Tag: hit&run

President Donald Trump has been impeached by the House of Representatives. 

Lawmakers on Wednesday approved articles of impeachment against Trump for abuse of power and obstruction of Congress; the former passed 230 to 197, while the latter advanced 229 to 198. He is only the third president in U.S. history to face a Senate trial. 

While the vote fell almost exclusively along party lines, noteworthy defections include Rep. Jeff Van Drew (D–N.J.), who announced last week that he will leave the Democratic party over his opposition to the impeachment process, and Rep. Justin Amash (I–Mich.), who in July left the Republican party after expressing support for impeachment. Rep. Tulsi Gabbard (D–Hawaii) voted present.

Trump now faces a trial amid accusations that he withheld a White House meeting and $391 million in military aid from Ukraine in exchange for President Volodymyr Zelenskiy publicly announcing a probe into Burisma Holdings (the energy company where former Vice President Joe Biden’s son sat on the board) and an investigation into a highly criticized theory that Ukraine carried out extensive election interference to help 2016 Democratic nominee Hillary Clinton.

“Many of my colleagues appear to have made their choice to protect the president, to enable him to be above the law, to empower this president to cheat again, as long as it is in the service of their party and their power,” said Rep. Adam Schiff (D–Calif.). “They’ve made their choice….and I believe they will rue the day that they did.”

Republicans characterized the proceedings as an effort to unseat a duly elected president. Rep. Mike Kelly (R–Pa.) said today’s vote will “live in infamy,” drawing an unsavory comparison to the 1941 surprise attack on Pearl Harbor, in which the Japanese killed more than 2,000 people. Rep. Barry Loudermilk (R–Ga.) likened the legal mistreatment of Trump to the mistreatment of Jesus and said that Trump has had it worse. 

Throughout the process, the GOP has sought to dispute the testimony of several witnesses, who in November described an apparent effort led by Trump to pressure a foreign power into investigating his political rivals in advance of the 2020 election. Gordon Sondland, the U.S. ambassador to the European Union, testified that there was a well-understood quid pro quo between the U.S. and Ukraine in exchange for the desired White House meeting; Bill Taylor, the current chargé d’affaires in Ukraine, said that it was “crazy” to freeze the congressionally appropriated security assistance, which was blocked without explanation in July and not disbursed until September 11. Republicans have dismissed those statements as hearsay.

Congressional GOPers have also accused Democrats of infringing on Trump’s right to due process. Keith Whittington, the William Nelson Cromwell Professor of Politics at Princeton University, tells Reason that those allegations are akin to “throw[ing] sand in the air and try[ing] to distract people from what’s going on.”

But while the evidence might cut against Republicans’ defenses, Democrats almost certainly do not have enough testimony to convict the president. Trump has blocked the release of requested documents and forbidden potential witnesses—including Secretary of State Mike Pompeo, acting Chief of Staff Mick Mulvaney, and former national security adviser John Bolton—from appearing before Congress. Those first-hand accounts may have been obtainable had Democrats taken the issue to court. They chose not to, opting instead for speed and thus an almost certain acquittal in the Senate.

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The Fifth Circuit decided Texas v. United States, the challenge to the constitutionality of the ACA. The panel divided 2-1. Judges Elrod and Engelhardt found that (1) the Plaintiffs have standing, (2) the individual mandate was unconstitutional, but (3) remanded for further proceedings on severability. Judge King dissented. This post will consider the first issue: whether the individual plaintiffs have standing. I will consider the merits and severability in later posts.

The majority’s standing analysis, which begins on p. 17, largely tracks a post I co-authored with Randy Barnett before oral arguments, as well as a solo post after oral arguments.

First, the majority acknowledged that the individual plaintiffs’ argument for standing is similar to the arguments presented by the plaintiffs in NFIB. The panel quotes an important colloquy between Justice Kagan and (now-Judge) Gregory Katsas.

The standing issues presented by the individual plaintiffs are not novel. The Supreme Court faced a similar situation when it decided NFIB in 2012. At oral argument in that case, Justice Kagan asked Gregory Katsas, representing NFIB, whether he thought “a person who is subject to the [individual] mandate but not subject to the [shared responsibility payment] would have standing.” Mr. Katsas replied, “Yes, I think that person would, because that person is injured by compliance with the mandate.” Id. Mr. Katsas explained, “the injury—when that person is subject to the mandate, that person is required to purchase health insurance. That’s a forced acquisition of an unwanted good. It’s a classic pocketbook injury.”

Second, in NFIB, the injury was never premised on the penalty; it was always premised on the obligation imposed by the mandate. Indeed, the penalty would not be assessed for two years. Such an injury would not be “imminent” for purposes of standing. The court explained:

It was thus certainly imminent that the private plaintiffs would be subject to the individual mandate, which applies to everyone, but not certain that they would be subject to the shared responsibility payment, which exempts certain people. . . . To bring a claim against the individual mandate, therefore, the plaintiffs needed to show injury from the individual mandate—not from the shared responsibility payment.

