Tag: hit&run

The late Judge Robert Bork infamously compared the Ninth Amendment to the U.S. Constitution to an “inkblot.” The text’s admonition that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” was insufficiently determinate and open to broad interpretation. Any claim that a given right is protected through the Ninth Amendment would likely reveal more about the values of the individual making the claim than the Constitution itself. Accordingly, Bork warned, the Ninth Amendment should not be relied upon to invalidate legislation. After all, a judge cannot rely upon a provision of the Constitution to invalidate legislation if the judge does not know what that provision means.

Bork’s assessment was criticized by some as a departure from his favored judicial philosophy of originalism. However indeterminate, the text of the Ninth Amendment is part of the Constitution’s text and if the original public meaning of the Constitution is to govern, this text must control. Whether the Ninth Amendment is an instruction to legislatures or a proper basis for judicial review of legislative action, it is a part of the Constitution that should be interpreted and applied as any other. It may be that resolving the amendment’s meaning may be more difficult than other, more determinate constitutional provisions, but that does not give judges (or anyone else) license to act as if the amendment does not exist or is covered by an inkblot. It was ratified through the same process as every other amendment, and should be interpreted and applied through the same methods.*

In the current impeachment debate, some of the President’s defenders seem to have adopted a similar approach to the phrase “high Crimes and Misdemeanors” in Article II, Section 4. Whereas treason and bribery are clearly defined offenses with specifically identified elements, we are told, it is less clear of what “high Crimes and Misdemeanors” consists. Further, this lack of determinacy creates a risk that different legislative majorities at different times will reach different conclusions about what constitutes an impeachable offense and, worse, that such conclusions will often be driven by partisan conclusions. Thus, it is argued, unless something clear, such as treason, bribery, or perhaps some other criminal act, can be shown, a President should not be impeached.

One problem with this argument – particularly when made by folks who otherwise embrace originalist approaches to constitutional interpretation – is that it is quite anti-originalist. The phrase “High Crimes and Misdemeanors” may be less determinate than “treason,” not least because the latter is defined in the Constitution itself, but it is still a part of the constitution and is still subject to interpretation. That interpreting it and applying it may be more difficult does not mean it should not be interpreted and applied. There is no license for excising it from the Constitution or pretending it does not exist. Indeed, there are many clauses in the Constitution that, at first glance, are no less indeterminate, and yet few make the argument that they should not be relied upon.

As it happens, the framers of the Constitution actually considered a more determinate list of impeachable offenses, and expressly chose a different course. James Madison objected to the inclusion of “maladministration” as an impeachable offense, but leaving treason and bribery as the only impeachable offenses was expressly rejected at the Constitutional Convention as the delegates voted to include “other high Crimes and Misdemeanors” in Article II, Section 4. Thus to refuse to consider “other high Crimes and Misdemenaors” as impeachable offenses is to excise a portion of the constitutional text.

As it also happens, the phrase “high Crimes and Misdemeanors” was better understood at the time of ratification than some seem willing to acknowledge. Those present in Philadelphia, and at the various state ratifying convention, were familiar with the history of impeachments in England as well as in the colonies. Indeed, the impeachment trial of William Hastings was occurring while the convention was underway, and was referred to during the proceedings. It was well understood that “high Crimes and Misdemeanors” referred to the sorts of abuses that only public figures could commit, and need not be crimes defined by statute or recognized at common law. Indeed, it was also understood that a President’s misuse of core executive power, such as in the conduct of foreign affairs or through the issuance of a pardon, could constitute an impeachable act.

The precise boundaries of what constitutes a high crime or misdemeanor may not be as determinate as what constitutes treason, but it is hardly just an inkblot. Even if we don’t know with precision when abuse of power crosses the line from contemptible to impeachable, we know what sorts of actions should trigger such concerns (and so any President who cares is on notice of what sorts of action to avoid). To suggest otherwise is to embrace the idea that when a constitutional provision is difficult to interpret or apply, it can be ignored, and that is an argument no originalist should accept.

 

 

* To say that the Ninth Amendment should be interpreted and applied in the same manner as other amendments is not to say that the Ninth Amendment is necessarily a sound basis for invalidating federal or state legislation. For instance, some argue that the Ninth Amendment is best understood as something of an admonition to legislatures or as a reaffirmation that rights protected under state constitutions must still prevail against state legislatures, and not as a judicially enforceable constraint on legislative power. Others contest this interpretation. Both arguments may be made on originalist grounds. My point is that originalists should debate the original public meaning of this provision, not eschew its application.

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On Tuesday, the U.S. Court of Appeals for the D.C. Circuit turned away a set of challenges to the Food and Drug Administration’s regulation of electronic cigarettes and other vaping devices.  Specifically, in Nicopure Labs v. FDA, a unanimous panel held that the FDA’s regulation is neither arbitrary and capricious under the Administrative Procedure Act nor unconstitutional under the First Amendment. These conclusions are not particularly surprising, but it would still be premature to conclude the FDA’s current regulatory approach does not raise serious constitutional concerns.

The plaintiffs’ APA claims never struck me as particularly strong. Before the D.C. Circuit, Nicopure Labs and the Right to Be Smoke Free Coalition did not challenge the FDA’s decision to “deem” e-cigarettes and other vaping products to be “tobacco products.” Rather, they argued that the FDA acted arbitrarily and unlawfully in not taking the additional step of adopting an easier way for e-cigarettes to obtain pre-market approval form the FDA.

