Tag: hit&run

In the opening moments of Thursday’s Democratic presidential debate, Sen. Bernie Sanders (I–Vt.) announced that he would not vote for the United States-Mexico-Canada Agreement (USMCA) because it would not solve climate change and would not prevent American companies from investing in factories overseas.

His answer should leave observers wondering if there are any circumstances under which a President Bernie Sanders would sign a trade deal.

Indeed, Sanders wears his opposition to trade like a badge of honor. As he often does, he bragged on Thursday night about his vote against the North American Free Trade Agreement (NAFTA) in 1994. He said the USMCA—which cleared the House earlier Tuesday with bipartisan support after President Donald Trump struck a deal with House Speaker Nancy Pelosi (D–Calif.)—makes “some modest improvement” over NAFTA, but not enough to earn his vote.

“It is not going to stop outsourcing. It is not going to stop corporations from moving to Mexico,” he said from the debate stage at Loyola Marymount University. “What we need is a trade policy that stands up for workers, stands up for farmers—and, by the way, the word “climate change” to the best of my knowledge is not discussed in this new NAFTA agreement at all, which is an outrage.”

There is plenty to dislike in the USMCA, which is a step backward in terms of free trade. It imposes additional rules on how goods flow across North American borders, aims to make it more expensive for American companies to export jobs to Mexico, and includes a sunset provision that means it could expire without explicit action by future governments. The deal has been endorsed by the AFL-CIO, a coalition of labor unions that almost never supports trade deals.

In short, a Republican president has delivered a trade deal that’s largely in line with what Democrats have been seeking for decades. If that’s not enough for Sanders, then what would be?

Sen. Amy Klobuchar (D–Minn.) said she will support the USMCA when it comes before the Senate—likely early next year. Unlike Sanders, Klobuchar acknowledged a basic reality of trade: that being able to exchange goods with people and businesses in other countries is essential to America’s economy.

“Ninety-five percent of our customers are outside of our borders,” she said during the debate, adding that the newer version of the USMCA negotiated by Pelosi is “much better than the one originally proposed.”

One can quibble with her assessment of the USMCA, but Klobuchar’s response feels like it at least acknowledges the reality of a global economy, while Sanders’ suggests that he would want terrifying levels of government control over the decisions of private businesses.

Strangely, the moderators of Thursday’s debate saw fit to ask only two of the three senators about whether they would vote for the USMCA. In skipping over Sen. Elizabeth Warren (D–Mass.), they did prospective Democratic voters a serious disservice.

Warren has published a detailed trade policy paper—one that essentially promises a more competent version of the protectionism that Trump has brought to the forefront of American politics in the past two years. Warren’s plan calls for “establishing a set of standards countries must meet as a precondition for any trade agreement with America.” Those standards include enforcement of collective bargaining, elimination of domestic fossil fuel subsidies, and a long-term plan to reduce carbon emissions—rules so strict that they effectively disqualify any developing country from reaching a trade deal with the United States.

But that’s all theoretical. It would have been useful and instructive to see how Warren would assess an actual trade deal that she will actually have to vote on in the near future. It’s sorely disappointing that she was not put on the spot.

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The Senate’s impeachment rules were adopted in 1986. Rule 1 provides that impeachment process begins in the Senate “[w]hensoever the Senate shall receive notice from the House of Representatives that managers are appointed on their part to conduct an impeachment against any person and are directed to carry articles of impeachment to the Senate.” At that point “the Secretary of the Senate shall immediately inform the House of Representatives that the Senate is ready to receive the managers for the purpose of exhibiting such articles of impeachment, agreeably to such notice.”

Rule 2 then explains that “the Presiding Officer of the Senate shall inform the managers that the Senate will take proper order on the subject of the impeachment” after the “the managers of an impeachment shall be introduced at the bar of the Senate and shall signify that they are ready to exhibit articles of impeachment.”

Pursuant to Rule 3, after “such articles being presented to the Senate, the Senate shall, at 1 o’clock afternoon of the day (Sunday excepted) following such presentation, or sooner if ordered by the Senate, proceed to the consideration of such articles and shall continue in session from day to day (Sundays excepted) after the trial shall commence (unless otherwise ordered by the Senate) until final judgment shall be rendered, and so much longer as may, in its judgment, be needful.”

Simply stated, under the current rules, the presentation of the articles by the managers triggers the commencement of the Senate trial. If the House does not transmit the articles, the Senate trial cannot begin.

The Senate could craft a different rule. For example, the Senate could specify that the impeachment proceedings begin 24 hours after the House managers transmits the articles of impeachment, or 24 hours after the Secretary of the Senate learns that articles of impeachment were approved, whichever happens sooner. (We presume that the Secretary of the Senate does not live under the rock, and will learn, one way or another, about an impeachment.)

The rule I proposed above would trigger something of a Schrödinger’s impeachment–the President is simultaneously impeached, and not impeached, depending who you ask. That is, the House says “not impeached” but the Senate says “impeached.” Moreover, the Senate trial could begin before impeachment managers were even appointed. Would such a Senate rule be constitutional?

