Tag: hit&run

President Donald Trump is threatening to veto a massive defense spending increase for not being quite spendy enough.

On Tuesday, the White House issued a policy statement regarding House Democrats’ 2020 National Defense Authorization Act (NDAA), which sets defense spending levels for the coming fiscal year. Democrats in the House are proposing a $733 billion defense budget, an increase of $17 billion over last year’s NDAA.

That spending boost is nevertheless $17 billion shy of what the Trump administration is requesting. Anything less than $750 billion, the administration argues, will leave America’s military unprepared for the security challenges it faces.

“The level of funding that would be authorized by the bill,” reads Tuesday’s policy statement “would not fully support critical national security priorities.” If the bill “were presented to the President in its current form, his advisors would recommend that he veto it,” it adds.

The Senate passed a $750 billion NDAA in late June with wide bipartisan support. Only eight senators voted against the measure.

The House’s slightly leaner NDAA would give the White House less than it wants for things like new nuclear weapons and missile defense systems. But without that money, the administration warns, the U.S. is signaling it’s “incapable of adjusting its nuclear posture despite a worsening nuclear environment.”

The White House also objects to a number of policy changes House Democrats have included in their NDAA. This includes a prohibition on the Trump administration redirecting any defense funding to build a border wall. The Democrats’ bill would also require the administration to file lengthy reports to Congress anytime it deployed troops to the U.S.-Mexico border.

Despite Trump’s frequent promises to wind down U.S. involvement in Syria, his administration is also objecting to a provision in the House NDAA that would layer more reporting requirements on sending military aid to Syrian rebel groups.

House Republicans, for their part, have also come out swinging against spending a mere $733 billion on defense in the coming fiscal year, with Rep. Mac Thornberry (R–Texas) saying that House Democrats’ “arbitrarily lower budget” puts vital programs at risk.

This back and forth between the White House and House Democrats obscures just how marginal the debate over this latest defense spending bill really is. Regardless of whether we settle on a $733 billion or a $750 billion NDAA, we will still be spending far too much on a bloated and overextended military that is tasked with doing much more than just protecting the U.S. homeland.

“It’s absurd that the U.S. thinks the only way we can be secure is if we spend $750 billion or $733 billion,” the Cato Institute’s Christopher Preble, a defense policy scholar, told Reason back in June when was first surfacing. “The problem is we have defined our grand strategy very broad so that the only way we can be secure is if the whole planet is secure.”

The narrow range of debate on this year’s NDAA shows how little interest most members of Congress have in a more comprehensive review of our defense priorities.

At times, Trump has expressed skepticism about some of our overseas interventions. However, his administration’s latest veto threat demonstrates that he too is committed to funding the U.S. military’s current role as global policeman.

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As something of an outsider in her own political party, Rep. Tulsi Gabbard (D–Hawaii) seems to understand what drove Rep. Justin Amash (I–Mich.) to leave the Republican Party—though she does not have plans to break with the Democrats.

“He’s had a lot of challenges within his own party. And, frankly, I wasn’t surprised by his announcement,” Gabbard told the NPR Politics Podcast this week, referring to Amash’s announcement on July 4th that he was becoming a political independent. In announcing that move, Amash decried the “partisan death spiral” of American politics, writing in The Washington Post that “the two-party system has evolved into an existential threat to American principles and institutions.”

The squelching of different opinions and ideas within political parties is harmful, Gabbard told NPR.

“The outsized power that the political parties hold can often be used in the wrong way to squelch our democracy and dissenting voices even within our own parties,” she says.

It’s not the first time Gabbard has spoken out against the problems created by the United States’ hyper-partisan, binary political system. And, like Amash, she has earned a reputation as a rare free-thinker within Congress. She’s publicly split with the Democratic National Committee (DNC)—in 2016, she resigned her post as vice chairwoman of the DNC over what she saw as efforts by the committee to favor Hillary Clinton’s candidacy over Sen. Bernie Sanders’ (I–Vt.). She later endorsed Sanders.

That’s not quite the same as leaving the party altogether, of course, but in a different world—one where Clinton is president instead of Donald Trump, perhaps—it’s not difficult to imagine Gabbard playing a role equivalent to Amash’s: as a principled voice shouting over the partisan tumult.

But Gabbard says she has not seriously considered leaving the Democratic Party. Instead, she’s focused on making changes within the DNC. She wants to abolish the use of so-called “superdelegates”—party luminaries who get to vote at the nominating convention regardless of the results of the primaries. “Taking that power away from the very few and making sure that every single person’s voice is heard,” she says, will improve the party and American democracy as a whole.

Amash sounded a similar note during an interview with CNN’s Jake Tapper on Sunday, saying that political party power structures prevent members of Congress from actively participating in the lawmaking process.

“It’s pretty rigid. It’s top-down. It comes down from leadership to the bottom,” Amash told Tapper. “And over the years it’s gotten more rigid. It’s more difficult now to change the process than it was a few years ago.”

