Tag: hit&run

Massachusetts alcohol buyers could see a tiny measure of relief from the state’s overbearing prohibition on retail alcohol discounts if a bill introduced earlier this year becomes law. But a powerful lobby group is pushing back.

The proposed reform centers on a Massachusetts law that requires licensed alcohol retailers to file “a schedule of minimum consumer prices for each such brand of alcoholic beverages” with the state. That law also prohibits sellers from beating those scheduled prices. “No licensee authorized to sell alcoholic beverages at retail for off-premises consumption shall sell, offer to sell, solicit an order for, or advertise, any alcoholic beverages at a price less than the minimum consumer resale price then in effect,” it states.

Practically, that means “Massachusetts law prohibits retailers from selling alcoholic beverages for ‘less than [the] invoiced cost,'” the beer information site Brewhound explained earlier this year in a piece on a lawsuit challenging the minimum-price requirement. “The state defines ‘cost’ as the ‘net cost appearing on the invoice for’ an alcoholic beverage.”

The minimum-price requirement is awful. But the proposed reform, sponsored by State Rep. Ted Speliotis (D–Danvers), wouldn’t eliminate it. Instead, it would simply allow stores to offer coupons to customers, which state law also currently prohibits.

“One may ask, why offer the coupons when the store can simply discount the product—as long as it does not fall below the list price?” Speliotis—who represents the town where my parents lives—wrote in a Boston Globe op-ed this month promoting his bill. “The answer is quite simple: Coupons would allow owners to increase their base of customers by introducing more people to their stores and products through advertising.” Speliotis also notes Chinese restaurants, pizza parlors, and other small, local businesses often use coupon mailings to stimulate business.

Large retailers in the state support the reform bill. One of those retailers, Total Wine, found its low prices ran afoul of the Massachusetts rules. Total Wine’s “crime,” reported the Everett Independent in 2017, is that “they’re giving deals that are too good.” Heavens.

But “packies“—as independently owned retail liquor stores across Massachusetts are known—oppose Speliotis’s measure.

In a counterpoint that ran in the Globe alongside Speliotis’s piece, Robert Mellion, who heads the packies’ lobby group, argues even this minimal reform would open the floodgates for access to cheap alcohol, which he opposes.

Citing a Prohibition-era study, Mellion argues the Massachusetts law exists because alcohol discounts before Prohibition—100 years ago—spurred “poverty, widespread alcoholism, and reduced worker productivity.”

Speliotis, whose efforts to legalize alcohol coupons failed last year, rightly isn’t buying those tired claims.

“The argument was, if we make it too easy for the consumer, they’ll drink too much,” Speliotis said earlier this year after he’d introduced the coupon bill. “But society has changed, and we’re the only state that still imposes this kind of restriction.”

Supporters of the booze-discount ban claim it levels the playing field for small mom-and-pop stores that might otherwise not be able to compete.

That argument is also shortsighted and likely incorrect. If mom-and-pop packies don’t face pressure from large in-state sellers, then they’ll simply feel that same pressure from outside the state. That’s the current reality. New Hampshire’s state-owned liquor stores (that’d be a whole different column) offer better prices than their private Massachusetts competitors, even including special discounts to thank the out-of-state buyers who make up half their sales.

(And if you’re willing to put aside for a moment the crappiness of government-owned liquor stores as both concept and shopping experience, New Hampshire’s periodic trolling of Massachusetts lawmakers is amusing.)

As I’ve long decried, Massachusetts has prohibited bars and restaurants from offering drink discounts for more than three decades. So maybe it’s not a huge surprise that a state that bans happy hour would also prohibit liquor stores from offering similar discounts.

The fact even the very modest reform State Rep. Speliotis has proposed is facing such powerful opposition is a testament to the very messed up state of alcohol regulation in Massachusetts. Protecting packies at the expense of its consumers is an awful policy that ensures the vestiges of Prohibition are alive and well in Massachusetts.

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12/21/1922: Justice Pierce Butler takes oath.

 

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Are we there yet? Probably.