Third, the District Court record in NFIB reflected this conception of the Article III injury:

Accordingly, the district court in NFIB ruled that the private plaintiffs were injured by the ACA “because of the financial expense [they would] definitively incur under the Act in 2014,” and the private plaintiffs’ need “to take investigatory steps and make financial arrangements now to ensure compliance then.” . . . The record evidence in that case supported this conclusion. Mary Brown, one of the private plaintiffs in that case, for example, had declared that “to comply with the individual insurance mandate, and well in advance of 2014, I must now investigate whether and how to rearrange my personal finance affairs.” . . .  At the Eleventh Circuit, all parties agreed that Mary Brown had standing. . . .  Congress could have reasonably contemplated people like Mary Brown. As Mr. Katsas explained at oral argument in the Supreme Court, “Congress reasonably could think that at least some people will follow the law precisely because it is the law.”

Fourth, the declarations from the two private plaintiffs (Nantz and Hurley) assert the same injury as that at issue in NFIB:

It is undisputed that Hurley and Nantz are the objects of the individual mandate and that they have purchased insurance in order to comply with that mandate. Record evidence supports these conclusions. In his declaration in the district court, Nantz stated, “I continue to maintain minimum essential health coverage because I am obligated.” Similarly, Hurley averred in his declaration that he is “obligated to comply with the ACA’s individual mandate.” They both explain in their declarations that they “value compliance with [their] legal obligations” and bought insurance because they “believe that following the law is the right thing to do.” Accordingly, the district court expressly found that Hurley and Nantz bought health insurance because they are obligated to, and we must defer to that factual finding. The evidentiary basis for this injury is even stronger than it was in NFIB. In the instant case, the individual mandate has already gone into effect, compelling Nantz and Hurley to purchase insurance now as opposed to two years in the future.

The emphasized sentence is important. The argument for standing in 2019 is even stronger than the argument for standing in 2012.

Fifth, the panel cites CBO reports from 2008 and 2017, which predicted that some people would purchase insurance even in the absence of a penalty:

The intervenor-defendant states acknowledge a 2017 report from the Congressional Budget Office indicating that “a small number of people” would continue to buy insurance without a penalty “solely because” of a desire to comply with the law. . . . This report is at least somewhat consistent with a 2008 Congressional Budget Office report, relied on by the state plaintiffs, that “[m]any individuals” subject to the mandate, but not the shared responsibility payment, will obtain coverage to comply with the mandate “because they believe in abiding by the nation’s laws.” Whether this group of law-abiding citizens includes “many individuals” or “a small number of people,” Nantz and Hurley have undisputed evidence showing that they are a part of this group.

Sixth, the court states the precise nature of the injury: time and money.

The threat of a penalty that Hurley and Nantz would face under the pre-2017 version of the statute is one potential form of injury, but it is far from the only one. We have held that the costs of compliance can constitute an injury just as much as the injuries from failing to comply. Thus, in this instance, it is this injury—the time and money spent complying with the statute, not the penalty for failing to do so—that constitutes the plaintiffs’ injury.

This analysis largely follows my own reading of the case.

The standing section of Judge King’s dissent begins at p. 68. The dissent does not address the standing issues from NFIB. Rather, the dissent focuses on the well-worn arguments about toothless mandates and self-inflicted injuries. All of the arguments about self-inflicted injuries were present in 2012, but were not accepted.

I welcome any response to my posts about the standing arguments in NFIB. Once you acknowledge that the individual plaintiffs in NFIB had standing, there is little left to debate.

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Those wondering when the U.S. Court of Appeals for the Fifth Circuit would decide Texas v. United States, the latest challenge to the Affordable Care Act (ACA) need wonder no longer, as the opinion was released this afternoon. In short, a divided panel decided that the courts have jurisdiction to hear the case and the appeal, the individual mandate is unconstitutional because Congress’ decision to zero out the penalty means that it may no longer be construed as a tax, and that the question of severability is complex and difficult and must be reconsidered by the district court.

Judge Elrod wrote for the panel, joined by Judge Englehardt. Judge King dissented.