It’s also possible that Gabbard and Amash are misdiagnosing the problem—or at least part of it. There’s a good argument to be made for the view that today’s political parties aren’t too strong, but actually too weak. The GOP establishment was unable to stop Roy Moore from running for Senate in Alabama—not once, but twice!—or, for that matter, to derail Trump’s march to the presidency in 2016, despite a cornucopia of more qualified alternatives. In that view, the Republican Party has so easily become defined by populist Trumpism because the party is now too weak to maintain any other unifying identity. By extension, Amash’s split with the Republican Party is probably best explained by his break with Trump himself.

If so, one might worry that further breaking down party power by, for example, eliminating the DNC’s super-delegates may continue the trend of weakening the parties—and, by extension, hand more political opportunities to populist insurgents like Trump, but on the left.

Regardless, Gabbard’s willingness to buck the two-party system is likely one of two major reasons—the other being her equally principled stance opposing regime-change wars—why the congresswoman has attracted an eclectic mix of fans. Former Republican congressman and Libertarian presidential candidate Ron Paul has called Gabbard “the very best” Democrat in the 2020 field, and paleoconservative icon Pat Buchanan has called for Trump to hire Gabbard to replace John Bolton as national security adviser. On the NPR podcast, New Hampshire-based reporter Josh Rogers notes that the largest political sign in his town calls for Gabbard’s election. It stands on the property of a self-identified libertarian, he says.

Gabbard is attracting interest from those corners of American politics despite the fact that she’s pretty far to the left on economic issues. Her campaign is also advocating for “breaking up the big banks” and “healthcare for all.” Without her foreign policy views, Gabbard would likely have a hard time finding much agreement with Paul, Buchanan, or Amash.

“We can have differences, sometimes big differences, on many issues,” says Gabbard. “But people are coming together because they are recognizing the need to end these wasteful regime-change wars that our country’s been waging for far too long—that have proven to be so costly.”

That’s going to be the central message of her campaign—however long it lasts. Gabbard “won” the first primary debate last month and enjoyed a brief uptick in Google search results, after obliterating Rep. Tim Ryan (D–Ohio) and the case for war with Iran. Still, she’s polling at less than 2 percent.

But she’s clearly putting in the effort to play retail politics in New Hampshire—the early primary state where she might have the best shot at a breakthrough next year. Gabbard walked in four Fourth of July parades as she spent a long, hot weekend campaigning across the state, NPR notes.

Her central message about the need for a more humble foreign policy is impossible to disconnect from her criticisms of Democratic leadership. Gabbard’s candidacy is best understood as an attempt to break the bipartisan agreement on interventionist foreign policy and to restore the Democratic Party’s anti-war wing.

“This has been the problem with our foreign policy for so long: leaders in this country, from both political parties, looking around the world and picking and choosing which bad dictators to overthrow, sending our military into harm’s way,” she tells NPR. “It’s proven to have been a failure.”

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Are you old enough to remember who Louise Brown is? In 1978, she became the first person born through in vitro fertilization, or IVF. She was called a test-tube baby and the technology that allowed her to exist scared the bejeezus out of everyone. Now it’s a completely accepted way of making babies. 

Maybe you’re old enough to remember when the Walkman was introduced in 1979 as the first truly portable, immersive, individualized sound system. Its success led to a spate of panicked stories about how it would destroy communal music and even to laws banning its use while walking.

Or maybe you’re old enough to remember the panic over rock lyrics in the mid 1980s, when Sen. Al Gore (D–Tenn.) helped orchestrate hearings starring his then-wife Tipper, who railed against songs by Cyndi Lauper and other depraved musicians and warned that Dungeons & Dragons was a “deadly satanic game.”

If you’re interested in past panics about new technologies and forms of expressions, you’ll be interested in the podcast Pessimists Archive, which is dedicated to exploring “why we resist new things.” Host Jason Feifer delves into historical moments of panic over everything from novels to elevators to chain stores to that once unforgivably dirty dance, the waltz. He is also the editor in chief of Entrepreneur magazine, host of a business-oriented podcast called Problem Solvers, and a novelist.

In today’s Reason Podcast, he tells Nick Gillespie why new technologies and forms of culture reliably freak us out, how we can deal better with things, and what are some of the current threats that we should relax about.

Audio production by Ian Keyser.

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Nearly a decade after the passage of the Affordable Care Act, the health law is still tied up in the courts. You could be forgiven for having lost track of the latest in Obamacare lawsuit news, which now involves conservative states suing a federal government that agrees with them, and several former legal critics of the health law weighing in against the latest legal attack. Let’s see if we can sort it out a bit. 

To recap: In 2012, the Obama administration, following some congressional findings related to the text of the Affordable Care Act, defended the law’s individual mandate all the way to the Supreme Court by saying that it was not separable from the rest of the law. Chief Justice John Roberts, after privately flirting with signing on to a decision that invalidated the mandate, eventually penned a ruling upholding the mandate—but only as a tax penalty that raised revenue rather than as a compulsory purchase. 

In 2015, another suit, launched based in part on arguments made by Case Western Reserve Law Professor Jonathan Adler and Cato Institute Health Policy Scholar Michael Cannon, challenged the legality of the subsidies for most of the law’s exchanges; once again, Roberts wrote an opinion upholding the law. 