The House would likely argue that the Senate rule is unconstitutional. That is, the President is not impeached until the House says he is impeached. And the House would argue that the act of impeachment is not final unless, and until the House deems it final. Under the current framework, the House would have to appoint managers, and transmit the articles of impeachment. This position would flow Article I, Section 2, which gives the House the “the sole Power of Impeachment.” The phrase “sole” suggests that the House, and not the Senate, decides when an impeachment is complete.

But what about the Senate? The Senate may argue that the appointment of the managers, and the transmission of the articles are mere formalities without constitutional significance. (A professor on the constitutional law list-serve drew an analogy between these ministerial tasks and the formal delivery of Willam Marbury’s commission.) Indeed, there is no constitutional requirement that the Senate allow House managers to present the articles. The Senate could handle the proceedings however it chooses. But can the Senate reach a different conclusion than the House about whether the impeachment is final? Article I, Section 3 provides “[t]he Senate shall have the sole Power to try all Impeachments.” The Senate gets to decide how to try an impeachment. But a precursor to that trial is the establishment of an “impeachment,” which the House gets to define. I have doubts about whether such a Senate rule would be constitutional.

Now, consider another Senate rule: if the House of Representatives approves an article of impeachment, but fails to transmit that article within thirty days, the Senate shall treat the article as dismissed for lack of prosecution, and the impeached official shall be deemed acquitted.

This proposal somewhat resembles Federal Rule of Criminal Procedure 48(b):

The court may dismiss an indictment, information, or complaint if unnecessary delay occurs in:

(1) presenting a charge to a grand jury;

(2) filing an information against a defendant; or

(3) bringing a defendant to trial.

Unlike my first proposal, this second proposal does not purport to define what is and is not an impeachment. Rather, it simply deems the person charged with the offense as acquitted–a power within the Senate’s prerogative. The House can dither and take as much time as it wants, but it cannot demand a trial at the time of its choosing. If the House waits too long, it will miss its chance of having a trial at all. I used thirty days as an example, but different time limits may be appropriate. The Senate could reasonably conclude that it does not want a cloud to hang over the accused indefinitely–especially if the President has been impeached–and the House should be pay the price for failing to transmit the articles within a reasonable time.

I think such a rule could pass constitutional muster. But I would not support this change. The House is under no obligation to transmit the articles, but failing to do so bears political costs. Indeed, waiting undermines the urgency with which the articles were approved. Political hardball in the Senate may not be necessary.

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Alas, once-beloved Harry Potter author J.K. Rowling is now cancelled. Her legacy is over. Her books can never again be enjoyed.

That’s according to progressive Twitter, which exploded with outrage after Rowling tweeted in defense of Maya Forstater, a British think tank employee who lost her job after she expressed views considered by many to be transphobic. Forstater has said that “Everyone’s equality and safety should be protected, but women and girls lose out on privacy, safety and fairness if males are allowed into changing rooms, dormitories, prisons, sports teams.” This is, of course, a commonly held view, but Forstater’s employees at the Centre for Global Development (CGD) decided it was a good reason not to renew her contract. She filed suit, and recently lost in court.

Rowling has previously drawn suspicion that she is a “Trans Exclusionary Radical Feminist,” or TERF: someone who denies that trans people are anything other than their birth sex. On Thursday, she waded into the Forstater controversy, tweeting:

Dress however you please.
Call yourself whatever you like.
Sleep with any consenting adult who’ll have you.
Live your best life in peace and security.
But force women out of their jobs for stating that sex is real? #IStandWithMaya #ThisIsNotADrill

— J.K. Rowling (@jk_rowling) December 19, 2019

The tweet appears to confirm what many trans activists have long suspected, and progressives are making their displeasure known (just read the replies).

It’s fine, of course, to disagree with Rowling and Forstater—I disagree with them, about this issue and probably many others. But Rowling’s critics are also claiming that her conservative views on transgender issues has forever ruined the Harry Potter books. Indeed, Vox tweeted the following:

Did J.K. Rowling just destroy the legacy of Harry Potter with a single, transphobic tweet? https://t.co/K8CgiBeRRZ

— Vox (@voxdotcom) December 19, 2019

The answer implied by Aja Romano’s article is certainly yes. It’s subtitle is: “JKR just ruined Harry Potter, Merry Christmas.”

Romano writes that “Rowling’s tweet reveals itself as a shocking dismissal of transgender identity: its first three lines seem to directly attack trans identity, while its final line mischaracterizes the facts surrounding a court case that involves significant transphobia.” As a reminder, the first three lines of Rowling’s tweet were “Dress however you please. Call yourself whatever you like. Sleep with any consenting adult who’ll have you.” How these statements constituted a direct attack on trans identity, I’m not quite sure.