Judge Elrod’s opinion for the court begins:

The Patient Protection and Affordable Care Act (the Act or ACA) is a
monumental piece of healthcare legislation that regulates a huge swath of the
nation’s economy and affects the healthcare decisions of millions of Americans.
The law has been a focal point of our country’s political debate since it was
passed nearly a decade ago. Some say that the Act is a much-needed solution
to the problem of increasing healthcare costs and lack of healthcare
availability. Many of the amici in this case, for example, argue that the law
has extensively benefitted everyone from children to senior citizens to local
governments to small businesses. Others say that the Act is a costly exercise
in burdensome governmental regulation that deprives people of economic
liberty. Amici of this perspective argue, for example, that the Act “has deprived
patients nationwide of a competitive market for affordable high-deductible
health insurance,” leaving “patients with no alternative to . . . skyrocketing
premiums.” Association of American Physicians & Surgeons Amicus Br. at 15.
None of these policy issues are before the court. And for good reason—
the courts are not institutionally equipped to address them. These issues are
far better left to the other two branches of government. The questions before
the court are far narrower: questions of law, not of policy. Those questions are:
First, is there a live case or controversy before us even though the federal
defendants have conceded many aspects of the dispute; and, relatedly, do the
intervenor-defendant states and the U.S. House of Representatives have
standing to appeal? Second, do the plaintiffs have standing? Third, if they do, is the individual mandate unconstitutional? Fourth, if it is, how much of the
rest of the Act is inseverable from the individual mandate?
We answer those questions as follows: First, there is a live case or
controversy because the intervenor-defendant states have standing to appeal
and, even if they did not, there remains a live case or controversy between the
plaintiffs and the federal defendants. Second, the plaintiffs have Article III
standing to bring this challenge to the ACA; the individual mandate injures
both the individual plaintiffs, by requiring them to buy insurance that they do
not want, and the state plaintiffs, by increasing their costs of complying with
the reporting requirements that accompany the individual mandate. Third,
the individual mandate is unconstitutional because it can no longer be read as
a tax, and there is no other constitutional provision that justifies this exercise
of congressional power. Fourth, on the severability question, we remand to the
district court to provide additional analysis of the provisions of the ACA as they
currently exist.

Judge King’s dissent begins:

Any American can choose not to purchase health insurance without legal
consequence. Before January 1, 2018, individuals had to choose between
complying with the Affordable Care Act’s coverage requirement or making a
payment to the IRS. For better or worse, Congress has now set that payment
at $0. Without any enforcement mechanism to speak of, questions about the
legality of the individual “mandate” are purely academic, and people can
purchase insurance—or not—as they please. No more need be said; it has long
been settled that the federal courts deal in cases and controversies, not
academic curiosities.
The majority sees things differently and today holds that an
unenforceable law is also unconstitutional. If the majority had stopped there,
I would be confident its extrajurisdictional musings would ultimately prove
harmless. What does it matter if the coverage requirement is unenforceable by
congressional design or constitutional demand? Either way, that law does not
do anything or bind anyone.
But again, the majority disagrees. It feels bound to ask whether
Congress would want the rest of the Affordable Care Act to remain in force now
that the coverage requirement is unenforceable. Answering that question
should be easy, since Congress removed the coverage requirement’s only
enforcement mechanism but left the rest of the Affordable Care Act in place. It
is difficult to imagine a plainer indication that Congress considered the
coverage requirement entirely dispensable and, hence, severable. And yet, the
majority is unwilling to resolve the severability issue. Instead, it merely
identifies serious flaws in the district court’s analysis and remands for a doover, which will unnecessarily prolong this litigation and the concomitant
uncertainty over the future of the healthcare sector.
I would vacate the district court’s order because none of the plaintiffs
have standing to challenge the coverage requirement. And although I would
not reach the merits or remedial issues, if I did, I would conclude that the
coverage requirement is constitutional, albeit unenforceable, and entirely
severable from the remainder of the Affordable Care Act.

(developing. . . will continue to update).

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As House lawmakers on Wednesday debated the articles of impeachment against President Donald Trump, the back-and-forth fell into a familiar rhythm: Democrats argued that checking Trump’s actions should transcend partisan politics, while Republicans repeatedly said the proceedings amounted to nothing more than partisan political theatre. But Rep. Justin Amash (I–Mich.), who now identifies with neither party, sought to remind his colleagues that the political nature of the moment is not a valid reason to dismiss the proceedings. 

“I rise today in support of these articles of impeachment,” he said on the House floor. “Not as a Democrat, not as a Republican, but as an American, who cares deeply about the Constitution, the rule of law, and the rights of the people.” The five-term congressman noted that the impeachment process should not be about “policy disagreements,” ineffective governance,” or “criminality based on statutes that did not exist at the time our Constitution was written.” Instead, he said, it “is about maintaining the integrity of the office of the presidency and ensuring that executive power is directed toward proper ends in accordance with the law.”

Amash left the Republican party in July after declaring in May that he believed Trump committed impeachable offenses. “Today, I am declaring my independence and leaving the Republican Party,” he wrote in The Washington Post. “No matter your circumstance, I’m asking you to join me in rejecting the partisan loyalties and rhetoric that divide and dehumanize us….The two-party system has evolved into an existential threat to American principles and institutions.”