In 2017, however, the GOP Congress, following several months of failed efforts to repeal the health law and replace it with some other health care legislation, passed the Tax Cuts and Jobs Act (TCJA), which reduced the individual mandate tax penalty to zero. In theory, the command to purchase insurance remained on the books. In practice, it was utterly toothless.

This legislation, however, gave rise to a new lawsuit, in which a group of conservative states, led by Texas, argued that because the individual mandate was only constitutional as a revenue-raising tax, the mandate—which, as a result of the tax law, raised no tax revenue—was now unconstitutional. Furthermore, they argued, because the congressional findings related to the original Affordable Care Act indicated that the law could not stand without the mandate, the entire law should be struck down. 

Somewhat surprisingly, last December, a District Judge in Texas agreed, and so, in turn, did the Trump administration, which took the rather unusual step of declining to defend any part of the law. Complicating things further, conservative legal scholars who had backed previous cases against Obamacare—including Cannon and Adler—were aggressively critical of the Texas-led suit.

To top it all off, there have been lingering questions about whether anyone, on either side of the case, has standing to challenge or defend the law at all. The toothless mandate caused no obvious injury to the red states challenging the law: Who is harmed by a mandate that penalizes no one? Yet if the administration declined to defend it in court, agreeing with the challengers that it should be struck down, wouldn’t that mean that both sides of the suit were, in fact, on the same side? Lawyers from blue states who want to preserve Obamacare, plus the House of Representatives, argued the case for leaving the law in place. 

And that, more or less, brings us to where we are now. Like so many television shows in their later seasons, the Obamacare legal battle appears to have lost the plot. Yet it continues. 

In a nearly two hour hearing yesterday, a three-judge panel in the 5th U.S. Circuit of Appeals heard arguments about nearly all of this. Only two of the judges, both GOP appointees, asked questions, but they gave the distinct impression that they might be willing to invalidate the mandate. 

As for the rest of the law, which the lower court tossed along with the penalty, it was unclear. Much was made of the question of “severability”—as in, whether discrete components of the law can be severed from the whole—and what Congress intended and when. Judge Kurt Engelhardt seemed resistant to the idea that the courts should be asked to slice and dice congressional statutes. Why couldn’t Congress address these issues on its own, and leave the court to decide other things? A fair enough question but, in some sense, Congress did exactly that by eliminating the mandate penalty while leaving the rest of the law unchanged. Messy or not, that is the resolution that the 2017 Congress arrived at, and that is the law as it stands. 

The outcome of these sorts of cases can be difficult to gauge from oral arguments, but after listening to the oral arguments, it sounded to me as if the judges were at least open to the idea of tossing out all of Obamacare along with the mandate. 

Which is, I think, a mistake. I have spent nearly a decade arguing that Obamacare is bad policy, but like Adler and Cannon, I think the Texas suit goes much too far. The zeroed-out mandate should be struck down; in its current form, it is hard to see how it is constitutional, since Roberts’ ruling allowed it only as a tax that raised revenue. 

But as for the question of whether the rest of the law should go too, I continue to think that the Texas argument is an overreach and that the Trump administration has erred in declining to defend the law. 

It’s true that the Democratic Congress that passed the law (and later the Obama administration) believed that the mandate was closely linked to the policy scheme of the original statute. But the operative question isn’t what Congress believed in 2010 when the law was passed, or what the Obama administration argued in 2012; it’s what Congress intended in 2017 when amending the statute. And it is exceedingly clear, both from the relevant statutory text, which zeroes out the mandate penalty while leaving the rest of the law intact, and the relevant legislative and political history (the Obamacare repeal effort failed, multiple Republicans said they intended to eliminate the mandate penalty, not the whole law), that the 2017 Congress intended to eliminate the mandate penalty and nothing else. There is no reason to believe that the elimination of the mandate penalty was, as one of the judges suggested today, a sneaky backdoor plot to get rid of the rest of the law via the courts. It was an effort to remove the mandate penalty—and that’s it. 

It is also difficult, at this point, to make a convincing case that the mandate is an essential part of the law since it is no longer enforceable in any way. It is an empty provision, one that was effectively repealed by the tax bill, just as the 2017 Congress intended. It was reasonable to think of it as essential in, say, 2012, and had the mandate been stricken then, the rest of the law would have been called into question. 

But in the aftermath of the TCJA, it is, in the current legislative schema, obviously inessential. To strike down the entire law now would be to assume that the 2017 Congress did not know what it was doing when it declined to repeal the entire statute and instead got rid of the mandate penalty alone; it would be to ignore both clear congressional intent and the plain text and meaning of the law as it now stands. 

In the meantime, it is troubling that the Trump administration has declined to defend the law in court. While this sort of decision is not entirely unprecedented, it is certainly unusual, and it suggests that the administration has adopted a pick-and-choose sensibility to the federal laws that the executive branch is charged with upholding. Declining to defend a law is a close cousin to declining to enforce or implement a law, and it is worrying when an administration does so, regardless of the issue, and regardless of the partisan incentives involved. The job of the executive isn’t to uphold the laws the president likes; it’s to uphold the law, period. 

None of this makes Obamacare good policy or good law. But it is the law, and consequently, both the courts and the executive branch should treat it with the seriousness it deserves. 

