury during her sentencing phase; her appeals team uncovered it after her sentencing.

While Montgomery’s background is no excuse for murder, it should raise some red flags. There is little deterrence in executing an inmate whose murder motives are bizarre and clearly a sign of mental illness. Killing Montgomery does not make the United States any more safe or just than simply leaving her in federal prison to live out the remainder of her life.

If the Department of Justice succeeds in completing all of its executions planned out for the end of the year, Trump over the course of just six months will have tied the number of federal executions—10—carried out under President Harry S. Truman across his two terms. President Franklin D. Roosevelt will still have Trump beat by six.

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Who Should Libertarians Vote for in 2020? A Soho Forum Update

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In July, the Soho Forum hosted a three-way debate asking the question “Who should Libertarians Vote For in 2020?” George Mason Law Professor Ilya Somin made the case for Joe Biden, chair of the Libertarian Party in Los Angeles Angela McArdle argued for Jo Jorgensen, and attorney and Manhattan Contrarian blogger Francis Menton defended Donald Trump.

A lot has changed since July, and with the election now less than three weeks away, the Soho Forum hosted another event in which those same three libertarians updated their arguments for their preferred candidates.

None of the participants have changed their minds on who to vote for, but they all agree on one thing: The stakes have gotten higher.

Somin blogs at The Volokh Conspiracy and has written Democracy and Political Ignorance: Why Smaller Government Is Smarter and Free to Move: Foot Voting, Migration, and Political Freedom.

McArdle is the chair of the Libertarian Party of Los Angeles and the author of The Communist Cookbook: Delicious Dining for the Modern Marxist.

Menton blogs at Manhattan Contrarian and is a retired partner in the Litigation Department and co-chair of the business litigation practice group Willkie Farr & Gallagher LLP in New York.

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Americans Are Moving Where They Want. Will It Be a Win for Choice or Polarization?

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Get outta town! Seriouslyif you started this year as a resident of one of America’s megalopolises, there’s a good chance that you’ve at least considered leaving, whether or not you followed through. In the midst of a pandemic that has closed or restricted access to so many of the things that make otherwise crowded and expensive cities enjoyable while simultaneously normalizing the practice of working from home, people are on the move. Data shows Americans flowing from places where they had to live to places where they want to reside.

This mobility is one of the few upsides of the COVID-19 eraa victory for choice in how and where people settle down. It’s also, however, an acceleration of decades of sorting that has seen us separate into tribes based on living habits and culture. Given that lifestyle correlates so closely with political affiliation, the victory for choice could mean even greater political polarization in the years to come.

Even before the great viral apocalypse of 2020, Chicago, Los Angeles, and New York were losing population to other areas, especially in the South and Southwest. But the trend has accelerated and spread during the pandemic.

“Fresh data from LinkedIn’s Economic Graph team shows that smaller metro areas are gaining, some famous big cities are slipping, and hints of de-urbanization can be found across the country,” George Anders wrote for LinkedIn at the end of September. “In the most striking switch, two giant metro areasNew York and the San Francisco Bay Areaaren’t coveted destinations anymore.”

Among the reasons he cited for the urban exodus are that “theaters are closed, nightlife has dwindled and even a walk along prime shopping streets isn’t effortless anymore.”

Anders spoke with the owner of a relocating firm and found that “lower costs and growing acceptance of a work-anywhere attitude in response to pandemic dislocations helped spur that decision.”

Likewise, United Van Lines, one of the country’s leading movers, this month “revealed higher outbound move requests from New York City and San Francisco as compared to nationwide averages” with life changes wrought by the pandemic as a major motivator.

The company cited one customer saying that “the slower pace of life brought on by COVID-19 caused us to re-evaluate what was important to our family.” Another told the company that “given the remote environment and projected vision of remote working condition, our family opted to move out of the city to a beach location with a smaller footprint and less stressful (and) busy community.”

Paula Campbell Roberts, an analyst for the investment firm KKR, believes “rhetoric around the ‘great urban exodus’ is likely overblown,” but only in an absolute sensethat is, she doesn’t see Americans moving back to the farm. Instead, people and businesses are dispersing to a variety of destinations. “COVID has only accelerated the growth of medium-sized cities, as well as exurbs and suburbs near gateway cities. Amid growth in southern and medium-sized cities nationally, the locus of economic activity should disperse among multiple metropolitan nodes beyond gateway cities.”

Too many of these moves are done out of financial desperation as social distancing and lockdown orders choke businesses and kill jobs. Moving back home with your parents because there’s no money for rent isn’t something that most adults want to do.