The congressman has since accused Republicans of crying partisanship in order to disguise their own political motivations. He has also criticized members of the GOP for misrepresenting the impeachment process, something he outlined on the floor today, as well as for some stating outright that they will not serve as impartial jurors during a trial:

Republicans are making a concerted effort to mislead. “High Crimes and Misdemeanors” is pointedly NOT about statutory crimes. In fact, the Constitution doesn’t provide for impeachment for ordinary crimes; they must be “high.” Impeachable wrongdoing must relate to abuse of office.

— Justin Amash (@justinamash) December 12, 2019

What did the Framers mean by “high Crimes and Misdemeanors”? “High” denotes high office. They were not describing statutory misdeeds but rather “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.…

— Justin Amash (@justinamash) December 13, 2019

Senator Graham has chosen to violate his oath to support and defend the Constitution, his oath to do impartial justice in an impeachment trial, and his duty to represent all the people of his state, not just those who share his political views or desire a particular outcome. https://t.co/bjz5PlkHyk

— Justin Amash (@justinamash) December 14, 2019

“This should be unanimous, not partisan,” Amash said earlier this month. “Impeachment in the House is not a conviction. The trial happens in the Senate. All the House does is charge impeachable conduct. All we need is probable cause. That threshold is easily met with the existing evidence.” 

Republicans have continuously denounced the evidence against Trump, discounting the testimony of multiple witnesses and characterizing it as flimsy hearsay. The president is facing impeachment for abuse of power and obstruction of Congress following accusations that he violated his oath of office in order to pressure Ukraine into investigating his political foes.

“Conservatives will someday face the horrible truth that the Republican Party fought so hard to justify and excuse an amoral and self-serving president,” Amash tweeted last night, “and what he gave them in return was bigger government and erosion of the principles and values they once claimed to cherish.”

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Buried within more than 2,300 pages of legislation authorizing more than $1.4 trillion in spending is a collection of special interest tax incentives dumped into two crucial budget bills at the last minute—including tax breaks for racehorses, breweries, and biofuels.

Regardless of the merits of any of those individual policies, their last-second inclusion in massive, must-pass budget bills is more evidence that Congress’ budget-making process is broken.

The House voted Tuesday to pass the two budget bills that must be signed by President Donald Trump before next week in order to avert a government shutdown. The Senate is expected to vote on the bills before the end of the week.

“What a bucket of garbage this bill is,” tweeted Maya MacGuineas, president of the Committee for a Responsible Federal Budget, a nonpartisan group that advocates for reducing the deficit. The last-second inclusion of so-called “zombie extenders”—temporary tax breaks, including some that had previously expired as far back as 2017—is “simply moronic,” she wrote in a follow-up tweet.

Producers of biodiesel and the owners of short-line railroads (rail lines that connect to regional or national rail networks) stand to score some of the biggest Christmas presents once Congress passes the budget bills. Both interests had seen special tax breaks expire in 2017, but will now get retroactive tax breaks to cover the past two years and further tax breaks through 2022, according to The Wall Street Journal.

All told, there are more than two dozen industry-specific tax incentives included in the budget bills, Bloomberg reports. That includes one-year extensions for tax credits given to breweries, distilleries, owners of racehorses, motorsports race tracks, and producers of wind energy.

The Joint Committee on Taxation, a congressional number-crunching service, estimates that the temporary and extended tax breaks included in the budget bills will cost about $54 billion over 10 years.

An additional corporate welfare section was added in the middle of the night. These spending bills are now 2,366 pages. https://t.co/akvC6c5eJm

— Justin Amash (@justinamash) December 17, 2019

On their own, many of the small tax breaks included in the budget bills might be defensible. Distilleries, for example, faced the prospect of a 400 percent increase in federal alcohol excise taxes on January 1, according to the Distilled Spirits Council, which praised the one-year extension of a reduction in that tax.

But even when the policy is sound, the process is a total mess. If Congress believes there is a good reason to continue giving specific tax breaks to distilleries or the horse-racing industry, then it should act to make those tax breaks permanent. And it should do so as part of a deliberative process that determines budgetary priorities, rather than tacking a temporary extension onto a must-pass budget bill.

Indeed, one of the arguments Republicans used to justify cutting the corporate income tax from 35 percent to 21 percent in 2017 was that it would eliminate the need for so many industry-specific tax breaks. Good tax policy would be a lower rate and fewer carve-outs.

Retroactive tax breaks—like the one for bio-diesel, a top priority for lawmakers from Midwestern states particularly—make even less sense. Why should the government incentivize decisions that those businesses made years ago? That’s just a last-second giveaway to politically connected businesses who hired good lobbyists.