Under the Family Smoking Prevention and Tobacco Control Act (“Tobacco Act”), tobacco products not on the market prior to 2007 will be required to obtain approval from the FDA before they may be sold. Thus, once e-cigarettes were deemed to be tobacco products, they were subject to this statutory requirement. It would perhaps be a good idea for the FDA to facilitate the rapid approval of e-cigarettes, but it’s not a violation of the APA for the agency to fail to adopt this course As the court noted, the plaintiffs’ “wholesale objection is to Congress’ design, not to any arbitrariness on the FDA’s part in carrying it out.”

The panel also made quick work of the plaintiffs’ claim that it is unconstitutional to prohibit e-cigarette manufacturers from promoting their products through the distribution of free samples. Such a limitation, the plaintiffs’ tried to claim, violates the First Amendment. As I noted in my comments on the district court’s opinion, this argument is a bit of a stretch. A prohibition on free samples is, in effect, a prohibition on the price at which a product may be sold, and is thus best understood as economic regulation, not the regulation of speech, and I would have been shocked if even a single judge on the panel had concluded otherwise.

The plaintiffs’ other First Amendment claims, against the prohibition on making “modified risk” claims about e-cigarettes unless and until such products are approved as “modified risk tobacco products” by the FDA, were more serious, and I am not entirely convinced by the courts’ dismissal of these claims.

Under the FDA’s current interpretation of the Tobacco Act, it is unlawful for an e-cigarette manufacturer to simply inform consumers of things the FDA has itself said about their products, even with a disclaimer. According to the FDA, “the inhalation of nicotine (i.e. nicotine without the products of combustion) is of less risk to the user than the inhalation of nicotine delivered by smoke from combusted tobacco products,” yet an e-cigarette maker could not paste this language on their product package or include it in an ad. Nor could they say that “several studies support the notion that the quantity of toxicants [in e-cig vapor] is significantly less than those in tobacco cigarettes and tobacco smoke and similar to those contained in recognized nicotine-replacement therapies,” even thought the FDA has said as much in the Federal Register. And were an e-cigarette maker to say that “there is emerging data that some individual smokers may potentially use ENDS to transition away from combustible tobacco products” (again using the FDA’s own words), they would be making a “smoking cessation claim” which, according to the FDA, may only be made once the product in question has been approved as a drug or medical device.

The D.C. Circuit concluded that these prohibitions were fully consistent with the First Amendment. The requirement that e-cigarette makers seek and obtain FDA approval of their products as “modified risk tobacco products” before they can make factually true statements about e-cigarettes and their contents “is reasonably tailored to advance the substantial government interest in protecting the public health and preventing youth addiction.” As Judge Pillard explained:

Deliberately selling an e-cigarette as less risky without going through the requisite regulatory review for reduced-risk tobacco products renders the sale-as-labeled unlawful, just as selling saw palmetto extract as a drug without FDA premarket approval was unlawful.

It is true that saw palmetto extract may not be marketed as a drug without prior FDA approval, but prior D.C. Circuit decisions have held that the FDA may not prohibit factual statements about nutritional supplements and the like that fall short of medicinal claims.

In Pearson v. Shalala, for instance (another case concerning the FDA), the court explained that “when government chooses a policy of suppression over disclosure-at least where there is no showing that disclosure would not suffice to cure misleadingness-government disregards a ‘far less restrictive’ means.” This decision is not distinguished in Nicopure Labs. It is not even mentioned.

It’s not just D.C. Circuit precedent that is in tension with the Nicopure Labs holding. In Thompson v. Western States Medical Center, the Supreme Court warned that “We have . . . rejected the notion that the Government has an interest in preventing the dissemination of truthful commercial information in order to prevent members of the public from making bad decisions with the information.” According to Judge Pillard, however, the Court struck down the limitation on pharmacist speech at issue because the government had failed to identify any basis for its conclusion that warnings or disclaimers would be insufficient to safeguard the government’s interest. To me that is an awfully stingy interpretation of that Supreme Court decision.

Congress may have concluded that warning labels or disclaimers are insufficient (though not specifically with regard to e-cigarettes, as they were not on the market at the time the Tobacco Act was adopted. More importantly, is it really the case that a blanket Congressional finding is all it takes to defeat a First Amendment claim?

If restrictions on commercial speech are subject to heightened scrutiny, it would seem that more than a categorical assertion is required to justify the censorship of factually true statements. After all, as the Supreme Court held in Rubin v. Coors Brewing, the government “must demonstrate that harms it recites are real and that its restrictions will alleviate them to a material degree,” and no such showing has been made here.  If the FDA had to substantiate the basis for its proposed graphic warning labels for cigarettes, I would think the federal government should have to actually substantiate the claim that indisputably true statements are sufficiently misleading, even when accompanied by warnings or disclaimers, to justify a prior restraint on speech. Apparently not.

The reality is that while the FDA has acknowledged that e-cigarettes are less dangerous than traditional cigarettes, much of the public remains in the dark. And insofar as public perceptions of the relative risks of e-cigarettes affects whether smokers attempt to quit smoking, public misperception as to the relative risk of e-cigarettes cost lives. This does not obligate the FDA to sing the praises of e-cigarettes, or refrain from prudent regulation, but it should counsel against censoring speech that would inform the public – smokers in particular – and potentially save lives.