Romano goes on to claim that Rowling has “a long problematic history” on everything from queerbaiting—that is, piquing the interest of queer audiences by hinting at same-sex characters and relationships but never making them explicit—to cultural appropriation. Romano concludes her piece by stating that she wishes she could divorce the books themselves from “the now-tainted voice of its author,” but suggests this is unrealistic.

I can’t help but feel bad for people who are unable to separate the art from the artist. They have set themselves up for a lifetime of disappointment. Like a room full of monkeys and typewriters, every author, director, comedian, and musician will inevitably commit a transgression against progressivism, which continuously asks people not just to tolerate, but to adopt and espouse beliefs they might not like or want to hold. It’s much better to continue liking and appreciating a piece of culture, even if there’s something you don’t like about its creator.

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Nearly a decade after its enactment, the Affordable Care Act remains under constant siege. Indeed, covering Obamacare reminds me of the film Groundhog Day: the same script repeats itself over and over again, in slightly different contexts. The Supreme Court has twice rejected challenges to the Affordable Care Act’s survival. Now, the third major challenge to Obamacare is on the Supreme Court’s marble doorstep. The Fifth Circuit Court of Appeals held that the 2017 tax bill that eliminated the ACA’s penalty also rendered the individual mandate–and perhaps other aspects of the law–unconstitutional. 

The dissenting opinion scoffed at the entire case. Judge Carolyn Dineen King asked if it is really “necessary for a federal court to rule on whether the Constitution authorizes a $0 tax or otherwise prohibits Congress from passing a law that does nothing.” Judge King pithily captured popular opposition to this case: why should the courts disturb a transformative federal law because Congress may have lacked the power to enact a single unenforceable provision? 

The answer to this question is simple, but likely will be unsatisfying to critics. In 2012, Chief Justice Roberts was faced with a choice. He could have joined his four conservative colleagues who held that the entire Affordable Care Act was unconstitutional. Or, he could have agreed with a prominent conservative appellate judge who found that Congress could require people to buy insurance as a means to regulate the nationwide health care marketplace. Either option would have settled the status of the nascent law with finality. Obamacare was constitutional, or it wasn’t. There would be no doubts.

The Chief Justice chose door number three. He agreed with Justices Scalia, Kennedy, Thomas, and Alito that the ACA did not merely regulate interstate commerce, but imposed an unconstitutional mandate to engage in commerce. But he did not stop there. Roberts concluded that the ACA could be saved because the law’s penalty resembled a tax, and Congress’s taxing power is broader than its commerce powers. This split-the-baby approach provides the answer to Judge King’s question. Had Chief Justice Roberts definitively resolved the status of the ACA, it would be completely unnecessary to decide whether reducing the penalty to $0 rendered the mandate unconstitutional. But he didn’t make that ruling. Now, when Congress altered the penalty, we have to assess the effect of that alteration on the ACA’s constitutionality.

Roberts’s steadfast effort to chart a middle course effectively rewrote Congress’s handiwork. And by identifying factors that saved the mandate, Roberts recognized that the absence of those factors would doom the mandate. Rather than having a steady, stable legal regime, we are left with what I’ve described as “Schrödinger’s mandate”–a law whose validity turns entirely on what Congress does after the fact, regardless of what Congress intends. In the pursuit of moderation, Chief Justice Roberts left the ACA dangling by a metaphysical string–a string that Congress sliced in 2017.

Now, I’ll level with you. The mere fact that Congress toppled the saving construction did not require Texas and other red states to bring this lawsuit. The Plaintiffs could have simply concluded that Congress’s decision, at most, rendered the individual mandate unconstitutional. And because the government would take no action to enforce the mandate, a lawsuit would have been meaningless. But the conservative attorneys general didn’t take that approach. They argued that if the mandate was unconstitutional, the entire law had to fall. And two private plaintiffs argued that the ACA was a bad policy that required them to buy expensive, unwanted policies. Here, the Plaintiffs’ case blends fidelity to constitutional principles with advancement of policy preferences.

I don’t begrudge the red states any more than I fault blue states who bring similar cases. Lawfare is colorblind. Conservative and liberal attorneys general alike bring audacious legal cases based on thin legal reeds, to achieve goals the political process cannot support. But this case does not rest on gossamer threads. Indeed, I think Texas v. U.S. is a stronger case than the two previous challenges the Supreme Court considered. Chief Justice Roberts opened the door to this argument by saving the ACA under certain circumstances. If those circumstances are no longer present, Obamacare is unconstitutional, at least in part. That holding would be far simpler than some of the decisions we’ve seen in recent years. But the Court could go the other way. In his customary role as the swing vote, Chief Justice Roberts will decide whether to let Texas through the door he opened, or slam it shut.

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On Wednesday, as Rep. Justin Amash (I–Mich.) was voting with the nearly-unanimous House Democrats to impeach President Donald Trump, a group of former Republican campaign strategists for the likes of former Sen. John McCain and former Gov. John Kasich announced the formation of a new Super PAC to support Amash’s effort to retain his swing-district congressional seat as an independent.