Even without the temporary tax credit extensions, the budget bills are a fiscal disaster. All told, they will add an estimated $500 billion to the national debt over the next decade. Most of that total comes from the repeal of three taxes that were originally part of the Affordable Care Act, including a tax on medical devices and another tax on high-end health insurance policies.

Good budgeting requires setting priorities based on the fact that the federal government collects a finite amount of revenue each year. Collecting less tax revenue requires spending less money; spending more money requires increased taxes. Congress has proven, once again, that it is unable or unwilling to understand that.

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Burning Man, a week-long art party/experimental community held yearly on the Black Rock playa in Nevada, exists on the sufferance of the Bureau of Land Management (BLM), the federal agency that controls the land on which the annual event occurs.

In a lawsuit filed last week in U.S. District Court in D.C. against the Winnemucca District Office of the BLM (plus other involved federal agents and agencies), Burning Man is complaining that the suffering imposed on them in terms of fees and delays while seeking permitting violates their rights and the government’s own procedures.

Specifically, the suit (Black Rock City v. Bernhardt et al) claims the event is being harmed by:

the costs imposed by Defendant Winnemucca District Office for the Bureau of Land Management (“BLM”), the process by which those costs have been demanded, the inadequate justification for the costs, and the unreasonable delay confronted by BRC [Black Rock City LLC, which throws the event] during the appeal of those costs.

In addition to unreasonable conduct on the part of BLM, Defendant Interior Board of Land Appeals (“IBLA”) has unlawfully withheld and unreasonably delayed decisions in multiple cost recovery appeal proceedings that have been filed by BRC over the past four years. These appeals filed with the IBLA are necessary to challenge the burdensome, unjustified, and excessive costs and other unlawful practices imposed…

The suit goes on to insist that there are not sufficient legal reasons for some of the BLM’s “inflated and unnecessary” cost demands, and that the process does not allow Burning Man to do anything other than pay them in order to hold the annual event at its set time, the week prior to Labor Day.

By law, Burning Man insists, the “BLM must provide the permittee with a reasoned, written explanation for all assessed costs supported by the facts of record to demonstrate
that such costs are not arbitrary, capricious, or an abuse of discretion” and that the agency has failed to do so. (In addition to coverage of their costs in permitting and managing the event, the BLM also takes a straight 3 percent of the event’s gross receipts on top of that.)

Burning Man has filed six appeals about the imposed fees, and insist the IBLA has “unlawfully withheld and unreasonably delayed decisions” on their appeals. Since BLM doesn’t have to change its cost-imposing behavior until that appeals process leads to some conclusion, the suit insists that IBLA’s “unreasonable delay creates a condition of unfettered and unchecked control by Defendant BLM over BRC and threatens the continued viability of the Burning Man Event. IBLA’s failure to act is effectively a denial without recourse….”

The lawsuit is pushing to make “this Court declare IBLA’s inaction an unlawful abuse of discretion, treat such inaction by IBLA as constructive denial of BRC’s appeals, and…provide judicial resolution.” And if they can’t get that result, Burning Man wants the Court to just force IBLA to actually come to a decision on its owe regarding the appeals.

The agency made a complicated new series of demands on the event before issuing the permit in 2019, many with only tenuous connections to any issue actually related to land management.

In an emailed statement, the Burning Man Project writes that the suit was necessary because “BLM has been charging our organization for unreasonable costs related to the annual Burning Man event in Northern Nevada. Burning Man Project has been seeking IBLA relief from these costs for nearly four years, and the IBLA has unreasonably denied that relief in violation of the Administrative Procedure Act. This case is our attempt to break this cycle.”

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Donald Trump’s angry six-page letter to House Speaker Nancy Pelosi (D–Calif.) offers both frivolous and plausible grounds for questioning his impeachment. Once you get past the bluster, bragging, idiosyncratic capitalization, and other Trump tics, it offers a useful summation of the reasons Republicans are so outraged by a process that Democrats portray as a straightforward fulfillment of their constitutional responsibilities.

Trump calls impeachment an “unconstitutional abuse of power,” “an illegal, partisan attempted coup,” an “election-nullification scheme,” and an “attempt to undo the election of 2016.” In practical terms, of course, Trump’s removal from office through impeachment would not “undo the election,” since his party would still control the White House, with Vice President Mike Pence, who was elected on the same ticket as Trump, taking over his position. That’s not exactly a coup. What about the claim that impeachment is illegal and unconstitutional?

Article II, Section 4 of the Constitution says the president “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Article I, Section 2 says the House of Representatives “shall have the sole power of impeachment,” while Section 3 says “the Senate shall have the sole power to try all impeachments.” Trump thinks the House does not have a good reason to impeach him, but that does not mean it lacks the constitutional authority to do so.