Whatever happens with the current appeal, it’s likely that the case will end up at the Supreme Court, again, with Chief Justice Roberts overseeing its fate, again. And that could happen as early as next summer, on the eve of a major election.

You can expect Democrats to make hay of this and attempt to use it to their political advantage. Indeed, they already are, with Senate Minority Leader Chuck Schumer (D–N.Y.) hosting a press conference this week to draw attention to the case. That may well work, given how effective the Democrats’ health care argument was during the 2018 midterm elections. And if it does, Republicans will only have themselves to blame. The GOP has spent most of the last decade backing themselves into an increasingly small corner on health care policy, so that their position amounts to little more than pointing to Obamacare and saying, “not that.” They squandered an opportunity to both pass and make the case for a real alternative in 2017, and that failure is now likely to haunt them. When asked what they will do if the court overturns the law, it’s unlikely that they will have answers—or at least not good ones. 

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The polls show that New York Sen. Kirsten Gillibrand’s bid for the Democratic presidential nomination is going nowhere fast. She received absolutely no bump from her lively performance after the last debate. Her support is stubbornly stuck at around 1 percent.

She is an attractive and well-spoken candidate who had generated high expectations. Why is she flailing? Essentially because she is selling a brand of feminism with little resonance beyond Facebook CEO Sheryl Sandberg’s white professional female devotees, especially when the country is preoccupied with so many other pressing issues.

Gillibrand declared in her closing statement at the debate that this is “not the time” for Americans “to be afraid of firsts” because they “need a president who will take on challenges, even if she stands alone.” If this sounds like she is making her gender a resume item, that’s because she is.

She wasn’t always this way. In an earlier incarnation, she was a career lawyer who represented Phillip Morris, the tobacco giant, for what liberals consider crimes against humanity. Yet, interestingly, she failed to target Big Tobacco when she attacked insurance companies, drug manufacturers, and the National Rifle Association (NRA) for “corporate greed” during the debate. She was pro-gun and anti-immigration which is why she handily defeated her Republican rivals in an upstate New York congressional district where few thought a Democrat could ever win. She was also part of the Blue Dog Democrats House coalition that voted against President Obama’s financial bailout because it was fiscally irresponsible.

Her metamorphosis into a dyed-in-the-wool liberal began—surprise! surprise!—when she got appointed to Hillary Clinton’s Senate seat after Clinton left to become President Obama’s secretary of state. Since then, there is hardly a position that Gillibrand has not renounced. She is now anti-gun and pro-immigration and believes in public funding of campaigns and every other liberal position down the line.

But she still managed to catapult herself into the limelight as a woman of principle when, at the height of the #MeToo movement, she led the charge for the resignation of her Senate colleague, Al Franken of Minnesota, after several women accused him of sexual misconduct. She also broke ranks with other Democrats and declared that President Bill Clinton should have resigned over his affair with Monica Lewinsky.

It’s not clear whether she did all this with an eye toward a presidential run. But she clearly thought that she could use her actions to turn herself into a feminist hero who would ride the wave of female disgust against President Trump’s misogyny all the way to the White House, especially since none of her Democratic rivals have made women’s issues part of their central pitch to voters.

But that is turning out to be an epic blunder.

According to a Hill-HarrisX poll this week, Gillibrand is the first choice of only 1 percent of Democratic women. Lest one chalk this up to her lack of name recognition, consider that Pete Buttigieg, the mayor of a tiny city like South Bend, a veritable unknown, is the top choice of 6 percent of Democratic women. How does Gillibrand stack up against her female presidential rivals? Not well. About 11 percent list Elizabeth Warren as their first choice and 8 percent Kamala Harris (although, interestingly, Harris, unlike Warren, draws more support from men than women).

Why are other candidates making more headway with Democratic women than Gillibrand? Because, regardless of what one thinks of their narratives, they are at least painting on a large canvas: Buttigieg is a millennial “synthesist” drawing his platform from both the conservative (fiscal responsibility, opposition to freebies like free college) and liberal (minority rights, social justice) camps; Biden is a pragmatic centrist who stands squarely in the middle when both sides are veering off their respective extremist cliffs; Sanders is the radical democratic socialist who wants to turn America into Denmark (or Venezuela if you listen to his critics); Warren is a fierce opponent of crony capitalism who is striving to create a level-playing field for the little guy; and Harris is (disingenuously) trying to re-invent herself as a social justice crusader who wants criminal justice reform and equal rights for persecuted minorities.

What are Gillibrand’s big issues? Defending abortion rights, to be sure. This is a genuine vote mobilizer—except that many women mobilize in the other direction. She also proposes a “family bill of rights” that would offer national paid leave, universal pre-K, and affordable daycare. But many of these items are implicit in the broader agenda of the other candidates; Sanders-style socialism would certainly cover them. Gillibrand also wants to eliminate the wage gap and end workplace harassment and discrimination. But who does this affect most? White professional women like herself on a career path. There is not much in Gillibrand’s platform for women with different profiles—a single black mom whose partner is serving an inordinately long prison sentence for petty drug violations or a self-employed Latina who is forced to spend 5,000 hours in a classroom to learn hair-braiding before she can obtain a license to open a salon. And what about men? Who needs men!