“While we don’t agree with him, or each other for that matter, on every issue, we think Washington needs more Justin Amashes,” wrote County Above Party Super PAC co-founders Rick Wilson, John Weaver, and Jeff Timmer, in a joint Michigan Live op-ed yesterday. “Whether Amash is successful or not in his re-election bid as an independent will have consequences beyond his district’s boundaries or even Michigan’s borders. Allowing him to be swept aside in favor of a craven Trump apparatchik will further coarsen our politics and threaten the rule of law.”

Wilson, author of the 2018 bestseller Everything Trump Touches Dies: A Republican Strategist Gets Real About the Worst President Ever, previously worked on campaigns for George H.W. Bush, Rudy Giuliani, and Evan McMullin, and was appointed to a Defense Department job by Dick Cheney. Timmer, an Amash constituent and former executive director of the Michigan Republican Party, announced last month that he “will support any Democrat—even a yellow dog—against any Republican who supports Trump.” Weaver, a key strategist in both McCain presidential runs (though he was canned from the second when it was floundering in 2007), headed up the quixotic presidential bids of Jon Huntsman in 2012 and Kasich in 2016, and has been drawing a $10,000 monthly fee from the pro-Kasich Super PAC New Day for America ever since.

Wilson and Weaver on Tuesday joined former McCain advisor Steve Schmidt and the interestingly married legal analyst George T. Conway III in announcing the formation of a parallel national Super PAC, the Lincoln Project, dedicated “to defeating President Trump and Trumpism at the ballot box and to elect those patriots who will hold the line.”

On the surface, it may seem odd for a bunch of McCainites to be rallying behind a man who came to Congress heralded as the next Ron Paul. After all, it was only six-plus years ago that the curmudgeonly maverick lumped Amash with Ron Paul’s senator son and Sen. Ted Cruz (R–Texas) as “wacko birds.” (“Bravo, Senator. You got us,” Amash clapped back.)

But one of the features of our political moment is that anti-Trump activity on the right tends to emanate from two main camps: Libertarians (Amash, Judge Andrew Napolitano, etc.), and neoconservative-style interventionists (Bill Kristol, David Frum), with the second group being considerably larger. A third category, Mormons, is dispersed liberally within the other two.

So it was only a matter of time before the strange bedfellows collaborated more directly. And while it’s tempting to concoct theories for what these disparate groupings have in common that Trump’s base does not, the grim reality for all is that they have been driven to the outer margins of the modern Republican Party.

Mark Sanford, a former governor and representative of South Carolina, tried to run at Trump with an old-fashioned fiscally conservative campaign, and got crushed in nine short weeks. Former Libertarian Party vice presidential nominee Bill Weld is trying fiscal conservatism plus character/legal issues, and is polling at 3 percent nationally since Sanford dropped out, more than 85 percentage points behind the president. Joe Walsh is running purely on character, and lagging behind Weld. Debt, divisiveness, and decorum ain’t what they used to be, issue-wise.

While the Lincoln Project in particular sounds like one of those old-timey Weekly Standard-style calls to stir men’s souls—”Patriotism and the survival of our nation in the face of the crimes, corruption and corrosive nature of Donald Trump are a higher calling than mere politics,” goes the first line in their New York Times op-ed—the likeliest scenario on the national stage is that such exertions will amount to little more than a vehicle for spending the money of the anti-Trump conservative rich.

You can see the fatalism beginning to sink in about the Trumpification of the GOP, even among people who only recently held out hope. After Sanford entered the race in early September, Executive Editor Jonathan V. Last at the #NeverTrump outlet The Bulwark enthused, “Three Horsemen Are Coming for Trump.” This week, even with Super PACs springing up all around him, Last concluded: “Trump Is Forever.”

But Amash isn’t running against Donald Trump, at least as of now. His re-election race, which is being contested by both parties in vigorous primaries, is widely rated a toss-up. In rattling the cup for what they optimistically project could be as much as $5 million for Congress’s lonely libertarian, the Country Over Partiers are appealing luridly to the way the whole country is fixated on the president.

“In the 1987 film The Untouchables, Robert DiNiro’s Al Capone circles a table where his lieutenants are seated. He stops behind one guy and pounds his head to a pulp with a baseball bat—savagely sacrificing one as a warning to keep the rest in line,” Wilson, Weaver, and Timmer wrote. “Donald Trump and the Republican Party are acting out the political equivalent of that movie scene.”

“The impenetrable partisan divide on display throughout the impeachment proceedings in the House and the non-existent prospects of conviction in the Senate underscores the effectiveness of Trump’s Untouchables strategy. Many Republicans serving in Washington agree with Amash and think Trump has committed impeachable acts. However, they’re watching their political backs and see Trump and the party apparatus aiming at Amash. None are willing to speak up or also risk being ‘that guy’ at Trump’s Capone table. They fear they’ll attract Trump’s wrath the way Amash already has—and will continue to receive right through to November.”

Bonus link: Read my August 2018 interview with Rick Wilson here.