As I noted in an earlier post, because the Democratic leadership has decided to sit on the articles of impeachment that were adopted by the House majority, there is now a bit of a debate on the question of whether President Donald Trump has actually been impeached yet. Not much turns on that question since Trump retains all the powers of the office of the president up until the moment he is convicted in a Senate impeachment trial. But the answer to that question turns out to be less obvious than one might expect.

The answer matters more in the states, where some constitutions provide for the suspension of an officer upon his impeachment. As I noted, a Florida court once thought, at least, that the officer is not impeached until representatives of the lower chamber actually appeared in the upper chamber and levied charges against an officer. The Florida court pointed to English and American practice in support of that interpretation of what it means for the House to impeach someone.

The Florida court was probably right about the federal practice up until that point in 1868. But congressional practice has changed.

When the House contemplated its first impeachment, of Senator William Blount in 1797, there was a fair amount of uncertainty about how it should do it. Legislators looked to the English Parliament to try to figure out how the process worked and did their best to follow along.

Notably, that meant passing a resolution in the House designating someone to walk over to the Senate and impeach Senator Blount. The Senate Journal records that a message had been received from the House to be delivered by Representative Samuel Sitgreaves, to wit:

Mr. President: I am commanded, in the name of the House of Representatives, and of all the people of the United States, to impeach William Blount, a Senator of the United States, of high crimes and misdemeanors; and to acquaint the Senate, that the House of Representatives will, in due time, exhibit particular articles against him, and make good the same.Mr. President: I am commanded, in the name of the House of Representatives, and of all the people of the United States, to impeach William Blount, a Senator of the United States, of high crimes and misdemeanors; and to acquaint the Senate, that the House of Representatives will, in due time, exhibit particular articles against him, and make good the same.

The House had commanded Sitgreaves to go to the Senate and impeach Blount. Once that was done, then the Senate could send notice to Blount that he had been impeached and could prepare for trial. The House would draft and exhibit in the Senate articles of impeachment later.

This was the form that the House used to impeach officers all through the nineteenth century. The form was the same when the House impeached judges, a justice, a cabinet member, and a president. In 1904, the Senate sergeant-at-arms announced the presence of a member of the House who

In obedience to the order of the House of Representatives we appear before you, and in the name of the House of Representatives and of all the people of the United States of America we do impeach Charles Swayne, Judge of the district court of the United States for the northern district of Florida, of high crimes and misdemeanors.

The Senate was further informed that “in due time” the House would “exhibit articles of impeachment” and “demand that the Senate shall take order for the appearance of the said Charles Swayne to answer the said impeachment.”

That was the last time the House used this form of impeachment. In 1912, the Senate Journal records a rather different message from the House. At that time, the House instructed its chief clerk to send a written message to the Senate which was then entered into the record of the upper chamber. The clerk was “directed to communicate to the Senate”

Resolved, That a message be sent to the Senate to inform them that this House has impeached, for high crimes and misdemeanors, Robert W. Archbald, circuit judge of the United States.

The Senate was merely notified that the House had already impeached Judge Archbald and informed that a set of named managers had been appointed to exhibit before the Senate articles of impeachment. Subsequently the House likewise adopted resolutions specifying that an officer “is impeached,” as it did with President Bill Clinton in 1998, and then sent a written message to the Senate informing the upper chamber that an impeachment had occurred and demanding that the Senate convict and remove the officer in question.

Up through 1904, an impeachment was an act performed by the House on the floor of the Senate. Since 1912, the Senate hears about an impeachment in the past tense.

If we take the House practice as decisive, then President Trump could credibly claim to have not yet been impeached and could enjoy that status until the House sends one of its members to the Senate to impeach him—if this were 1868. But since the early twentieth century, the House has uniformly adopted a different practice. It has declared that an officer is impeached at the moment of the House vote and then just sends the paperwork over to the Senate letting them know what has happened.

Sorry, Mr. President, you’ve been impeached. Probably.

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In last night’s Democratic presidential debate, Mayor Pete Buttigieg warned Sen. Elizabeth Warren (D–Mass.) against “issuing purity tests you cannot yourself pass.” He was talking about the senator’s millionaire status, but his statement applies just as much to her education plan. 