It is perhaps ironic that this opinion was released the same week as a review essay in Science extolling the potential benefits of e-cigarettes and warning of the dangers of prohibitionist regulatory approaches. In upholding the FDA’s actions, Judge Pillard was not content with deferring to the agency’s expertise. She instead put the court’s imprimatur on specific claims about the relative risks of e-cigarettes that stand in stark contrast to the opinion of some of the nation’s foremost health professionals.

From the opening line of the opinion, Nicopure Labs reads like a brief for an e-cigarette prohibitionist group, as if the judges themselves had concluded the e-cigarettes are a threat that must be regulated. To my mind, it would have been better for the court to remain more agnostic on the policy merits of FDA’s moves, confining its analysis to the legal merits of the FDA’s moves.

I understand the D.C. Circuit’s reluctance to invalidate the regulatory scheme for tobacco products Congress created, particularly as such a decision could up-end some aspects of drug regulation as well. But I think it was a mistake to pretend as if public health concerns are indisputably on the side of the FDA’s actions and to be so dismissive of the serious First Amendment implications of upholding prior restraints on truthful speech that could save lives.

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The Times has a piece today suggesting the order has “divided” the Jewish community, even though all mainstream groups, including liberal groups like the ADL, support it.

First, the Times managed to find two prominent Reform rabbis who still have not gotten the memo that the initial Times’ reporting on this was misleading. As I’ve explained previously, contra the initial Times story, (a) the Order doesn’t define Jews as a nationality; and (b) the policy it embraces is no different than policy under the Obama and Bush administrations, in holding that Jews are protected from discrimination under Title VI of the 1964 Civil Rights Act when others perceive them to be the equivalent of a race or nationality and discriminate against them on that basis.

The Times quotes Rabbi Hara Person, the chief executive of the Central Conference of American Rabbis, as follows: “Not to overdramatize, but it feels dangerous,” she said. “I’ve heard people say this feels like the first step toward us wearing yellow stars.” That’s not just overdramatizing, that’s completely absurd.

Plus this, “This is deeply objectionable, going back centuries in anti-Semitic thinking,” said Rabbi Daniel G. Zemel, who leads Temple Micah, a Reform congregation in Washington.

The Times adds, “The politics of the executive order seemed clear when it was signed on Wednesday. Attending the signing ceremony were prominent Jews and evangelical Christians, Democrats and Republicans, and some big-name donors.” No mention that many big-name Democrats supported the order, many of whom absented themselves from the signing only because of the optics given the ongoing impeachment drama.

The article gets somewhat less obviously tendentious further on, and even notes–for the first time in the Times’s coverage of the Order–that the Obama administration had an equivalent policy. OTOH, treating the far-left Rabbi Jill Jacobs of the tiny but loud T’ruah as if she runs a mainstream “liberal” organization is a bit much, and the overall tenor of the piece is that there is some raging debate among American Jews whether it’s okay for the president to sign an executive order formalizing favorable policy to combat antisemitism that is supported by even liberal mainstream Jewish organizations and basically reasserts Obama administration policy that no one objected to in 2010.

The real story here is that there is a segment of the Jewish community inclined to freak out over anything the Trump administration does that has anything to do with Jews and that the Times, through its dishonest and misleading reporting, has been intentionally encouraging it. (Note: There is a segment of the Jewish community, generally on the urban and Reform side of things, that treats the Times and its reporting as Torah, i.e., “gospel.”)

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

Here at IJ, it’s been a big couple of weeks for small victories. This week, a Pennsylvania court denied the state’s motion to dismiss our challenge to a law that can prevent people with past criminal records from becoming cosmetologists. And last week, a Virginia court ruled that our challenge to a Charlottesville business license tax on freelance writers that does not apply to the traditional press can go to trial. And a Nevada court refused to dismiss IJ’s challenge to a law removing millions of dollars of tax credits for educational scholarships that can be used at private schools.