Gillibrand got pilloried for her tweet last year when she haikued: “Our future is: Female… Intersectional—Powered by our belief in one another. And we’re just getting started.” Quite apart from its sophomoric earnestness, what is striking about the tweet is its cluelessness.

Intersectionality, properly understood, is the notion that when people who occupy positions of power and privilege identify a social justice agenda, they inevitably tip it toward their own concerns rather than those of the truly persecuted or oppressed. The real problems of the truly marginalized inevitably get co-opted by the marginal problems of the relatively privileged. By her bubble-brained use of the term, Gillibrand turned herself into the poster child for the very problem that intersectionality raises.

Trump’s populism has fundamentally shaken up the political landscape. He is smashing liberal institutions, trashing norms of executive accountability, openly promoting a blood-and-soil nationalism of the kind that the country has not witnessed in over 150 years, fueling fear and hysteria toward vulnerable minorities, transforming America’s posture toward the world and much more. Gillibrand’s Democratic rivals have correctly sensed that Trump can’t be countered—nor can the possibilities his iconoclasm is opening be captured—without a grand narrative and a grand agenda. This is not the time to picayunishly focus on a narrow interest group. But Gillibrand drank so much Kool-Aid at the Women’s March that she’s fighting to eliminate the barely existent gender wage gap with the energy and enthusiasm of suffragettes fighting for the right to vote.

This is just plain tinny. It is hard to see how her Ann Taylor feminism can capture the imagination of women outside her pearl-wearing sisters—let alone the general public—with this kind of messaging.

A version of this column originally appeared in The Week.

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The ties that bind President Donald Trump and Jeffrey Epstein, the Florida billionaire arrested this week for alleged sex crimes against teen girls and young women, have been getting a lot of understandable scrutiny. Trump and Epstein partied together in the 1990s, reports Business Insider, and he told a reporter in 2002:

He’s a lot of fun to be with. It is even said that he likes beautiful women as much as I do, and many of them are on the younger side. No doubt about it—Jeffrey enjoys his social life.

But White House advisor Kellyanne Conway said the friendship between Epstein and Trump ended long ago. They haven’t had contact “in years and years and years,” said Conway. “And [Trump], like everyone else, sees these charges, the description of these charges against Epstein, as completely unconscionable and obviously criminal. Disgusting, really.”

Trump himself stressed to reporters that while he knew Epstein at one time, he hasn’t been associated with him for many years.

The New York Post alleges that Trump even had Epstein banned from Mar-a-Lago over his predatory behavior, citing an April 2011 court filing in a Florida case between Epstein and lawyer Bradley Edwards. “Trump allegedly banned Epstein from his Maralago Club in West Palm Beach because Epstein sexually assaulted a girl at the club,” the New York Post quotes an unspecified document as saying. (I’ve been through the April 2011 filings in the Epstein-Edwards case and been unable to find this particular statement, however.)

Trump has also been taking heat for his labor secretary, Alexander Acosta, being the U.S. prosecutor that allowed Epstein’s incredibly lax plea deal in Florida in 2008. Acosta was quiet in the days immediately following Epstein’s July 6 arrest, but tweeted on Tuesday:

“The crimes committed by Epstein are horrific, and I am pleased that NY prosecutors are moving forward with a case based on new evidence.

With the evidence available more than a decade ago, federal prosecutors insisted that Epstein go to jail, register as a sex offender and put the world on notice that he was a sexual predator.

Now that new evidence and additional testimony is available, the NY prosecution offers an important opportunity to more fully bring him to justice.”

It’s unclear to what new evidence he refers, considering the current indictment against Epstein lists the same old complaints from 2002-2005 that informed the 2008 case.

But some people aren’t satisfied with criticizing Acosta’s actions back then (or his defense of it now) and seemingly want to make him into a supervillain. The Guardian is running a silly story about Acosta trying to “slash funding to anti-sex trafficking agency by 80%.“

The twisted impetus for the newspaper’s claim is that 2020 budget plans for Department of Labor would slash the budget of the International Labor Affairs Bureau from $68 million to $18.5 million. “The proposed reduction is so drastic that experts say it would effectively kill off many federal efforts to curb sex trafficking and put the lives of large numbers of children at risk,” the Guardian insists. Notably, it does not offer any specifics on what budget cuts would mean for any particular programs, instead letting us know that congressional Democrats say it will be bad.

In my five-plus years reporting extensively on U.S. efforts to fight sex trafficking, I’ve hardly ever encountered any mentions of the International Labor Affairs Bureau. Most of the human rights work it does concerns forced labor in sectors like agriculture and manufacturing. Whatever this agency may be doing to combat sex trafficking, it is far from a central front in the feds’ fight.

Meanwhile, there are dozens of other agencies and initiatives devoted to fighting sex trafficking, and federal budgets for these entities have continually increased. For instance, according to the State Department’s latest Trafficking in Persons Report, Department of Justice funding for federal-state anti-sex trafficking task forces soared from $2.8 million in fiscal year 2017 to $23.1 million the following year.

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ELECTION 2020 

Sen. Tulsi Gabbard (D–Hawaii) accused Sen. Kamala Harris (D–Calif.) of pulling a “political ploy” with her debate-stage attack on Joe Biden for his opposition to federally mandated busing—a position Harris herself later admitted to holding. (Her campaign tried to get around the discrepancy by pointing out that it’s a different year than when Biden opposed it.)