The plan, released on October 21, is radically anti-choice. It calls for ending federal funding for public charter schools, banning for-profit charter schools, increasing regulations for all charter schools, and making it more difficult to start new charter schools. Warren she wants to stop private school choice programs such as vouchers or tuition tax credits.

At last night’s debate, Warren declared her desire to “do even more for our public schools” with a “historic $800 billion investment.” Though the phrases “charter school” and “school choice” did not come up onstage last night, Warren solidified her anti-choice stance in a previous debate when she said “money for public schools should stay in public schools, not go anywhere else.” And she told the president of the National Education Association last month that families should stay put in their failing public schools.

That was a purity test that Warren and her family cannot pass. In October, I discovered that Warren sent her son to elite private schools starting in the fifth grade. Less than a month later, Warren was caught on video speaking misleadingly to a voter about her decision to send him to private schools.

The next generation of the candidate’s family has continued to benefit from private education. Warren’s three grandchildren attended last night’s debate, and at least two of them attended an elite private school in Los Angeles. According to the school’s online newspaper, Octavia Tyagi graduated from Harvard-Westlake School earlier this year. Lavinia Tyagi is currently a freshman at the same school. The tuition at Harvard-Westlake School is $39,700, so a full high school education at Harvard-Westlake costs over $158,000 in tuition alone. According to Niche, a website that grades schools, Harvard-Westlake School is the second-best private high school in the state and the sixth-best private high school in the nation. 

So Warren’ daughter and son-in-law have chosen to send their kids to an elite private school, just as Warren chose to send her son to one. And that’s fine! Parents should pursue what’s best for their kids. If that means pulling them out of the public schools to get a better education elsewhere, they should have every right to do that.

The problem comes when politicians like Warren try to deny that opportunity to parents who do not have as much money as they do. All families, not just the rich and powerful, should be able to send their children to the schools of their choice.

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A supervised release condition in at least two Northern District of Texas cases involving computer-based sex crimes (emphasis added), though I expect that it’s been used in others as well:

In addition the defendant shall: …

not use or possess a web cam or any other hardware that allows for the exchange of video or photographs online;

participate and comply with the requirements of the Computer and Internet Monitoring Program, contributing to the cost of the monitoring in an amount not to exceed $40 per month. The defendant shall consent to the probation officer’s conducting ongoing monitoring of his computer/computers. The monitoring may include the installation of hardware and/or software systems that allow evaluation of computer use. The defendant shall not remove, tamper with, reverse engineer, or circumvent the software in any way. The defendant shall only use authorized computer systems that are compatible with the software and/or hardware used by the Computer and Internet Monitoring Program. The defendant shall permit the probation officer to conduct a preliminary computer search prior to the installation of software. At the discretion of the probation officer, the monitoring software may be disabled or removed at any time during the term of supervision;

not use or possess any gaming consoles (including, but not limited to, Xbox, PlayStation, Nintendo), he/she shall not download, possess, and/or install copyrighted material, or devices, without prior permission from the probation officer ….

The problem, of course, as the Fifth Circuit put it last week in U.S. v. Montanez, is that this “would restrict Montanez from purchasing any published book at all.” But that’s not the half of it: It would require Montanez to get permission to pick up any newspaper or magazine, or possess any recorded music, or hang any print or poster on his wall, or receive virtually any e-mail, or for that matter write virtually any handwritten note to himself. (OK, if you want to be pedantic, Montanez wouldn’t need permission to possess really old books that are now in the public domain.) Thankfully, even the prosecution agreed this was invalid, and agreed that the condition “should be narrowed to require [defendant] to obtain permission to play electronic games that allow Internet communication.”

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President Donald Trump is expected to sign a bill into law today that will bar the federal government and its contractors from asking about the criminal history of a job applicant prior to the extension of a conditional offer of employment.

The Fair Chance Act, which was tucked into the massive defense spending bill passed by Congress earlier this week, was part of a national campaign by criminal justice advocacy groups and like-minded lawmakers to “ban the box”—referring to the question on job applications about whether one has been convicted of a crime—and reduce barriers to employment for an estimated 70 million Americans with criminal records.