• All new tobacco products must receive premarket authorization from the FDA. And if that product is to be advertised as a safer alternative to traditional cigarettes, the authorization process is more extensive (to verify the product is indeed safer). E-cigarette manufacturers: We aren’t selling tobacco products; we shouldn’t be subject to premarket review at all. And even if we were, it violates the First Amendment to make us go through the more extensive process. D.C. Circuit: E-cigarettes are tobacco products. And there’s no First Amendment problem with keeping the public safe from false advertising.
• Man participates in Washington, D.C. house-flip scheme that bilks banks out of more than $5 mil. He’s sentenced to over 24 years. D.C. Circuit (2010): His money laundering conviction can’t stand, as the activity was part and parcel of the underlying bank fraud conviction instead of a distinct offense. But no need to resentence because his sentences run concurrently. D.C. Circuit (2019): You know what? We got that wrong. Turns out the money laundering conviction increased his sentence by up to nine years. Resentence him.
• Man purchases 500 lethal doses of cyanide under false pretenses and offers them for sale on the internet to suicidal people. In all but one case, he sends Epsom salts instead. Judge Selya of the First Circuit: Convictions affirmed for the most part, and here’s a vocab quiz: golconda, yola, repastinating, repast, exigible, tarry, immurement.
• To maintain his gov’t contracts, owner of Springfield, Mass. towing company pays “street tax” to the Genovese crime family. He loses the contracts and stops paying. Ten years later and under new management, the family seeks to collect arrears and a monthly fee going forward. The owner negotiates, paying some and getting threatened for not paying more. Oh snap! He’s been wearing a hidden camera. (Three mobsters take plea deals and a fourth stands trial.) Mobster 4: I went to just one meeting with the owner where I spoke “only meaningless gibberish.” First Circuit: Conviction affirmed.
• Allegations: Following a domestic altercation (that involves both parties hitting the other’s car with a baseball bat), New York man drives away, while his girlfriend calls 911. Police claim that the girlfriend told the 911 operator that the man may have drugs on him, a claim the girlfriend strenuously denies. Man is pulled over, a drug dog alerts on his car, and the officer finds what he suspects are “crumbs” of crack cocaine, which field test positive for cocaine. Man is arrested, taken to the station, where a drug dog does not alert to him. He is, nevertheless, subjected to a visual cavity search of his anus. A Fourth Amendment violation? Second Circuit: There was no reason to believe this guy was hiding anything in his keister, and New York’s highest court has ruled that you need reasonable suspicion for such a search. No qualified immunity, remanded to resolve factual disputes. Dissent: So now police are expected to follow well-established state constitutional law as well as federal constitutional law? Outrageous!
• Second Circuit: Hey, remember that opinion we issued recently, where we said that the Fair Housing Act allows claims against landlords for tenant-on-tenant harassment? Well, we thought about it and we’re reaching the same conclusion, but our new opinion is narrower. Dissent: It’s not narrower, and it’s still wrong.
• After pharmacist stops filling two customers’ opioid prescriptions, he gets threatening text messages. Medford, N.J. police invite the pharmacist to the station to discuss. He’s there for seven hours (interviewed for four), offered food and water, uses the restroom unaccompanied multiple times, has access to his cell phone, and is never restrained. The conversation yields info that is used to build the case against the extortioners (who plead guilty) and to charge the pharmacist with distributing controlled substances. (Among other things, he filled prescriptions for a customer who came in six days a week, multiple times daily, with prescriptions bearing numerous different names.) But he’s never given a Miranda warning. Third Circuit: 15-year sentence affirmed. It was his choice to go to the police, he could’ve left when he wanted, and his statements were voluntary.
• In the wake of Russian meddling with the 2016 election, Maryland officials pass a law requiring websites large (The Washington Post) and not so large (the Cecil Whig) to disclose information about political ads they run. Newspapers: The law’s compliance costs threaten political speech. Fourth Circuit: Just so. Serious burdens that barely address the problem of foreign interference? That’s a free speech no-no. (Click here for some editorializing on the matter.)
• Friends, last week’s edition contained an egregiously misleading summary. We erroneously and unfoundedly asserted that the Fifth Circuit held that a single vehicle on an otherwise empty road can constitute “traffic,” and thus a driver pulled over for driving too slowly who was impeding only himself couldn’t challenge the stop. In fact, as the magistrate judge’s report makes clear, there was a second vehicle that was impeded by the defendant’s slow driving, and the Fifth Circuit determined it was not a plain error to regard a single instance of impeding a vehicle as “impeding traffic.” The staff regrets the error and has been moping all week.
• “The plaintiff, a lawyer who styles himself both a monarch and a deity, brought claims on behalf of an Indian tribe alleging that [the state of Louisiana and the United States of America] have, among other misdeeds, monopolized ‘intergalactic foreign trade.'” And his claims cannot proceed, says the Fifth Circuit.
• Four Michigan State University students who were victims of campus sexual assault file suit under Title IX, alleging that the universities response to their allegations left them vulnerable to future sexual harassment. A valid claim? Sixth Circuit (deepening a circuit split): Mere vulnerability isn’t enough; a plaintiff must show that the university’s inadequate response led to further harassment, and none of the plaintiffs have alleged that.
• Allegation: Sevier County, Ark. jail officers accidentally pepper spray inmate, then deny him a change of clothes, a shower, and medical attention. District court: No qualified immunity. Eighth Circuit: Yes qualified immunity. The guards gave the inmate access to a sink, a towel, and soap, and their failure to give any other care was not (or at least not “clearly”) deliberately indifferent to his medical needs.
• Activist wants to use a megaphone outside Six Flags to complain about how animals are treated there. Vallejo, Calif. officials: Megaphones are noisy, so you need a permit first. The Ninth Circuit (over a dissent): Not so. Silencing a speaker because he might be loud outside an already-noisy theme park? That’s a free speech no-no.
• U.S. Congresswoman’s staffer solicits $5k bribe from Compton, Calif. medical marijuana dispensary in exchange for preventing the business from being shut down by the city. Shortly after payment is made, the dispensary is shut down. Ninth Circuit: The staffer’s conviction is affirmed. “It is immaterial whether the bribe recipient ever intended to follow through with his end of the bargain, so long as he agreed to perform the official act.” (A separate unpublished order is here.)
• In 2015, an explosion at a Torrance, Calif. oil refinery injures four workers, sends a 40-ton piece of debris flying. Great Scott! The debris lands just five feet from a tank containing modified hydrofluoric acid, a highly corrosive liquid. The feds investigate, and ExxonMobil complies for the most part. But the company challenges subpoenas seeking information on what might have transpired had the debris pierced the tank. Ninth Circuit: And that information is indeed relevant to the investigation.
• Los Angeles officials enact ordinance requiring all prospective city contractors to disclose contracts with or sponsorship of the National Rifle Association. A violation of the NRA’s and a would-be contractor’s speech and association rights? District court: Indeed so. The text, legislative history, and comments the ordinance’s sponsor made on Twitter “evince a strong intent to suppress the speech of the NRA,” and its clear purpose “is to undermine the NRA’s explicitly political speech.” That’s a First Amendment no-no.
• Apparently worried that people commonly confuse veggie burgers and vegan ham roasts with products containing animal products, Arkansas officials enact law prohibiting companies from using words historically used for specific meat products. So even if the packaging clearly indicates the product does not come from animals, they may not use words like “meat,” “chorizo,” or “roast.” Tofurky: No one is confused—people buy these products because they don’t come from animals. District court: No enforcing the law while litigation proceeds. (Ed.: IJ successfully sued Mississippi this year over a similar law.)