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Despite intense lobbying from industry and Congressional Democrats, “temporary” federal tax credits for solar investment will at long last be allowed to lapse, marking one bright spot in a Congressional budget deal otherwise full of spending increases and special interest tax carveouts.

Since the 1970s, the federal government has given out a 10 percent tax credit to non-oil and gas energy investments, including solar. This investment tax credit program was always intended to be temporary but ended up being extended throughout the 1980s until finally being made permanent in 1992.

In 2005, Congress passed another “temporary” expansion of the investment tax credit for solar and geothermal energy, increasing it to 30 percent through 2007, but this too was extended again and again, most recently in 2015.

Current law had the tax credits for solar and geothermal energy falling to 26 percent in 2020, down to 21 percent in 2021. In 2022, the tax credit falls to a permanent 10 percent credit for commercial solar installations and is abolished completely for residential solar rigs.

In June, 20 Senate Democrats, including Sen. Diane Feinstein (D–Calif.), sent a letter to Senate leadership and the heads of the Senate Finance Committee asking for solar tax credits to be extended until Congress could pass comprehensive carbon reduction legislation.

In November, this was followed up in the House when Rep. Mike Thompson (D–Calif.) and other Democrats on the House Ways and Means Committee introduced the Growing Renewable Energy and Efficiency Now, or GREEN Act.

The bill, among other things, would extend the 30 percent solar tax credit out to 2024, where it would then zero out for non-business solar installations, and gradually fall to 10 percent by 2027 for commercial solar investments.

House Democrats were hoping to get their GREEN Act included as part of this year’s budget deal, which is how an extension of the solar investment tax credit had managed to pass Congress in 2015. They came up short, however. This year’s budget deal does not extend the expanded solar investment tax credit, sticking to the current schedule of falling down to 10 percent for businesses and zeroing out for residential installations.

A wind production tax credit, which was supposed to expire at the end of 2019, was extended for another year. As Reason‘s Eric Boehm noted yesterday, Congress’ budget deal also gives a handout to biodiesel makers, who saw their own tax break expire in 2017. They will be now able to claim retroactive tax credits for the past two years, plus another two years of tax credits going forward.

This was not enough for many renewable energy groups.

“Congress let a crucial opportunity slip by, advancing a massive government spending bill without extending one of the most successful clean energy tax policies in history, the solar Investment Tax Credit,” said Abigail Ross Hopper, president and CEO of the Solar Energy Industries Association (SEIA), in a press release.

The SEIA argues that the solar industry has seen phenomenal growth since the introduction of the 30 percent solar investment tax credit, and should, therefore, be preserved.

“We already know that the ITC has generated hundreds of thousands of jobs and injected more than $140 billion in private investment into the economy,” said Hopper in a June press release. The SEIA’s website claims the solar industry has experienced 52 percent annual growth thanks to federal tax credits.

This argument cuts both ways however: the stronger the solar industry becomes, the less of a case there is for giving it special treatment. This was the argument many industry analysts made back in 2015 when the tax credits were last up for debate: a tapering off of tax credits might slow the growth of the solar industry, but it wouldn’t see it disappear.

Obviously, it would be better if Congress had gotten rid of the 10 percent permanent investment tax credit for solar, as well as the other renewable energy tax credits included in its budget deal.

It would be better still if subsidies to all energy production, including those to fossil fuels, were eliminated as well. A technology-neutral tax code with no special carveouts for anyone should be the goal. That the solar tax credits will finally expire is nevertheless a rare bit of sunshine.

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I’m a departmentalist, not a judicial supremacist.

Departmentalism holds that each branch of government has an equal authority to construe the meaning of the Constitution for itself when carrying out its own duties and responsibilities. The primary alternative, frequently asserted by the Supreme Court, is that the judicial branch has the ultimate and preeminent authority to interpret the Constitution.

Departmentalism was first and most elaborated articulated by the Jeffersonians. Confronted by a federal judiciary that enthusiastically supported the Federalist Party’s Sedition Act of 1798, which was used to shut down Jeffersonian newspapers in the run-up to the 1800 election, the Jeffersonians looked for vehicles for explaining why the Sedition Act was unconstitutional and in violation of both enumerated powers and the First Amendment.

The Federalists, of course, thought the Sedition Act was constitutional on the merits. They also thought that the federal courts were the only institution entitled to evaluate the constitutionality of federal statutes. They sometimes even suggested that the Constitution was just whatever the courts said it was.

Jefferson thought it “a very dangerous doctrine indeed” to “consider judges as the ultimate arbiters of all constitutional questions.”

The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. . . . I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.

Departmentalism has rarely held sway in American politics, and it has become weaker over time. Elected politicians have found plenty of reasons to pass the buck to the courts whenever possible. Sometimes it seems that they barely know how to meet their own constitutional responsibilities at all. Democrats in Congress today certainly seem uncertain about how best to understand or defend congressional authority under the Constitution.