“After many fits and starts, we are finally about to give formerly incarcerated individuals a second chance by eliminating a major hurdle they face when job-searching,” Sen. Cory Booker (D–N.J.), one of the bill’s cosponsors, said in a press release. “This legislation will immediately change lives by allowing thousands of qualified people with criminal records to more meaningfully integrate into life outside prison walls.”

The law was supported by a bipartisan group of criminal justice organizations. Holly Harris, the executive director of Justice Action Network, said it will open “tens of thousands of federal government and contracting jobs to people who have made mistakes, but just need a chance to get a foot in the door to present their skills and qualifications.”

According to the National Employment Law Project, 35 states and more than 150 cities have passed similar legislation, including red states like Georgia, Kentucky, and Oklahoma. Thirteen states extend those hiring requirements to private businesses.

Of course, while government should set an example for hiring practices it wishes others to follow, coercing private businesses to do so is not the preferable solution. Several major companies have voluntarily instituted “fair-chance” hiring practices, such as Walmart, Target, Home Depot, and Koch Industries.

In a statement, Kanya Bennett, senior legislative counsel for the American Civil Liberties Union, said the passage of the Fair Chance Act eliminates “a significant obstacle to employment faced by those reentering society from our broken criminal legal system.”

“More than 70 million people in the United States have an arrest or conviction record that shows up in a criminal background check,” Bennett continued. “This forces one in three prospective employees to check the box when applying for jobs.”

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Few things manage to escape controversy in these polarizing times, and Starbucks’ “holiday cups” are no exception.

Since 2015, the Seattle-based coffee company has come under fire for putting out seasonal drink containers that aren’t Christmasy enough, or maybe are a little too gay. As Eater has exhaustively documented, everyone from Very Online evangelicals to Donald Trump has declared the secular vessels a weapon in liberal America’s War on Christmas.

Yet it is progressive Minneapolis, not some Bible Belt redoubt, that has banned the cups entirely.

Granted, that isn’t what it set out to do.

In 2015, the city passed its Green To Go ordinance, which aims to increase the amount of commercial waste that is recyclable or compostable. The law has been phased in over time, and in April 2019 the city officially excised an exemption it had carved out for cups containing polyethylene. The common petroleum-based plastic is used as a liner in coffee cups to make them waterproof.

A spokesperson for Starbucks tells Reason that the company reacted to the new Minneapolis requirements by switching to to-go coffee cups lined with polylactic acid, a bioplastic typically made from corn-starch. But these cups were only available in plain white.

So the company didn’t roll out its red and green holiday cups in Minneapolis. Coffee drinkers looking for a little Christmas cheer with have to look elsewhere, or perhaps drive out to the suburbs for their lattes.

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the podcast: Seattle’s homeless sweeps, donor privacy, and housing vouchers. (Apple users, click here.)