On the other hand, working remotely has achieved new acceptance among employers and is a major draw for job-seekers. That means an explosion in possibilities for people in work that can be done remotely, who are increasingly able take jobs that are physically located in one place while we live in another.

“The places where Americans are moving in the midst of COVID-19 may finally be expressing a more fundamental preference for how they really want to live instead of where they have to stay because of their job location or where their kids go to school,” Peter Lane Taylor noted for ForbesLife. “COVID is accelerating demographic trends that were already in place before the pandemic, especially when it comes to businesses seeking places to expand that are pro-growth, low-tax, politically stable, and stacked with an educated work force in advanced degrees.”

Put another way, the pandemic is speeding-up Americans’ decades-old shift toward places where they feel comfortable and can live the lifestyles that appeal to themwhat the author Bill Bishop calls The Big Sort in his book of that name. And, it turns out, political views correlate closely with lifestyle preferences.

“In what may seem like stereotypes come to life, a new Pew Research Center study on political polarization finds that conservatives would rather live in large houses in small towns and rural areasideally among people of the same religious faithwhile liberals opt for smaller houses and walkable communities in cities, preferably with a mix of different races and ethnicities,” Pew Research reported in 2014.

Once in communities of people with shared hobbies, values, and ideologies, we amplify each other’s identities. “The self-reinforcing dynamics of homophily and influence dramatically amplify even very small elective affinities between lifestyle and ideology, producing a stereotypical world of ‘latte liberals’ and ‘bird-hunting conservatives’ much like the one in which we live,” researchers find.

That gets even more self-fulfilling, since “fully half of consistent conservatives, and 35% of consistent liberals, say it’s important to live in a place where most people share their political views,” according to Pew.

The pandemic-accelerated changes in American life, then, are simultaneously giving us more of what we wantlife where we like, choosing from a menu of remote jobs, and doing what makes us happy among like-minded neighborseven as it puts as at ever-greater odds with those who have different preferences.

The solution to the “problem” created by this explosion of choices seems obvious: Encourage local control so that like-minded people can run things their own way without worrying about the disapproval of people who live and think differently. We can live separately and even scoff at one another without being at each other’s throatsif we can leave each other alone.

But that may be too sensible for modern Americans. Amidst a beneficial, though accidental, bonanza of living options created as a byproduct of the pandemic, we may insist on finding grounds for more conflict rather than a source of shared happiness.

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You Can’t Always Trust What You Hear Online, and Congress Has Some Ideas About Fixing That

rumor

The hearings had been underway for about an hour and 15 minutes when Rep. Raja Krishnamoorthi piped up with an idea. “Are there ways,” the Illinois Democrat asked, “that we might be able to infect…the QAnon conspiracy web with other ideas or stories that could sow confusion and discord and cause it collapse in on itself? In other words, kind of embed other crazy things that might pit groups against each other?”

There was a brief pause. Then Joan Donovan, research director at Harvard’s Shorenstein Center, offered an objection. Algorithmic recommendation systems “respond to that sort of excitement,” she noted, and Krishnamoorthi’s operation might just keep the QAnon conversation alive.

It was October 15, and Donovan was one of four witnesses testifying via video call to the House Intelligence Committee. She was joined by Cindy Otis, a former CIA officer now based at the Alethea Group; by Melanie Smith, who works at the social media analytics firm Graphika; and by Nina Jankowicz, a Wilson Center analyst with the wonderful job title “disinformation fellow.” The hearing was titled “Misinformation, Conspiracy Theories, and ‘Infodemics’: Stopping the Spread Online,” and much of it was given over to discussing what public regulators and private platforms should do about the dubious claims that circulate on social media.

Early in Donovan’s testimony, for example, she quoted a statement Facebook issued in January: “In the absence of regulation, Facebook and other companies are left to design their own policies. We have based ours on the principle that people should be able to hear from those who wish to lead them, warts and all.” Donovan didn’t approve of that approach. “Policies like this push corporate responsibility onto the public and onto other professional sectors,” she complained. As a result, she argued, reporters and others have been left to clean up social media’s messes. “Covering misinformation is a drain on newsrooms’ resources, which could be much better spent on sustaining journalism rather than moderating content on platforms.”

This seems backward to me. Factchecking politicians and chasing down rumors to confirm or debunk them have always been parts of a journalist’s job. Reporters don’t always do those tasks well, but they’re much more likely to get it right than a Facebook moderator is. In my dream world, communicating on social media would typically be as unhindered as communicating on email, and moderators’ scarce attention would be reserved for genuinely abusive behavior, such as violent threats, organized harassment, and commercial fraud.