Congress and the president frequently disagree about the scope of their respective institutional authority. Those disagreements can sometimes be intense, and each branch has its own set of political tools to advance its constitutional understanding and attempt to effectuate it. Presidents have sometimes asserted that Congress has encroached on their own exclusive constitutional domain, and legislators have sometimes resisted those claims. Presidents have sometimes claimed that Congress has abused its own constitutional powers or that Congress has interfered with the president’s ability to perform his own constitutional functions. They have ways to act on those claims, and Congress has ways to push back.

I first became interested in studying the impeachment power because it was a constitutional domain in which courts had little sway. Congress construed its own authority to exercise the impeachment power, and Congress sometimes used the impeachment power as an instrument for advancing its constitutional understandings about the rules, norms and practices that would govern the American political system.

There are those who would prefer to judicialize all constitutional disputes. They would invite judges in to resolve not merely matters of individual right under the terms of the Constitution but also matters of interbranch relations. Matters that might be managed through political negotiation, compromise, norms and comity might instead by managed by reference to legal rules articulated by judges. The result might be tidier but it will be less flexible, probably less functional, and ultimately less democratic.

The impeachment power, like any other constitutional power, can be abused. The Senate sits in judgment of whether the House has misused its sole power to impeach federal officers. The people sit in judgment of whether the House and the Senate together have properly wielded this most formidable constitutional weapon. I know no safe depository of the ultimate powers of the society but the people themselves

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Yesterday, a New York judge dismissed state fraud charges against former Trump campaign chairman Paul Manafort, deeming them inconsistent with the state’s double jeopardy law. Manafort, who turned 70 last April, is already serving a federal sentence of seven and a half years, based largely on the same conduct that underlies the state charges. Manhattan District Attorney Cyrus Vance sought to prosecute him again for those actions, lest presidential clemency reduce the punishment imposed on a Trump crony.

If you are thinking that’s a blatantly political motive for a decision that is supposed to be based on considerations of justice, you are not wrong. Worse, New York’s Democrat-controlled legislature amended the double jeopardy law last spring to facilitate such duplicative prosecutions in cases involving people associated with the president who benefit from clemency.

Last year a federal jury in Virginia convicted Manafort on two counts of bank fraud and deadlocked on seven other bank fraud counts, all related to misinformation in mortgage applications. (It also convicted him on five counts of filing false tax returns and one count of failing to report foreign bank accounts, but those charges are not relevant to the New York case.) Manafort later agreed to a plea deal in a separate federal case, brought in Washington, D.C., involving charges of witness tampering and conspiracy against the U.S. government. Under that agreement, which ultimately resulted in a 43-month prison sentence, Manafort admitted to the conduct underlying the hung bank fraud counts, which the Justice Department agreed to dismiss.

U.S. District Judge T.S. Ellis III, who oversaw the Virginia case, initially said he was dismissing those counts “without prejudice,” even while expressing doubt that they could ever be reinstated. In the judgment he issued last March, he said he was dismissing the hung counts “with prejudice.” He nevertheless took the underlying conduct into account when he sentenced Manafort to 47 months in prison.

A few days before Manafort received that sentence, a grand jury in Manhattan indicted him on 16 state fraud charges, based on the same inaccurate mortgage applications that had led to his federal prosecution in Virginia. The New York Times reported that the charges were “designed to thwart a Trump pardon.”

According to the U.S. Supreme Court, this sort of redundant prosecution does not violate the Fifth Amendment’s ban on double jeopardy. But New York has a statute that provides broader protection for defendants in situations like this. It says “a person may not be separately prosecuted for two offenses based upon the same act or criminal transaction.”

The question for Maxwell Wiley, the New York judge who dismissed the state charges against Manafort, was whether that law barred Vance’s attempt to “thwart a Trump pardon.” The answer might seem obvious, since Vance’s prosecutors “concede[d] that the charges in the relevant counts in the Federal Indictment, including those in the Hung Counts, were based on the same acts and transactions that form the basis of all the charges in this New York State indictment.” But Vance argued that the state charges were authorized by two exceptions to the double jeopardy law.

One exception applies to proceedings that are “nullified by a court order which dismisses the accusatory instrument but authorizes the people to obtain a new accusatory instrument charging the same offense or an offense based upon the same conduct.” Wiley concluded that Judge Ellis’ dismissal of the hung bank fraud counts did not amount to such an order.

The statute also says a defendant may be “separately prosecuted for two offenses based upon the same act or criminal transaction” when “each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil.” While the state charges against Manafort do contain elements that were not elements of the federal offenses, Wiley ruled, it cannot be credibly maintained that the state and federal statutes defining those offenses are aimed at “very different kinds of harm or evil.”

Both the federal bank fraud statute and the New York statute criminalizing residential mortgage fraud, Wiley said, were aimed at “preventing the type of financial fraud that led to the financial crisis of 2008.” He concluded that the other state laws under which Manafort was charged, addressing conspiracy, falsification of business records, and schemes to defraud, likewise were aimed at problems similar to those addressed by the federal laws under which he already had been prosecuted.