Earlier this year, Arizona officials threatened to shut down Greg Mills’ engineering consulting firm where he builds electronic circuits for small businesses and startups. Greg has 30 years of experience in the industry, and throughout his career he has designed circuits for everything from flashlights to satellites. But Arizona says he can’t call himself an engineer and he can’t build circuits without first obtaining an engineering license. Which is ridiculous. The vast majority of engineers around the country are unlicensed. Those who are licensed typically work on bridges, dams, and building construction—things Greg does not do. The requirement does not protect public health and safety, but it does prevent Greg from earning an honest living while also making it harder for small, innovative businesses to hire engineers like Greg as needed. This week, Greg and IJ sued in Arizona state court, arguing that, among other things, the licensing requirement violates Arizona’s constitution because a single agency makes the rules, enforces them, and adjudicates violations. Click here to learn more.

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Into the Dark: A Nasty Piece of Work. Available now on Hulu.

From brain-boring Paul McCartney records to pyromaniac toys under the tree, Christmas has become a mistletoe-curdling trek through Hell. And television is one of the most malicious enablers. Hallmark has been spewing out  treacly Christmas rom-com swill since, I kid you not, October. (Though give TV a bit of credit for the glorious lost ending to It’s a Wonderful Life).

Luckily, we can always count on Hulu’s ferociously deviant Into the Dark anthology series to trash beloved American holidays. Thanksgiving, Mother’s Day, even International Women’s Day (think: empowered witches) have all been commemorated with grisly rituals and spectacular body counts on Into the Dark.

A Nasty Piece of Work, the show’s Christmas episode, is no exception. Imagine Ebenezer Scrooge wasn’t merely cheap and mean but aggressively sociopathic, and Bob Cratchit was asking for an extra lump of coal, and Scrooge said sure but only if Tiny Tim could be used as a skeet-shooting target and Mrs. Cratchit would perform an act of oral gratification that I certainly have never seen in any of the classic interpretations of A Christmas Carol.

Kyle Howard (Royal Pains) plays Ted, the Cratchit in this scenario, who for some years has been shouting “How high?” whenever his corporate boss Steven Essex (Julian Sands, 24) barks “Jump!” Or, in some cases, even before. “It’s not enough to accommodate his whimsical desires,” Ted complains to his wife Tatum (Angela Sarafyan, Westworld). “You have to anticipate his whimsical desires. … Everything is a test.”

Essex’s latest swindle of his employees was to cancel their Christmas bonuses to keep the company’s profit margins high. But to Ted, he dangles a bone: A new senior executive position is in the works. Maybe he’s the man for it. Can Ted and Tatum make it to a dinner party at Essex’s home that night to discuss it? But when they arrive, there’s no dinner party, just a drunken Who’s Afraid of Virginia Wolf?-style encounter with Essex, his cougarish wife Kiwi (Molly Hagan, Jane the Virgin), and one other couple: Ted’s sleek office rival Gavin (Dustin Milligan, Schitt’s Creek) and his fluffheadedly avaricious spouse Missy (“a trophy wife with a spectacular ass,” as Gavin describes her), played by Natalie Hall of Charmed.

The evening begins with a raft of traditional Christmas castration jokes and quickly moves on to thinking outside the box in the cover-up of murders. As the night unfolds, the Essexes don’t even try to disguise their purpose: to find out how far the other two couples will go to snatch that executive job and the money that goes with it. Sexual dalliance? Dismemberment? Assassination? Eugenocide? Part of the game may really concern which couple has the most finely-honed amoral ruthlessness for the corporate world. But it’s also clear that Steven and Kiwi have a set of sexual kinks that would have made Krafft-Ebing shudder.

There are times when A Nasty Piece of Work strains credulity—or would, if you managed to turn away from the devilishly delicious stew of rapacity, manipulativeness and malignity being cooked up by the talented cast. The show moves too quickly and too barbarously to spend much time thinking about it. And if you did, it would mostly be about turning Paul McCartney over to the ministrations of Steven and Kiwi every time he brays the word “wonderful.” Yes, Virginia, there is a Santa Claus, and what a wonderfully maleficent present he’s left under our tree.

PS: If you still need a break from Christmas cuteness even after watching A Nasty Piece of Work, I suggest hitting the discount DVD bins in search of the magnificently weird 1959 Mexican film Santa Claus, in which—among other things—Santa kills Satan by shooting him in the butt with a dart gun. Theology and the Second Amendment have never blended so well.