But that’s my view. The mood at the hearing was much more enthusiastic about centralized control of information, in part because so many people speaking there seemed convinced that we’re in an unprecedented crisis. Otis claimed that we live in “the biggest period of false information in history.” Jankowicz suggested that “the degradation of our information ecosystem” is “dismantling democracy.” Rep. Adam Schiff (D–Calif.), chairing the meeting, announced his hope that Americans one day will “occupy the same shared reality again.” Note that last word: again. I’m not sure when this Edenic past was supposed to be when Americans all shared the same mental universe, but it definitely wasn’t during my lifetime.

No one unveiled a 10-point plan for regulating mis- and disinformation, and I’m not sure the four people testifying—let alone the nine legislators asking them questions—would agree on every aspect of what should be done. (Smith, to her credit, noted that trying to “contain” a conspiracist community ran the risk of “compromising essential freedoms.”) But we did get some hints about potential policies, and I don’t just mean Krishnamoorthi’s COINTELPRO-on-shrooms plan to subvert QAnon by making it even crazier. Notably, both Donovan and Jankowicz said they’d like officials to create a new government agency. Donovan said this bureau could “evaluate what [misinformation’s] actual impact is on other sectors and on our information economies and then come up with recommendations.” Jankowicz went further, suggesting the agency could either “create a new set of rules or see if the rules that [platforms] created for themselves are being enforced fairly.”

Donovan also offered a comparison to the regulation of tobacco, saying that “legislation about smoking had to move beyond the rationale that it was an individual choice and accept that second-hand smoke had public health effects.” There just might be some constitutional problems with treating conspiracy theories like second-hand smoke.

The afternoon’s one voice of skepticism was Rep. Jim Himes, a Connecticut Democrat. (All the legislators present were Democrats—the committee’s Republicans all opted not to show up.) “We’ve had misinformation and yellow journalism and terrible media and voter suppression forever,” Himes pointed out. Were the witnesses really sure, he asked, that the ill effects they were attributing to the internet “wouldn’t have happened without the social media misinformation?”

Jankowicz insisted that the Facebook era really is different, but neither of the examples she offered was very persuasive. One was the allegation that “the Trump campaign used Cambridge Analytica data to selectively target black voters with voter suppression ads.” That’s an odd story to cite when talking about misinformation’s real-world effects, since more and more evidence suggests that Cambridge Analytica was better at marketing itself than at actually changing elections’ outcomes.

Jankowicz’s other example was the band of militiamen charged with plotting to kidnap Michigan Gov. Gretchen Whitmer. Social media, she said, both “played a huge role in allowing that group to organize” and “seeded the misinformation that led them to organize.” But paramilitary cells were hatching violent plans long before Facebook existed—and the FBI has said that it was through social media that it learned of the Michigan plotters’ discussions in the first place. So did these platforms nurture a conspiracy that wouldn’t otherwise have existed, or did they undermine a conspiracy that otherwise might have gone farther? (And was that alleged plot really “seeded” by “misinformation”? These guys may well have believed some false rumors about COVID-19—there are plenty of those floating around, as there always are during an epidemic—but I suspect their resentment of Whitmer’s corona restrictions are rooted more in a different set of opinions than a different set of facts.)

Himes was also the one member of the committee to raise the subject of civil liberties. “Maybe it was growing up in Latin America in the 1970s,” the congressman said, “but I had a pretty up close and personal experience with governments that fought ‘misinformation.'” This background, he continued, made him “violently allergic” to getting the government involved in the information management business, and it also made him wary of pressuring private companies into doing the government’s dirty work for it. “We understand that we shouldn’t be in the business of fighting misinformation—that’s probably inconsistent with the First Amendment,” he said. “So what do we do? We ask that it be outsourced to people that we otherwise are pretty critical of, like Mark Zuckerberg and Jack Dorsey. We say, ‘You do it.’ Which strikes me as a pretty lame way to address what may or may not be a problem.”

Jankowicz responded by reassuring Himes that she didn’t support anything like the “draconian ‘fake news’ laws” that have been adopted in several authoritarian countries. But she roused his civil libertarian instincts again a little later, when she said that social media allows potentially violent groups to organize “without any oversight.”

“I’m out of time,” Himes replied with regret. “I would love to continue this conversation and pursue what you mean by groups being formed, quote, ‘without oversight.’ That also is language I’d like to better understand.” You’re not the only one, congressman.

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