The recent revisions to New York’s double jeopardy statute, which Gov. Andrew Cuomo (D) signed into law on October 16, allow Vance and like-minded prosecutors to avoid all this complicated business. The amended law includes a new exception for former executive branch officials who served in positions requiring Senate confirmation, former members of the president’s executive staff, and former employees of his campaign, transition team, businesses, or nonprofit organizations who benefit from presidential clemency after they are prosecuted for federal offenses. The exception also applies to people who are related to the president “by consanguinity or affinity within the sixth degree.”

In case those broad categories don’t do the trick, the exception extends to anyone who “bears accessory liability” for crimes committed by people associated with the president. There are also catchall categories for acts of clemency that help the president avoid “potential prosecution or conviction,” that are related to crimes that benefited him, or that provide relief for a person who has information “material to the determination of any criminal or civil investigation, enforcement action or prosecution” involving the president.

Supporters of the bill that closed what they call “the Double Jeopardy loophole” argued that a president should not be able to suppress damaging information that might emerge from state prosecution of former underlings by pardoning them for federal offenses that are also criminal under New York law. “Either in the past or in a continuing manner, the president has talked about using the pardon power in a corrupt way to undermine the rule of law,” said the bill’s Senate sponsor, Todd Kaminsky, a Democrat who represents part of Long Island. “I think New York doesn’t have to sit by and let the capricious use of the pardon power tie its hands.”

But New York’s Trump-inspired tolerance for double jeopardy sweeps more broadly than Kaminsky’s high-minded rationale suggests. Why throw everyone connected to Trump under the bus, instead of simply allowing state prosecutions in cases where it can be shown that a pardon or commutation helped him avoid civil or criminal liability? The breadth of the new exception makes sense if it is a cudgel to beat Trump allies, less so if it is all about preventing him from “using the pardon power in a corrupt way to undermine the rule of law.”

The revised law authorizes double jeopardy for anyone in Trump’s orbit—including former secretaries, second cousins, and low-level campaign employees—who is convicted of a federal offense, even if the crime seems minor and the punishment disproportionate. Trump could still use his clemency power to help such a person, but that would not stop New York prosecutors from trying him again for the same conduct, assuming they can find a state law that applies.

If, say, Trump commuted the mandatory minimum sentence of a drug offender who once worked for one of his businesses, she would still be subject to state prosecution for the same crime. Meanwhile, a similarly situated defendant who committed the same offense but never made the mistake of working for Trump would not have to worry about a second prosecution. Call that distinction whatever you like, but it surely does not seem like upholding the rule of law.

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While a pregnant woman should be legally required to help the fetus survive outside of her body whenever that is possible, she should retain the legal right to evict the fetus at any time during her pregnancy.

That was the resolution of a public debate hosted by the Soho Forum in New York City on December 8, 2019. It featured Walter Block arguing for the resolution and Kerry Baldwin aguing against it. Soho Forum Director Gene Epstein moderated.

It was an Oxford-style debate. That means the audience votes on the resolution at the beginning and end of the event, and the side that gains the most ground—mostly by picking up votes from the “undecided” category—is victorious. Block prevailed by convincing 13.85 percent of audience members to change their minds. Baldwin was not far behind, picking up 12.31 percent of the audience.

Block is the Harold E. Wirth Eminent Scholar Endowed Chair and Professor of Economics at Loyola University New Orleans, and a prolific author on Austrian economics and libertarian theory. He’s the author of Defending the Undefendable I and II, among many other books.

Kerry Baldwin is an independent researcher and writer with a B.A. in Philosophy from Arizona State University. Her work can be found at MereLiberty.com and at the Libertarian Christian Institute.

The Soho Forum, which is sponsored by the Reason Foundation, is a monthly debate series at the SubCulture Theater in Manhattan’s East Village.

Produced by John Osterhoudt.
Photo credit: Brett Raney.

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For the last four years, we have been living a collective nightmare. Our shared values have been undermined. Our cherished culture has come under attack. At its least harmful, this nightmare has taken the form of empty nostalgia, in which the leaders who have been entrusted with ushering us into the next era have instead looked into the past, distracting us with symbolic gestures that serve no purpose except to cover up a lack of vision. At its worst, a combination of incompetence, erraticness, and sometimes sheer malice has squandered decades of progress. The ensuing conversation has been fruitless and ugly, and the experience has left many of us polarized, angry, and exhausted.

This week, it finally started to look as if that nightmare might end—but only in the weakest and most slapdash manner. This resolution, which is not really a resolution, is not only a disaster: It’s a disappointment, a pointless, abysmal letdown that is virtually certain to fully satisfy almost no one. The result is a rushed and poorly executed product of bad management, empty thinking, and shallow wish-fulfillment that will only further the public’s loss of faith in the entire enterprise.

I speak, of course, of the Star Wars franchise, which in late 2015 returned to movie theaters under the managerial oversight of Lucasfilm’s Kathleen Kennedy, with a strong creative influence from Hollywood’s reigning prince of blockbuster mediocrity, J.J. Abrams.