“Really what she’s saying is her position is the same one she was criticizing Joe Biden for,” Gabbard told CBS News. “So this is just a political ploy and I think a very underhanded one just to try to get herself attention, to move herself up in the polls. “I think we need to be above that. All of us.”

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FREE MINDS

Prince versus Andy Warhol winds up in a good ruling for Fair Use. From Mike Masnick at techdirt:

There’s a fair bit of background to this story, so stick with me, but the short version is that a photographer, Lynn Goldsmith, took a bunch of photos of Prince in 1981. In 1984, Vanity Fair magazine (owned by Conde Nast) licensed Goldsmith’s photographs for an article the magazine was doing about Prince. The magazine then commissioned Warhol to do a painting of Prince based on Goldsmith’s photographs. That resulted in this 1984 spread:

Apparently Warhol actually created a bunch of paintings based on Goldsmith’s photographs, most of which have been sold, and a few of which are now in the Warhol museum. You can see all the images in the original complaint in this case.

After Prince died, Vanity Fair reran its article, and then teamed up with some other Conde Nast publications, and put out a special magazine called “The Genius of Prince” using one of Warhol’s other portraits.”

The court’s ruling? “It is plain that the Prince Series works are protected by fair use.” More here.

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FREE MARKETS

Hawaii decriminalizes marijuana. Hawaii has joined 25 other U.S. states in either decriminalizing or legalizing cannabis, with a law that will take effect in January 2020. “The new law removes the possibility of jail time as a penalty for up to three grams of marijuana, but maintains a $130 fine,” reports Vox.

“Unfortunately, three grams would be the smallest amount of any state that has decriminalized (or legalized) simple possession of marijuana,” notes the Marijuana Policy Project. “Still, removing criminal penalties and possible jail time for possession of a small amount of cannabis is an improvement.”

QUICK HITS

Maybe we should've paid more attention to Trump's 2011 trip to the Cal/Mexico border where he posed for a photo opp w a crowd of agents in front of a border wall *while wearing a fake police badge* & grinning like a toddler who just stole your cake

Oh oops did I say Trump pic.twitter.com/JOH1Z01L95

— Alex Yelderman (@alexflevy) July 9, 2019

• “Self-managed abortion is going to play a bigger role, no matter what happens with Roe.”
• Tucker Carlson is drawing heat for his xenophobic criticism of U.S. Rep. Ilhan Omar (D–Minn.)
• Amash may get to stay on the House Oversight Committee after all:

House Oversight Committee Chair Elijah Cummings tells me he's looking into finding Rep. Justin Amash a seat on his committee

Amash left the Republican Party over the long weekend and stepped down from the panel yesterday

Cummings said Amash had been fair to Dems on the cmte

— Tim Mak (@timkmak) July 9, 2019

• Ken “Popehat” White weighs in on the Jeffrey Epstein case.
• Protecting and serving: “The Fifth Circuit Court of Appeals has decided it’s OK if a government agency searches a phone that should never have been seized in the first place…so long as it’s not the same government agency that illegally seized it.”
• The author of the infamous Trump-Russia dossier has been meeting with the Department of Justice.
• Michelle Carter is petitioning the Supreme Court to vacate her conviction on involuntary manslaughter charges for urging a suicidal boyfriend to kill himself.
• The U.S. Court of Appeals for the 2nd Circuit just upheld a lower court’s ruling that President Trump cannot block his critics on Twitter. Meanwhile, Rep. Alexandria Ocasio-Cortez is now facing a lawsuit for blocking people from viewing her personal Twitter account.

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From Judge John A. Woodcock, Jr.’s opinion Monday in Flanders v. Maine / Flanders v. Mass Resistance, 2019 WL 2929500 (D. Me.):

A plaintiff in several cases in this court, which include two petitions for writs of habeas corpus and an action for libel, slander, and assault, moves the Court to seal these cases from public access, or in the alternative, order that all references by which he could be identified be redacted from the opinions in each case. The Court denies the motion insofar as it requests that the entire court file be sealed and dismisses the motion without prejudice insofar as it requests that personal information be redacted.

Adam Flanders requests that the Court “remove from publication in their entirety or otherwise seal[ ] from public access” opinions in the following federal cases, or the cases in their entirety: Flanders v. Mass Resistance, No. 1:12-cv-00262-JAW; Flanders v. State of Maine, No. 2:12-cv-00277-JAW; Flanders v. State of Maine, No. 2:12-CV-00278-JAW. In the alternative, Mr. Flanders requests that “all personal identifiable information be redacted from these opinions, including but not limited to my name, address, telephone number, and state identifiers, and that the Court prevent search engines from indexing these opinions.”

[Here are the opinions in Flanders v. Mass Resistance and the two Flanders v. State cases; the Flanders v. Mass Resistance opinion provides a good deal more backstory on the dispute between the two parties. -EV]

As the basis for his motion, Mr. Flanders states that “there are several hate groups targeting me, publishing my personal information and encouraging others to stalk and harass me …. They use these government website publications to locate me and further target my family and I.” He says that he has received “hateful emails [and] death threats” and that these groups contacted his employer, resulting in termination of his employment. Mr. Flanders contends that “the safety and private of my family and I outweighs any public interest in these District Court cases.