• Between 2004 and 2013, Massachusetts drug lab chemist became heavily addicted to basically everything under the sun, stealing laboratory standard samples and evidence submitted for testing, and using drugs at work on a daily basis. After this came to light, more than 11,000 convictions based on her testing were dismissed. Allegation: I’m one of those guys, and this never would have happened if her supervisor had done his job, like following up when he discovered that tons of standard samples were missing. First Circuit: Qualified immunity.
• Jury nullification—in which jurors vote against convicting a criminal defendant if they deem the law in question unjust—predates the Battle of Runnymede (see page 13), is perfectly legal, and is a thorn in the side of prosecutors. But, per the Second Circuit, courts may not encourage nullification, which means a defendant may not argue for it. This despite an amicus from the district court judge who allowed it below.
• Perhaps you’ve listened to last week’s three-minute oral argument (regarding the constitutionality of sponsor requirements for bar applicants) that culminated in an attorney being escorted out by security. Well, the Second Circuit quickly turned around its decision, and the attorney did not prevail. (The district court’s decision is a bit more thorough.)
• Immigrant renounces gang life in prison, says he will face torture, murder if he’s deported back to El Salvador. Immigration court: Too bad. You committed an aggravated felony. Third Circuit: Point of fact, he did not. More egregiously, though, the immigration court ignored precedent and applied incorrect standards. Judge McKee (concurring, with the rest of the panel): Indeed, the court was more focused on ensuring he is deported rather than acting “as the neutral and fair tribunal it is expected to be.”
• Allegation: The methods and means that will be used to conduct the 2020 census will lead to the undercounting of minorities, which violates the Enumeration Clause. District Court: You cannot know that till after the census, so this is not a ripe claim. Fourth Circuit: The methods and means are part of the final “Operation Plan” of the Census Bureau and delayed adjudication will harm the plaintiffs, so their claim is ripe.
• Fifth Circuit: When is a tax not a tax? When—like the ACA’s penalty for failure to buy health insurance—the tax rate gets lowered 0%. And if something ceases to be a tax, it can’t very well be a constitutional exercise of the taxing power, now can it? As for what this means for the rest of Obamacare, we’ll let the district court take the first crack at that. Dissent: If people who buy insurance pay $0 in penalties, and people who don’t buy insurance pay $0 in penalties, where’s the injury needed for standing?
• At a 2016 Baton Rouge, La. protest against police brutality, an unidentified person lobs a heavy object that knocks out a cop’s teeth, causes facial and brain injuries. The officer sues, among other things, the hashtag #BlackLivesMatters. District court: That is not an entity one can sue. Fifth Circuit (April): But the officer can sue a protest leader for negligently organizing a foreseeably violent protest. Fifth Circuit (August): The officer’s suit can still proceed, but here’s more First Amendment analysis. Fifth Circuit (December): The suit can still proceed, but one judge has had a change of heart and now dissents. (A cert petition is pending.)
• In 2018, Mississippi passes a law that essentially banned abortion after 15 weeks’ gestational age. Fifth Circuit: Yeah, that’s obviously foreclosed by Supreme Court precedent. Concurrence (Judge Ho): I’m compelled to agree, but a district court crosses the line when it calls the state’s interest in women’s health “pure gaslighting,” “equates a belief in the sanctity of life with sexism,” and “smears Mississippi legislators by linking [the law] to the state’s tragic history of race relations, while ignoring abortion’s own checkered racial past.”
• Like most states, Illinois has limits on political contributions. But in an unusual twist, if a candidate self-funds more than $250,000 in a statewide race, or $100,000 in any other race, or if an independent-expenditure group or individual spends more than those limits, Illinois law removes all contribution limits in that race, including for corporations and unions. Liberty Principles PAC: But not independent-expenditure groups like us, who have a $0 contribution limit. That sure seems like it should violate the First Amendment. Seventh Circuit: Nope. If a candidate receives a million dollars from Exxon or the AFL-CIO, that’s one thing. But if that candidate gets money from an independent-expenditure group—which is required to disclose donors at the same threshold as PACs that are allowed to make unlimited contributions—that might look shady.
• Religious high school installs $235k in lights on their baseball field after getting the OK from Kirkwood, Mo. city planner. Oopsie! The city planner mistakenly thought the field already had lights and that the new lights were grandfathered in. After neighbors complain, the city approves the use of lights subject to conditions that make them essentially unusable. The school sues. Eighth Circuit: Having to play baseball during the day may be inconvenient, but it does not substantially burden any religious exercise. However, the state’s religious freedom law is a bit of a mystery, so we’ll let you refile that claim in state court.
• Prison Legal News, a monthly magazine that helps inmates navigate the criminal justice system, has subscribers at a Colorado “Supermax” prison that houses Ted Kaczynski, Dzhokhar Tsarnaev, Eric Rudolph, and a host of other baddies. Between 2010 and 2014, prison officials reject the distribution of 11 issues of the magazine that contain information on the prison’s inmates or staff. PLN files suit. Officials (eventually): We’ve distributed the issues, officially changed our policy, and sworn under oath that this won’t happen again. Tenth Circuit: And when the gov’t takes steps like that—which we outline in a neat chart on page 11—your case is moot.
• A reminder from the Tenth Circuit: Even if Tulsa, Okla. police allegedly coerce you into a false confession, you will lose your lawsuit if you do not properly cite the record. “[Plaintiff’s] error wasn’t merely technical. The district court might have discovered the pertinent part of the testimony only by trudging without guidance through 1540 pages of exhibits.”
• California cannabis grower is now locked up in Colorado, as peddling pot, though legal in California, is still illegal under federal law. The grower: But Congress banned the feds from spending money to enforce marijuana laws when it’s state-legal. Which means the feds can’t pay to keep me in prison. Tenth Circuit: You can make that case to a federal court in Colorado. No need to go back to California (as the district court found).
• In 2016, Birmingham, Ala. officials enact a $10.10 minimum wage, but the next day state legislators preempt it, effectively enacting a statewide minimum wage of $7.25. Plaintiffs: Which discriminates against African-Americans, who make up 73 percent of Birmingham and most of its city council. Eleventh Circuit (2018): A reasonable argument, racist laws don’t really announce a racist purpose anymore. Eleventh Circuit (en banc, over a dissent): Plaintiffs don’t have standing to sue the attorney general; case dismissed. Also, some advice: Sue the companies not paying you $10.10, not the gov’t.
• Man records a court proceeding on his phone, for which he is convicted of contempt. North Carolina appeals court: Conviction and sentence affirmed. The man must write a 2,000–3,000 word essay on why “respect for the court system is essential to the fair administration of justice,” post the essay on social media, and delete all negative comments. Partial dissent (who was once a guest on the podcast): He shouldn’t have to monitor the comments.
• Note to gov’t attorneys: If you’re litigating a case in which the you bear the burden of proof, don’t flagrantly violate the pretrial disclosure rules, because you may end up having all of your evidence excluded and the law you’re defending will be struck down. In related news, the Tennessee Court of Appeals affirmed a trial court ruling striking down two campaign finance laws that imposed a yearly fee on nonpartisan PACs and prohibited nonpartisan PACs from making contributions in the 10 days before an election, but that imposed no such restrictions on party committees, because the government had no evidence to present.
• Are people born in American Samoa entitled to birthright citizenship under the Fourteenth Amendment? District of Utah: Hmm. I have to choose between an 1898 case about the Fourteenth Amendment that suggests yes, and a super-racist line of non-Fourteenth Amendment cases that suggest no. After an interesting look at the history of birthright citizenship, I’m going with yes.
• And in en banc news, the Sixth Circuit will reconsider its decision enjoining an Ohio law that bars doctors from providing abortions when they know the woman’s reason is because the baby has Down syndrome.