Although other writers and directors have worked on the films, to varying effect, these two have been the chief visionaries. Kennedy managed the brand, and Abrams co-wrote and directed the first and third chapters in a new trilogy meant to expand on the sci-fi soap opera that franchise creator George Lucas started back in 1977. 

And now, with The Rise of Skywalker, the third chapter in the trilogy that Kennedy and Abrams began four years ago, the full impact of their creative leadership has become clear. 

Skywalker is a frantic, disjointed mess—not a movie with good ideas poorly executed, not even a movie with bad ideas, but a movie with no ideas at all, save for saccharine paeans to fandom and nostalgia. As a story, it is empty and unengaging to the point of boredom. As a cinematic product, it is surprisingly lackluster, with shoddy effects and muddy visuals. And as an entry in the Star Wars franchise, an ostensibly major part of the pop-culture canon, it is a wasted opportunity: a total failure of both creative imagination and corporate brand management. 

After Lucasfilm sold Star Wars to Disney, Kennedy cycled through writers and directors, firing several who were deep into the development process—and, in the case of last year’s Solo, weeks into filming. Something similar happened with Skywalker, where writer-director Colin Trevorrow was taken off the project and Abrams brought back to close out the story he started with 2015’s The Force Awakens. 

All that hiring and firing reflects an understandable anxiety over controlling one of Hollywood’s biggest properties. But the frequency with which Kennedy’s creative collaborations collapsed, and the timid, half-baked films that resulted, suggest something worse: a directionlessness and uncertainty about what the brand’s value proposition was. Why do people love Star Wars? Why does it endure? Kennedy just didn’t know what Star Wars was supposed to be.

Abrams, who had previously rebooted the Star Trek franchise and directed Super 8, a relentlessly nostalgic tribute to Steven Spielberg, stepped in with an answer. What people loved about Star Wars was…loving Star Wars. So he made a movie about a trio of young heroes who revered and worshiped the series’ old heroes, who over the course of the trilogy were cast as mentors for the younger generation.

That trend continues in Skywalker, which positions resistance leader General Leia Organa as the trainer to Rey, the trilogy’s protagonist, who once again must swashbuckle her way through an onslaught of CGI gobbledygook in her quest to…ah, who cares? Certainly not any of the characters, who duly intone about the importance of the mission but seem about as engaged as if they are standing in line at the dry cleaner. Hotshot pilot Poe Dameron (Oscar Isaac) and Finn (John Boyega) have been relegated to the sidelines in previous films; here they are onscreen more often, yet no less irrelevant. Only Adam Driver, as the Darth Vader–esque Kylo Ren, seems to hold the screen. 

Even the relationship between Rey and Leia plays out awkwardly. In part that’s because it relies on digital trickery and repurposed footage to resurrect Carrie Fisher, who died in 2016. And in part that’s because there’s so little dramatic inertia, since the movie all but wipes out The Last Jedi, the polarizing middle chapter of the trilogy. 

Instead of following through on that flawed, frustrating film’s universe-expanding narrative, Abrams has brought the trilogy back to his original idea: What people love about Star Wars is being reminded that they love Star Wars. So Skywalker is structured as a series of callbacks, a slideshow of favorite moments and characters, no matter whether they (or the actors who play them) are dead, and no matter whether they belong in this particular story, whatever it is. Skywalker is not so much a movie as a $200 million fan-made YouTube highlight reel. It might as well have been titled Why We’ll Always Heart Star Wars. 

In that way, it bears more than a small resemblance to today’s political moment, with its endlessly outraged partisans and pointless displays of symbolism and substantive void. It is probably not an accident that the discourse over The Last Jedi descended into an ugly, intractably polarized debate over the movie’s nods to wokeness and diversity. Much of that debate was a stand-in for arguments about President Donald Trump—arguments that managed to distract both fans and critics alike from more sober and interesting assessments of the movie’s real stylistic strengths and serious narrative flaws. The parallels to our poisoned political discourse are plain to see. 

Star Wars has always refracted and reflected the politics and culture of its day. In the 1970s, when Lucas kicked things off, that meant gay robots, peasant shirts, a soulless evil empire, and new-agey spiritual self-helpisms. It didn’t offer wholly new ideas, but it did offer a new synthesis, one that blended a pop-mythical storytelling sensibility with film-school formalism and more than a little bit of tie-die weirdness. Lucas spun this into an empire of toys and lunchboxes and spinoff stories. Star Wars was a great movie, but it was also a triumph of creative cultural management. 

Kennedy has no such managerial deftness, and Abrams lacks Lucas’ trippy brilliance. Under their watch, Star Wars has retreated entirely into itself, content to recycle and repeat its old mantras in increasingly crude fashion in increasingly desperate hopes of making Star Wars great again. If Skywalker reveals anything about the world around it, it’s that we are living through an era of mismanagement and lack of vision, of dead-end rehashing, on-screen and off. (Even I have made a version of this argument before.) It’s time for those who brought us to this historically low point to finally face some consequences.

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