Trump claims “the Articles of Impeachment introduced by the House Judiciary Committee are not recognizable under any standard of Constitutional theory, interpretation, or jurisprudence,” because “they include no crimes, no misdemeanors, and no offenses whatsoever.” But while impeachable offenses can include criminal offenses, they also include abuses of power that betray the public trust but do not necessarily violate any particular statute. George Washington University law professor Jonathan Turley, the lone Republican witness at the House Judiciary Committee’s December 4 hearing on impeachment, made that point repeatedly during his testimony, which Trump cites when it supports his arguments. Trump’s own lawyer, Rudy Giuliani, has conceded that impeachable offenses are not necessarily illegal, citing a pre-emptive self-pardon as an example of conduct that “would just be unthinkable” and “would lead to probably an immediate impeachment,” even though the Constitution imposes no limits on the president’s pardon power.

The question, as framed by the articles of impeachment against Trump, is not whether he has broken the law but whether he has abused his powers in a way egregious enough to justify his removal. Turley, who harshly criticized the impeachment process as rushed and incomplete, worries that abuse-of-power allegations can be dangerously amorphous when detached from the elements required to prove a crime. He nevertheless concedes that “the use of military aid for a quid pro quo to investigate one’s political opponent, if proven, can be an impeachable offense.”

Trump does himself no favors by continuing to insist in his letter to Pelosi that his July 25 telephone conversation with Ukrainian President Volodymyr Zelenskiy was “perfect” and that the reconstructed White House transcript of that call refutes the claims against him:

I said to President Zelensky: “I would like you to do us a favor, though, because our country has been through a lot and Ukraine knows a lot about it.” I said do us a favor, not me, and our country, not a campaign. I then mentioned the Attorney General of the United States. Every time I talk with a foreign leader, I put America’s interests first, just as I did with President Zelensky.

This parsing of us vs. me proves nothing, since us is ambiguous. It could refer, as Trump says, to the United States, or it could refer to Trump and his allies. Trump illustrated that ambiguity during the call by asking Zelenskiy to work with Giuliani, his personal lawyer, as well as Attorney General William Barr. The essence of the allegation against Trump is precisely that he framed a “favor” for him—a Ukrainian investigation of former Vice President Joe Biden, a leading contender to oppose him in next year’s election—as a favor for the U.S. government, which was at that very moment withholding congressionally approved military aid to Ukraine by presidential fiat.

Trump’s request for that “favor” immediately followed Zelenskiy’s expression of gratitude for U.S. aid and his mention of his government’s plans to buy anti-tank missiles from the United States. The conjunction of those two issues gives rise to a fair inference that there was a connection between the investigation Trump sought and the assistance that Zelenskiy was counting on. As Turley noted, Trump’s conversation with Zelenskiy “was anything but ‘perfect’ and his reference to the Bidens was highly inappropriate.” That Trump still seems oblivious to that point is of a piece with his general lack of self-awareness, disregard for diplomatic norms, and inability to admit when he is wrong.

Trump emphasizes that Zelenskiy has said he did not feel “pressure” to comply with Trump’s request, which is both highly implausible and completely understandable given Ukraine’s dependence on U.S. support. Since Zelenskiy will be dealing with Trump at least until January 2021 and quite possibly for another four years after that, it is perfectly rational for him to worry about the risks of reinforcing the case for impeachment, especially if he views Trump as a mercurial president driven by personal motives. And although Trump claims Zelenskiy “has repeatedly declared that I did nothing wrong,” Zelenskiy actually criticized Trump’s hold on the military aid, saying, “If you’re our strategic partner, then you can’t go blocking anything for us. I think that’s just about fairness. It’s not about a quid pro quo.” While Trump may read that as confirmation that he “did nothing wrong,” it seems more like a plea from a desperate ally who does not want his country’s relationship with the United States to be tangled up in domestic American politics.

In Trump’s telling, Democrats latched onto his “totally appropriate” interaction with Zelenskiy as the latest excuse for doing something they had long wanted to do:

Nineteen minutes after I took the oath of office, the Washington Post published a story headlined, “The Campaign to Impeach President Trump Has Begun.” Less than three months after my inauguration, Representative Maxine Waters stated, “I’m going to fight every day until he’s impeached.” House Democrats introduced the first impeachment resolution against me within months of my inauguration, for what will be regarded as one of our country’s best decisions, the firing of James Comey (see Inspector General Reports)—who the world now knows is one of the dirtiest cops our Nation has ever seen. A ranting and raving Congresswoman, Rashida Tlaib, declared just hours after she was sworn into office, “We’re gonna go in there and we’re gonna impeach the motherf****r.” Representative Al Green said in May, “I’m concerned that if we don’t impeach this president, he will get re-elected.” Again, you and your allies said, and did, all of these things long before you ever heard of President Zelensky or anything related to Ukraine.