Attention 1Ls and 2Ls! Every summer, IJ hires law students to work in our offices in Arlington, Austin, Miami, Minneapolis, Seattle, and Tempe. Fellows get an unparalleled opportunity to impact IJ’s cutting-edge constitutional litigation. Not only is the summer extremely substantive in terms of work product, but students also participate in intensive legal and communications trainings, attend seminars, and integrate fully into IJ’s office and culture. Learn more about the program here, and apply now.

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It got overlooked a bit because of the Emmy fascination with Game Of Thrones, which collected 32 nominations this year (the most ever by a single television series) and boosted HBO’s total to an amazing 137. (Imagine how many nominations Game Of Thrones might have gotten if its final season was actually any good.)

But the real revelation of the Emmys is the snowballing television dominance of streaming services, especially over the foundering broadcast dinosaurs. Consider the numbers: Netflix had 117 nominations; NBC, the top broadcast network, 58. Amazon Prime had 47; CBS, the second-rank network, 43. Hulu scored 20, just under ABC’s 26 and ahead of Fox’s 18. Overall, the Big Three streaming services had 184 nominations, a striking 14 percent increase from 2018 and a substantial margin ahead of the broadcast nets’ 145.

With the way the streaming services are pirating talent and assets from the rest of television, those numbers are certain to grow even more lopsided next year. Netflix spent $500 million on deals with mega-producers Ryan Murphy, Shonda Rhimes, and Kenya Barris. And while it won’t win them any Emmys, the streamers in the past few months have spent something on the order of $2.5 billion to acquire rights to reruns of The Big Bang Theory, Seinfeld, The Office, and Friends in hopes of luring cable cord-cutters to subscribe. Rumored to be their next target: Dick Wolf’s 72 seasons of the Law & Order and Chicago franchises.