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About 140,000 Kentucky residents who have served time for felonies but completed their sentences have had their voting rights restored en masse by the state’s new governor.

Democratic Gov. Andy Beshear, who defeated incumbent Republican Matt Bevin in November, signed an executive order Thursday restoring the voting rights of felons who had committed nonviolent felonies within the state and had permanently lost the right to vote under Kentucky’s extremely strict laws.

Beshear’s executive order has a complicated history. Preceding Bevin as governor was Beshear’s father, Steve Beshear, also a Democrat. Before leaving office in 2015, the elder Beshear signed a similar executive order to restore voting, jury service, and occupational licensing rights to felons who had completed their sentences. Under Kentucky law, these people could individually petition the governor to get these rights back. Steve Beshear made the process automatic for those who qualified.

But when Bevin came into office, he overturned Steve Beshear’s executive order. Bevin said he didn’t object to an automatic restoration of felons’ rights, but he argued that it was an overstep of a governor’s power to issue a blanket order without changing the law.

But the laws didn’t change, and now Andy Beshear is reversing Bevin’s reversal. He did urge the legislature to change the law as well, but he’s going to use this process in the meantime. As a result, Iowa is now the only state left that strips all felons of the right to vote.

I don’t think enough attention is being paid to the fact that this doesn’t actually change the law. The next governor can do what Bevin did and shut the practice down, putting Kentucky felons in the same boat as Iowa felons. In fact, that’s exactly what happened in Iowa: A Democratic governor signed an order restoring rights to some felons, only to see a successor revoke it.

Rights granted via executive order can be taken away just as quickly. Maybe take the opportunity to actually change the law.

Bevin, meanwhile, engaged in some last-minute mercy that has stirred outrage rather than celebration. In his final days in office, Bevin issued 428 pardons, but some of his choices seem utterly baffling and have left many angry. He pardoned a man sentenced to 23 years in prison for raping a 9-year-old child. The man had served only 18 months. In his pardon letter, Bevin said he did not believe the victim’s testimony. Bevin also pardoned a man serving time for reckless homicide, robbery, impersonating a police officer, and tampering with evidence. The man’s family had held a fundraiser to help Bevin raise money to retire the debt from his original gubernatorial campaign. He had served two years of a 19-year sentence. His co-defendants did not receive pardons and will remain behind bars.

On the brighter side, Bevin commuted the death sentence of Gregory Wilson, who was on death row as the result of a mockery of a trial: Wilson had pretty much no defense attorney, a co-defendant who testified against him was having sex with a judge, and a federal appeals judge subsequently described the circus as “one of the worst examples I have ever seen of the unfairness and abysmal lawyering that pervade capital trials.”

Bevin also pardoned a pair of Louisville community activists, one of whom who works with the American Civil Liberties Union, who had served time for drug trafficking crimes. Both were already free, but one of them noted that her previous convictions meant she couldn’t go on her children’s field trips or get student loans and had a harder time getting jobs and life insurance.

So it was a complicated batch of pardons. Some of them may be indefensible, but others were clearly intended to help people who were no danger to society.

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The White House announced today that it has struck a trade deal with China. If you think that means the United States has won the trade war, Ron Vara has $50 billion in soybeans to sell you.

Vara, of course, is not a real person. He’s the fictional stock broker, military vet, and Harvard alum who is presented as an expert on China in a series of books written by Peter Navarro, one of President Donald Trump’s top trade advisers. The fact that one of the president’s advisers invented a fake expert would be a big deal in a normal times, but these days we are so far past normal that the White House circulated a memo written by “Ron Vara” to members of Congress this week, urging them to support more tariffs on Chinese imports.

So when that same White House says it has struck a trade deal with China, a little skepticism is probably in order.

That’s not to suggest that the announcement is bad news. The Office of the U.S. Trade Representative said today that a new round of 15 percent tariffs scheduled to take effect on Sunday will be canceled. The U.S. will also reduce some existing tariffs. Specifically, the 15 percent tariffs imposed on some Chinese imports in September will be cut to 7.5 percent. The 25 percent tariffs on about $250 billion of Chinese imports (about half of all goods imported from China) will remain in place.

In a statement, U.S. Trade Representative Robert Lighthizer said the “Phase One” deal “achieves meaningful, fully-enforceable structural changes and begins re-balancing the U.S.-China trade relationship.” The deal includes what Lighthizer calls “a strong dispute resolution system” for intellectual property issues, and it is supposed to set the stage for a more detailed trade deal to be worked out next year.

All of that sounds pretty good. As I wrote on Monday, there is little reason for Trump to go through with the planned tariff increase—a new 15 percent import tax on consumer electronics, toys, and various other items. That would make it more difficult to strike a deal, and it would overwhelmingly harm American businesses and consumers rather than China. Backing off from those threats and agreeing to scale back some other tariffs is exactly the kind of concession the U.S. should be willing to make in a trade negotiation.

And yet this deal offers minimal relief for Americans, who after all are paying the cost of the tariffs. The 25 percent tariffs, imposed mostly on industrial goods and raw materials, will continue to hammer American manufacturers and small businesses.