A. Flanders v. Mass Resistance, No. 1-12-cv-0062-JAW

The first case Mr. Flanders seeks to have sealed, removed, or redacted, is a diversity suit he brought “over allegedly defamatory statements published by Brian Camenker following Mr. Flanders’ dissemination of a tell-all letter in 2007 exposing the questionable activities of a Rockland, Maine based homosexual youth group[ ]”, which the Court dismissed as “the allegations in Mr. Flanders’ Complaint are legally insufficient … and Mr. Flanders’ additional filings … lack merit.”

B. Flanders v. State of Maine, No. 2-12-cv-0277-JAW and Flanders v. State of Maine, No. 2:12-cv-00278-JAW

Mr. Flanders also requests that the Court seal, remove from publication, or redact his two petitions for habeas corpus challenging the validity of multiple state of Maine convictions …. The first petition challenges Mr. Flanders’ August 27, 2008 convictions in Knox County Superior Court for Sexual Abuse of a Minor, and for a probation violation in the same case. Flanders v. State of Maine, No. 2-212-cv-278. The second petition challenges a number of Mr. Flanders’ state of Maine convictions in Knox County Superior Court for Aggravated Assault Class B, Criminal Threatening Class C, Violation of a Protective Order Class D, and Violation of Conditions of Release Class E. The Court denied and dismissed both petitions.

Discussion …

“[T]here is a strong common law presumption favoring public access to judicial proceedings and records.” That presumption is “rooted in a desire to allow the citizenry to monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system.” … In civil cases, “the plaintiff instigates the action, and, except in the most exceptional cases, must be prepared to proceed on the public record.”

Once the presumption of public access attaches, it remains possible for a court to seal a document…. However, before sealing a judicial document, the First Circuit mandates that the court issue “particularized findings,” and that where some portions of a document may be sealed, “redaction remains a viable tool for separating this information from that which is necessary to the public’s appreciation of [the court’s order].” In this District, to “obtain an order allowing one or more documents or pleadings to be sealed, a party [must] electronically file … a motion to seal together with the separate document(s) or pleading(s) sought to be sealed.” D. ME. LOC. R. 7A. The motion must also “propose specific findings as to the need for sealing and the duration the document(s) should be sealed ….” “In making specific findings as to the need for sealing and the duration the document(s) shall be sealed, the Court may incorporate by reference the proposed findings in the motion to seal.”

1. Request to Seal Cases in their Entirety

First, Mr. Flanders’ request to seal his three civil cases in its entirety does not comport with Local Rule 7A. Mr. Flanders has not “proposed specific findings as to the need for sealing and the duration the document(s) should be sealed.” Second, Mr. Flanders’ motion does not provide a sufficient basis for sealing the records of each case in its entirety. Mr. Flanders contends that “the safety and privacy of my family and I outweighs any public interest in these District Court cases,” and notes that the opinions are “non-precedential” criminal appeals of state convictions over ten years old. Mr. Flanders does not address why redaction of personal identifiers in these cases would not sufficiently protect the safety and privacy of himself and his family.

Two of the cases Mr. Flanders moves to seal are actions brought by Mr. Flanders challenging the validity of his state of Maine criminal convictions. The convictions themselves are matters of the public record of the state of Maine.

Although the Court takes seriously any threats to Mr. Flanders or his family may have endured, Mr. Flanders has not demonstrated a sufficiently compelling reason to override the common law right of public access to two criminal appellate cases in their entirety. When Mr. Flanders himself instigated these three civil actions in public court, he had to be prepared to proceed on the public record and he has not shown an “exceptional case” which would rebut the presumption of public access….

2. Request to Redact Personal Identifiers

Mr. Flanders requests, in the alternative, that “the Court [ ] order that all personally identifiable information be redacted from these opinions, including but not limited to my name, address, telephone number and state identifiers, and that the Court prevent search engines from indexing these opinions.” …

Federal Rule of Civil Procedure 5.2 governs privacy protections for filings made with the court. The Rule allows the redaction of a “filing with the court that contains an individual’s social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number.” The redaction requirement does not apply to “the official record of a state-court proceeding,” or to “a pro se filing in an action brought under 28 U.S.C. §§ 2241, 2254, or 2255.” The Rule also provides that “[a] person waives the protection of Rule 5.2(A) as to the person’s own information by filing it without redaction and not under seal.”

First, Mr. Flanders failed to comply with the requirements of the local rules because he filed the motions without proposed redactions. Second, because he filed his motions without redaction, he waived the protection of Rule 5.2(A) as to his own information.

Third, at first glance, the Court’s opinions in these cases do not contain any personal identifiers as that term is legally defined. The Court’s opinions mention Mr. Flanders’ name and the docket numbers and state courts in which he was convicted, but those identifiers are not usually redactable except in unusual circumstances not present here….