For all that, there’s still considerable uncertainty about the future landscape of television. Streaming services were birthed by the demented rates that government-granted cable monopolies were imposing on their increasingly disgruntled customers. Netflix’s top price of $16 a month is practically free compared to Comcast’s cable packages, which can hit $140 monthly even before premium channels like HBO and Showtime are added in.

But all that money to pay for Ross and Rachel and the Cal Tech nerds will have to come from somewhere, and it’s unlikely to be advertisers, who have found streaming to be of uncertain value. NFL games, for instance, seem to be a hot property for streaming, with a 77 percent increase in 2019. But when advertisers looked more closely, they didn’t like what they saw: The average NFL audience member stayed on-line just eight minutes, not enough to see, much less absorb, commercials. Most of them seem to be  looking in occasionally for a minute or two to check on a score, then going about their business.

So what happens when streaming prices start rising? Will it still prove attractive to cost-conscious cord-cutters? For that matter, will they even be interested in some of these old shows in the first place? Seinfeld has been in syndication for 21 years. At some point, even I Love Lucy stopped drawing viewers. The bottom line: Nobody really knows. But it’s worth remembering that the cutting edge technology of 2001—satellite radio—spent itself over a cliff in pursuit of deals with Howard Stern, major league baseball and other mega-money entertainment. In the end, the two networks, XM and Sirius, were forced to merge and have never recovered. We may know that television’s past is ending, but the future remains unknown.

What we also know: TV had some great moments in 2019, whether you watch it via cable, computer or even rabbit ears. The top 10 shows:

10. (tie) The Conners (ABC) and Killing Eve (BBC America). One of the great mysteries of TV is how The Conners, the successor to Roseanne, manages to be so funny while following a family dealing with some determinedly unfunny situations, including opioid addiction, single parenthood and working-class malaise. And if its realistic portrayal of the underside of blue-collar life is a service to a little-seen-on-TV demographic, so is Killing Eve, a touching and often funny look at the problems of psychosexually twisted female serial killers.

9. Evil (CBS). This mélange of serial killers, busybody demons and Catholic theology is intelligent, chilling, and hard to describe, which may explain why it’s only averaging a dead-on-arrival 3.5 million viewers. Yet CBS has already renewed it for a second season, more mysterious (though welcome) than any of the enigmas its characters face.

8. Hitsville: the Making of Motown (Showtime). A documentary on the first black record label to break into white America, Hitsville is not only fascinating but fun. “Oh, it doesn’t matter what you wear/Just as long as you are there/So come on, every guy, grab a girl/Everywhere around the world …”

7. County Music (PBS). Ken Burns at his yarn-spinning best, recalling the eccentrics who—when not selling goat-testicle implants or making their harmonicas sound like bagpipes—invented a populist art form.

6. Grace and Frankie (Netflix). A comedy that started off as a seeming one-shot novelty—Lily Tomlin as an aging hippie and Jane Fonda as an aging Junior Leaguer, thrust together when their husbands run off together—Grace and Frankie, five seasons later, is not only hilarious but the best TV series ever at confronting the problems of age, from the hassles of Social Security to the shortage of vibrators suited to arthritic hands.

5. Better Call Saul (AMC). A stand-up comic who turned out to have real acting talent, Bob Odenkirk’s portrayal of a lovably sleazy lawyer is one of the finest ongoing performances on TV. Plus, he’s got great lawyer jokes: “What do you call a lawyer with an IQ of 70? ‘Your honor.'”

4. The Deuce (HBO). David Simon’s fascinating drama about New York City’s sex industry came to an end after three seasons. Spoiler alert: The Internet ruined everything.

3. The Chi (Showtime). Like the lives of its characters—the families who live amid a Chicago drug-war combat zone—The Chi is funny, sad, horrifying, bloody, and overwhelmingly human.

2. The Morning Show (Apple TV). Jennifer Aniston and Reese Witherspoon strike fiery sparks as they try to out-sleaze their bosses at a cable news network more amoral than anything Donald Trump could ever imagine.