One major question mark is China’s supposed promise to purchase $50 billion in American agricultural goods—a promise that Fox News’ Edward Lawrence reports “will not be in writing.” The Office of the U.S. Trade Representative is refusing to say exactly how much China has agreed to buy.

Because why spend months negotiating a trade deal and then not put crucial details in writing, right?

But even if China has agreed to do exactly that—and here we will pause for a moment to note that Chinese officials have been careful to avoid committing to those targets—the numbers can’t possibly be accurate.

As Karen Braun, an agriculture and trade columnist for Reuters, details in a series of tweets, it’s difficult to imagine China purchasing $50 billion in American agricultural goods in a single year. The record value for all American farm exports to China in a single year is about $26 billion, set in 2012. If you include fish and forestry products, that record total rises to $29 billion.

In fact, China could buy all American exports of corn, soybeans, wheat, and pork—meaning that American farms would not sell any of those goods to residents of any other country in the world—and you’d only barely exceed $50 billion a year.

And because I am a data freak, I pulled the max values by year and added them together. That yields $56.4 billion.

By commodity:#Corn $13.7B (2011)#Soybeans $24.8B (2012)#Wheat $11.3B (2008)#Pork $6.65B (2014)

Notice none of them were in the same year.

— Karen Braun (@kannbwx) December 12, 2019

When can we expect to see the details of the deal that was supposedly inked on Thursday? Don’t hold your breath. Lawrence reports that China has “requested that the language of the [deal] never be made public” and that Phase Two of the deal won’t be negotiated until after the 2020 election.

That’s mighty convenient, isn’t it? Trump will get to spend the next several months claiming he successfully stood up to China and won the trade war, by getting the Chinese to agree to a deal that no one else is allowed to see.

Think of it as Ron Vara’s Canadian girlfriend.

All this might be clever politics, but it’s certainly not a full-fledged trade deal—which must be approved by Congress, and therefore must be both written down and made public—or proof that Trump’s trade war has been a success.

This Phase One agreement seems to be, at best, a face-saving way to back off from imposing costly new tariffs, and a way to punt the thorniest parts of the China trade dispute until after the next election. It comes with only modest tariff relief for U.S. consumers, doesn’t undo the worst losses of the trade war, and contains likely overblown promises about China’s ability to buy more American farm goods. But don’t be surprised if Trump acts like it’s a major victory.

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In a wake-up call for people who claim to be concerned about smoking-related disease and death, five prominent public health scholars warn that the “tremendous” harm-reducing potential of e-cigarettes could be nullified by panicky political responses to underage consumption and vaping-related lung injuries. “The evidence warns against prohibitionist measures,” they write in a Science article published yesterday. “Restricting access and appeal among less harmful vaping products out of an abundance of caution while leaving deadly combustible products on the market does not protect public health. It threatens to derail a trend that could hasten the demise of cigarettes, poised to take a billion lives this century.”

The authors—Amy Fairchild, dean of the Ohio State University’s College of Public Health; Cheryl Healton, dean of New York University’s College of Global Public Health; James Curran, dean of Emory University’s Rollins School of Public Health; David Abrams, a professor of social and behavioral sciences at New York University; and Ronald Bayer, a professor of sociomedical sciences at Columbia—observe that discussions of vaping “often neglect distinctions between nicotine and THC; between adults and youth; and between products obtained through the retail and black markets.” While black-market cannabis products containing the additive vitamin E acetate figure prominently in the recent lung disease outbreak, they note, “nicotine or flavored vaping liquids have not yet been implicated.” And while adolescent vaping, which has surged in recent years, does involve legal nicotine products, the authors warn that misguided efforts to curtail it could deter smokers from switching to a much less hazardous source of nicotine.

Consider the prohibition of flavored e-liquids, which the Food and Drug Administration (FDA) is considering and which several jurisdictions, including Michigan, Massachusetts, and New York City, already have imposed. “Vaping flavors with or without nicotine may appeal to youth, but flavors also appeal to adult smokers and help them switch,” Fairchild et al. write. “Evidence suggests that the vast majority of smokers who successfully switch completely from smoking combustible products to vaping do so—after weeks, months, or years of dual use—by transitioning from vaping tobacco or menthol flavored liquids to other flavors and often to lower nicotine concentrations or even to no nicotine in order to reduce the triggers that remind them of their prior smoking product.”

San Francisco has gone further than flavor restrictions by banning e-cigarettes outright, a policy endorsed by the American Medical Association. That approach, the article argues, gives insufficient weight to the reductions in smoking-related mortality that could be achieved if e-cigarettes remain legal, accessible, and appealing as an alternative to the conventional, combustible kind.

“There is solid scientific evidence that vaping nicotine is much safer than smoking,” the authors note, while “evidence from multiple strong observational studies and randomized trials suggests that vaping nicotine is more appealing and more effective than [nicotine replacement therapy, such as patches and gum,] at displacing smoking.” Although the FDA does not like to talk about it, that displacement is not limited to adults. Fairchild and her co-authors point out that “population youth smoking rates dropped much faster in the years vaping surged the most (2013–2019) than in prior years, reaching record lows during that same period, which suggests that nicotine vape use may be replacing smoking more than promoting it.”