While that history understandably reinforces the suspicion that Democrats are targeting Trump for purely partisan reasons, it is logically irrelevant to the merits of the allegations that actually led to his impeachment. There is a reason why Pelosi and other Democratic leaders resisted impeachment for so long but changed their minds after Trump’s conduct vis-à-vis Ukraine came to light. If Trump did in fact abuse his presidential powers for personal gain by pressuring a foreign government to conduct an investigation aimed at discrediting a political rival (and there is compelling evidence that he did), that would be a clear betrayal of the public trust.

In defending himself against that charge, Trump complains, “I have been deprived of basic Constitutional Due Process,” including “the right to present evidence, to have my own counsel present, to confront accusers, and to call and cross-examine witnesses.” But those guarantees for defendants in criminal trials do not apply in the context of impeachment, and Trump has in any case rejected opportunities to present his side of the story in the House while refusing, based on a sweeping claim of executive privilege, to provide documents or consent to testimony by current or former administration officials. During his trial in the Senate, Trump could avail himself of all the rights he says he has been denied, depending on the rules that Senate Majority Leader Mitch McConnell (R–Ky.) settles on. But McConnell, who says his approach will be dictated by what Trump wants, apparently plans to conduct a minimal trial without witnesses, leading to a quick and predetermined acquittal along party lines.

McConnell is right that he has no obligation to fill gaps in the case against Trump by calling witnesses, such as former National Security Adviser John Bolton and acting White House Chief of Staff Mick Mulvaney, whom the House decided not to subpoena in the hope of avoiding prolonged court battles over whether they could be compelled to testify. And Trump is right that charging him with obstruction of Congress seems premature, since the House did not bother to test his executive privilege claims in court, which could have resulted in orders requiring the testimony of Bolton et al. as well as the production of relevant documents.

At the same time, the assumption that such highly placed sources would have incriminating things to say is rather telling. The upshot of a hasty impeachment in the House and a hasty acquittal in the Senate is that the question of whether Trump committed “high crimes and misdemeanors” will never be fully considered.

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The same Congress that just passed a deficit-increasing spending package is so worried about the long-term consequences of bad decisions that it has decided to raise the smoking age. The budget deal that passed the House Tuesday contains a provision raising the minimum age to buy nicotine products, like cigarettes and vapes, to 21.

The push to increase the minimum age to buy tobacco products has grown in recent years. In 2016, Hawaii became the first state to raise its smoking age. Since then, 19 states and over 530 local governments have increased their smoking age to 21, according to Tobacco 21, an advocacy group.

The House-passed bill gives the federal government 180 days to write new regulations barring the sale of tobacco to those under 21, plus another 90 days for those new regulations to go into effect. Provided the bill is approved by the Senate and White House, as expected, a 21-year-old smoking age will be the law of the land by summer 2020.

The Washington Post reports that Altria and Reynolds American Inc. have both come out in support of raising the smoking age. Tony Abboud of the Vapor Technology Association told the Post that the move is “most significant step that can be taken to reduce youth access and use.”

Compare that to Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, who wrote in a press release that, “raising the tobacco age to 21 is a positive step, but it is not a substitute for prohibiting the flavored e-cigarettes that are luring and addicting our kids…Juul and Altria have hijacked the tobacco 21 issue for their own nefarious reasons as a shield to fight efforts to prohibit flavored e-cigarettes.”

Only a handful of lonely liberty advocates have been fighting to let adults under 21 keep buying cigarettes if they want.

Libertarian-leaning Thomas Massie (R–Ky.) tweeted about how raising the smoking age will cost $18 million, which includes grant funding for states to perform unannounced inspections of tobacco retailers.

Hardly a peep today about the federal government banning sales of tobacco products to 18,19, and 20 year old adults yesterday.

The cost to implement… $18,580,790 per year. Hey folks, no one said this nanny state was going to be cheap.

Also, random unannounced inspections! pic.twitter.com/OY7GPqGiNf

— Thomas Massie (@RepThomasMassie) December 18, 2019

The evidence for the efficacy of a 21-and-up policy for nicotine purchases is also pretty thin. An oft-cited example is Needham, Massachusetts, which raised its smoking age to 21 in 2005, and subsequently saw a much greater drop in the teen smoking rate than surrounding towns.

As Michelle Minton, a policy analyst at the Competitive Enterprise Institute, pointed out in a November blog post, these extraordinary declines in teen smoking in Needham were temporary. Teen smoking was soon falling faster in neighboring towns that had not adopted a higher smoking age. Indeed between 2012 and 2014, teen smoking in Needham actually increased.