1. The Highwaymen. (Netflix). Kevin Costner and Woody Harrelson as a pair of Texas cops chasing Bonnie and Clyde was not only riveting drama but a kind of allegory of the state of TV streaming service. With big-time, big-screen stars, lush cinematic photography and a theatrical debut of a couple of weeks to qualify it for the Oscars before moving to Netflix, was it really television? Or a movie? And does anyone care?

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This whole impeachment thing has gotten rather weird. After insisting that the sitting president is an ongoing threat to American democracy who must be removed immediately, the Democratic leadership in the House has now decided to slow walk the articles of impeachment to the Senate because . . . reasons.

This has given rise to the utterly academic question of when exactly a federal officer is “impeached.” Literally nothing turns on the answer to this question, except perhaps the president’s feelings (he apparently would prefer to be able to say that he has not been impeached, at least for the remainder of the holiday season). His supporters have been quick to declare the president’s impeachment to be fake news.

But people are arguing about it. Harvard’s Laurence Tribe has argued that the House should withhold the articles of impeachment until the Senate agrees to rules for a trial that Nancy Pelosi likes. Harvard’s Noah Feldman has argued that the president has not actually been impeached until the House tells the Senate.

Of course, the media did not wait and immediately declared that the president had been impeached as soon as the House took its vote on the articles of impeachment. The Constitution gives to the House the sole power to impeach, but what exactly does it mean “to impeach.” One answer is that the House impeaches when it passes a resolution saying so, and then the House later presents that impeachment to the Senate. Another answer is that the House impeaches when it sends someone to the Senate and announces that an officer is hereby impeached. In the second scenario, the House authorizes someone to go to the Senate and “impeach” an officer, and then the House later presents the specific articles of impeachment that will form the basis of a Senate trial.

Nothing much turns on this distinction in the federal context. It is not clear that the early members of Congress understood the distinction or that the constitutional framers had a very clear idea about what exactly the impeachment power was that they were vesting in the House. The early House sometimes used the language of sending a member to the Senate “to impeach” an officer, but sometimes the House has used the language of sending a member to the Senate “to present” the impeachment. Conventionally, it was the Senate, not the House, that informed the officer that he had been impeached and should prepare for trial, which might suggest that the impeachment did not occur until it had been transmitted to the Senate (and thus the House need only inform the Senate, but not the officer).

But the distinction does sometimes matter in the states, because some state constitutions indicate that an impeached officer is suspended from his office until such a time that he is acquitted in an impeachment trial. If President Trump could no longer exercise the powers of his office at the moment he is impeached, it would become very important to know exactly when that moment has arrived.

I do not know if there is a consensus view in the states on this question, but there is a judicial opinion from Florida that surveys the English and American practice and concludes that an officer is not impeached until the transmission to the senate has occurred. In 1868, the Florida governor asked the Florida court to weigh in on the question of whether the legislature had even lawfully convened, whether the senate was lawfully constituted, and whether he could have been impeached by the sole action of the lower chamber.

One judge concluded:

It thus appears by ample precedent and authority, that an impeachment is not simply the adoption of a resolution declaring that a party be impeached, but that it is the actual announcement and declaration of impeachment by the House through its committee at the bar of the Senate, to the Senate, that it does thereby impeach the officer accused, which proceeding is at once recognized by the Senate.

The Assembly of Florida, on the 6th day of November, 1868, upon the declaration of a citizen, that Governor Reed has been guilty of crimes and misdemeanors, immediately ” Resolved, That Harrison Reed, Governor of Florida, be, and he is hereby, impeached of high crimes and misdemeanors in office.” This was immediately followed, however, by a resolution that a committee of three be appointed to go to the Senate, and at the bar thereof to impeach Governor Reed, and subsequently a committee reported that they had proceeded to the bar of the Senate and impeached, as they wore directed to do, Harrison Reed, &c.

And so it clearly appears that the Assembly deemed that an impeachment was not effective until an accusation should foe actually declared before the Senate, which body alone is authorized to entertain it.

If that is the federal rule, then President Trump can celebrate a merry Christmas as a not-yet-impeached president.

 

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