E-cigarette prohibitionists may think they are acting “out of an abundance of caution,” but the policies they advocate look downright reckless when you consider the ongoing death toll from cigarette smoking. “The most conservative estimates suggest that were vaping nicotine to replace most smoking over the next 10 years, 1.6 million premature deaths would be avoided and 20.8 million quality adjusted years of life would be saved in the United States alone,” the authors write. “The greatest gains would be among younger cohorts. Across the globe, more than 8 million smokers will die prematurely from smoking cigarettes, not from nicotine itself, in 2019 alone. The potential benefit of appropriately regulated, innovative, noncombusted nicotine modes of delivery could have a tremendous impact globally.”

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If Hunter Biden, the son of leading Democratic presidential candidate Joe Biden, used his father’s connections to get rich without working that hard, he has also almost certainly benefited from his dad’s status to escape exactly the sort of punishments the former vice president has long advocated for illegal drug users. Critics will use new revelations about Hunter’s drug past to mock the candidate as a hypocrite, but they also present a teachable moment in the war on drugs: All nonviolent users should be accorded the leniency normally reserved for the children of senators and vice presidents.

The Washington Examiner reports that as an 18-year-old, Biden “was arrested on Jersey Shore drug charges in 1988 and had his record expunged.” In 2013, Biden received a special waiver about his drug past to join the U.S. Navy Reserve. (He was ultimately mustered out after testing positive for cocaine.) And in 2016, he returned a rental car in which police found his credit cards, ID, and a crack pipe; authorities declined to bring charges. In divorce papers, his ex-wife testified that he spent “extravagantly” on illegal drugs. He has been in and out of rehab and has publicly admitted that he has substance-abuse issues.

The Examiner notes, correctly, that Joe Biden is one of the chief architects of the war on drugs. The elder Biden once said that the feds should “hold every drug user accountable” because “if there were no drug users, there would be no appetite for drugs, there would be no market for them.”

Between 1984 and 1990, Biden introduced dozens of pieces of legislation related to drug enforcement.

In 1984, he helped usher in the Comprehensive Control Act, which allowed law enforcement officials to seize property suspected of being used to carry out drug-related crimes. The Anti-Drug Abuse Act of 1986 imposed a 100-to-1 sentencing disparity for possession of crack cocaine as opposed to powder cocaine.

In 1987, he introduced the National Narcotics Leadership Act to establish “a Cabinet-level Office of the Director of National Drug Control Policy to coordinate Federal operations and policy on drug control and abuse.” In 1989, Biden sponsored legislation to ban the sale of firearms to individuals with “serious misdemeanor drug or narcotic offenses.”

In 1990, Biden introduced a bill to make prior drug convictions “grounds for denying employment or for dismissal of an employee engaged in specified child care services” and for federal jobs. The bill also restricted bail for convicted drug offenders awaiting sentencing if their crime carried a maximum of a 10-year prison sentence. It required individuals to pass a mandatory drug test before being sentenced to parole, probation, or supervised release, and it established federal “military-style boot camp-style prisons” for prisoners under 25 years old who were found guilty of possession of controlled substances.

During the early 1990s, Biden spoke out publicly in support of the drug crackdown led by President George H.W. Bush.

Biden remains such a drug warrior that he opposes an end to federal prohibition of marijuana until he is convinced that it’s not “a gateway drug.” As Jacob Sullum writes, “that means Biden…will never support marijuana legalization.”

The Examiner doesn’t demonstrate that Joe Biden directly intervened to keep his son out of serious legal problems, but it doesn’t have to. Everyone knows that when it comes to drug-related offenses, there is a two-tier system of justice, one for the powerful and wealthy and one for everyone else. Throwing Hunter Biden, who publicly struggles with substance-abuse problems, into prison wouldn’t have accomplished anything other than wasting more tax dollars on the carceral state. Yet not everyone enjoys such freedom in a country where “1 in 5 incarcerated people is locked up for a drug offense” and more than a million arrests for drug possession are made every year.

Over the course of Joe Biden’s political career—he was first elected to the U.S. Senate in 1972—the country has undergone a sea change in its attitudes toward illegal drugs, especially marijuana. In the early 1970s, says Gallup, less than 15 percent of Americans favored legalizing weed. That figure is now 66 percent and still climbing. State and federal criminal-justice reforms show that we are rethinking the war on drugs and how best to help people with abuse problems.

The scandal isn’t that Hunter Biden escaped the prison time his father sought for other drug users. It’s that it has taken us so long to start reversing the damage that Joe Biden has inflicted on America.

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You can’t watch Full House reruns without getting nostalgic (for the good old days when a San Francisco townhouse wasn’t $6 million)

Written and performed by Remy.
Produced and edited by Austin Bragg.
Music tracks and mastering by Ben Karlstrom.
Background vocals by Kelly Brock.

LYRICS:

How could this family afford this facility?
Have you seen the cost of real estate? It’s insanity!
A kitchen? Are you kidding me?
Who let them paint that door?
Did someone bribe a commissioner?

The loudest peeps that you’ve ever seen
And compliance costs balloon
But if you stop supply as demand rises
It’s no wonder very soon

Everywhere you look, there’s a tarp
A sheet to hold on to
Everywhere you look, there’s a space
Look, some condos could go there

Everywhere you look

Changing our town’s character is what I bemoan
There’s a guy taking a crap outside a Cold Stone
And red tape
Everywhere you look

Image Credits: Barbara Munker (Barbara Munker/dpa/picture-alliance/Newscom)
Flicker: dailyinvention
Shani Heckman

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