Minton speculates that by cutting those under 21 off from buying e-cigarettes, a proven smoking cessation product, Needham’s policy simply encouraged young smokers to stick to illicit but more readily available cigarettes.

In addition to the pragmatic case against raising the smoking age, there’s also something to be said for letting adults do what they want as long as they are not harming anyone.

It’s a tired but nevertheless true argument that 18 is the start of adulthood, and thus should be the age at which we allow humans in America to make their own decisions. The state allows 18-year-olds to join the military, to sign for loans, to decide where they will live, and to marry. Someone capable of making those choices can also probably decide whether they want to buy a pack of cigarettes or a Juul.

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Republican state lawmakers in Alabama have identified a vulnerable class that they claim needs special protections: police officers.

“Everyone agrees that it should be a hate crime to shoot a police officer,” said state Sen. Cam Ward (R–Alabaster), the chairman of the Judiciary Committee. The legislature will seek to make that position official in February when it considers state Sen. Chris Elliott’s (R–Daphne) proposal to add law enforcement to the list of groups protected by the state’s 1994 hate crime legislation. “I don’t know anyone who opposes that,” Ward told AL.com.

Except, there are many people who oppose modern hate crime laws. In 2010, the liberal writer Jesse Lerner wrote an excellent historical critique of contemporary hate crime laws for Dissent, noting that early models of hate crime legislation focused “on the deprivation of constitutional rights, rather than on the identity of the victim.” In recent decades,  Lerner writes, legislators have sought to redefine hate crimes “on the basis of the victim’s identity, rather than on the victim’s equality under the law.“ 

Indeed, an offender faces a lengthier sentence in most states today if his or her actions were seemingly motivated by heinous bias against someone’s gender, race, religion, and/or disability. To the distaste of many Republicans, congressional Democrats have pushed to expand those protections to include LGBTQ identity. Yet most offenses for which a hate crime enhancement is applicable (or being sought) are already illegal activities. 

Alabama Republicans used to understand this and were able to resist writing additional criminal enhancements into state law. Now they’re threatening to open the flood gates all the wider by extending hate crime enhancements to an entire profession. Where will that end?

We can look to Louisiana, which was the first state to protect cops under similar legislation. The law has since been used to classify both resisting arrest and shouting slurs at cops as hate crimes. The latter has also happened multiple times in Pennsylvania. 

Hate crime laws seek to enhance punishments for offenders who attack a person or their property based on specific aspects of their identity; is the same crime committed against a person whose identity is incidental to the offense not as bad? By punishing ideological and religious violence, we are treating agnostic violence—or violence motivated by an unprotected aspect of a person’s identity—as less bad. There is potential for abuse in that approach, as evidenced by what’s happening in Louisiana and Pennsylvania; but in a more subtle way, it erodes equality before the law.  

Alabama lawmakers cite the murder of officer Billy Fred Clardy III as reason enough to act. But the data here actually cuts against Republicans’ stated goals. The vast majority of violent encounters experienced by cops are not motivated by ideological hatred for the police, but are tied to the very nature of the job they signed up for. What’s more, murders of police officers are at record lows. 

It seems that Republicans in Alabama, who once challenged the idea that any group should have their rights elevated due to their identity, have learned to demand it when it’s politically expedient.

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Joey Mucha is a three-time Skee-Ball national champion and the owner of Joey the Cat, an arcade rental, repair, and events company that he started in 2010 from his one-bedroom apartment in San Francisco.

After winning some prize money, Mucha was able to purchase his own fleet of Skee-Ball machines and other arcade games. In 2014, he purchased a former car repair shop and turned it a private event space and a place for fixing broken arcade games.

In April of 2019, he decided to convert his space into a restaurant, bar, and arcade. His property was already zoned for this use, but despite following all applicable codes and regulations, Mucha still had to argue his case at a public Planning Commission hearing in November. His project was jeopardized by a process known as discretionary review, in which any member of the public, in exchange for a $600 fee, can ask San Francisco’s Planning Commission to hold a hearing to review building permits.

So far in 2019, the commission has publicly heard 91 requests for discretionary review. Since every building permit in the city is subject to this process, it can add significantly to the construction costs.

“Commissioners are empowered to reject most any permit, regardless of whether it satisfies the underlying zoning code,” wrote Reason’s Christian Britschgi in a piece about Mucha’s fight.

While Mucha did end up getting permission to move forward with his renovations, the story of how the project was nearly stopped, and what Mucha endured in order to prevail, underscores how even the most benign land-use changes in San Francisco can be hampered by red tape.

Produced by John Osterhoudt. Additional camera by James Marsh and Zach Weissmueller.

Music Credit: Sadstorm by MADGOHAPPY

Fiona Ma Photo Credit: Randy Pench/ZUMA Press/Newscom

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