In contrast, the exhibits filed along with Mr. Flanders’ Motion for Order of Removal of Personally Identifiable Information, which he did not file under seal, includes personal identifiers. The Court finds that by filing the instant motion not under seal, Mr. Flanders waived the protection afforded under Rule 5.2(a) as to personal identifiers included in his motion for order of removal of personally identifiable information….

If Mr. Flanders seeks to file a redacted version of any of his court filings in the above cases in accordance with Federal Rule of Civil Procedure 5.2(a), he may do so, but in doing so, he must comply with the District’s local rules.

In 2017 and 2018, Adam Flanders had also asked Google to deindex various posts sharply criticizing him on the Mass Resistance site and related sites (e.g., this LifeSiteNews item), as well as various documents from his earlier cases that were archived on the Mass Resistance site, see here, here, and here. He attached a Maine restraining order that he had obtained against Brian Camenker (the founder of Mass Resistance), which barred “harassing” of Flanders and “direct or indirect contact” with Flanders, and which was based on this complaint. As best I can tell, Google didn’t act on the deindexing requests.

When I asked Flanders about the first of his deindexing requests, back in 2017, he responded cordially and in some detail. He first argued that some of the materials he was trying to deindex included “personally identifying information,” such as an “image of [his] signature [that] exists within some of the documents,” “[his] driver’s license number, home addresses, phone number, and other personal information,” and “a police photo of [him] that includes an image of a hospital intake bracelet. Depending on the resolution of the image published, some of the information on that bracelet can be deciphered.” He added that “he realize[d] some of this information is a matter of public record,” and that some of it “is contained in official court documents.”

He went on to make the following argument; I pass this along just to set forth his views, and not because I agree with any of this as a factual or a normative matter:

My primary concern when I sought the Protection from Harassment Order is (and continues to be) my safety and the safety of my family. [The author of some of the material] engaged in a continuing course of conduct over the course of months and years that was not only intended to defame me and promote the political and financial interests of … Mass Resistance, which is recognized as a hate group by the Southern Poverty Law Center.

I strongly believe [these] publications were intended to stir vigilante elements in our society to take action, including violent action, against me…. [A] number of publications, … make[] false allegations about me molesting young children, suggesting collusion with law enforcement, and encourage[] the public to “fight back” against people like me. [They] provide[] my personal information and address alongside these allegations and what can only be interpreted as a call to arms.

This caused me a great deal of distress and I received a number of emails from people in response to [the] publications. Some of these were positive while others were threatening. There were also copycat publications by other organizations, including another hate group, Americans for Truth About Homosexuality. Public comments on some of these publications included violent threats against me, such as how I should be murdered….

The Order does not directly command the removal of the information, however it does command the removal indirectly. The order found that Mr. Camenker committed harassment with his publications (refer to the attached complaint). Specifically, the order commands Mr. Camenker to cease harassment against me. Harassment includes Stalking, which the Maine Revised Statutes Title 17-A §210-A(2)(A) extends to include “communicates to or about a person” (provided that communication causes emotional distress and so on).

Please don’t misunderstand. I support free speech, but, as I’m sure you are aware, the purpose of free speech, as framed in our Constitution, is primarily for the protection of private citizens against government oppression. I am not a representative of the government nor have I ever worked for the government. I am a private citizen. There are inherent limits to free speech and even the founders of our nation recognized abuses, some of which are recognized today as fighting words and incitement to criminal action. I doubt most Americans, yourself included, support completely unrestricted speech. Unrestricted free speech would make legal threats of violence, the dissemination of confidential medical information, and publication of child pornography, among other things. There are no doubt very good reasons for limits on free speech, and restraining orders are just one tool that private citizens have to protect themselves.

I support anyone’s right to publish their opinions about a topic, including opposition to homosexuality, but targeting a private citizen and repeatedly making false claims about that individual, alongside that individual’s home address and a call to vigilante action against that individual, is not protected speech. I would also argue it lacks value as free speech, but for the purposes of the Protection from Harassment Order, my argument was limited to my safety. Belfast District Court agreed that Mr. Camenker’s publications constitute harassment under Maine law….

The conditions for which the order was granted still exist today and so I could, in theory, pursue another order. Federal laws regarding Stalking, specifically 18 USC § 2261A(2), also arguably prohibit Mr. Camenker’s actions (see U.S. v. Osinger, 9th Circuit, 2014). As you may or may not know, I pursued a federal defamation lawsuit against Mr. Camenker. Although the lawsuit itself was unsuccessful, to my knowledge Mr. Camenker and his associates never created any further publications following that lawsuit. A number of other copycat publications have removed their publications about me following the Protection from Harassment Order, lawsuits, and DMCA complaints.

The ability to find information about Mr. Camenker’s harassing publications about me depend in part upon search engines such as Google. It is my hope that US law will eventually embrace the European “Right to Be Forgotten” model. In light of recent state laws regarding harassment, cyberbullying, and “revenge porn,” as well as efforts at the federal level, I am optimistic that we are headed in that general direction. I believe that victims of harassment such as myself, will soon have more tools to protect ourselves and our privacy.

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In May, Connecticut officials sent the Massachusetts Registry of Motor Vehicles notice of a drunk-driving violation by Volodymyr Zhukovskyy, who had a commercial driver’s license from that state. By law,  Zhukovskyy’s license should have been suspended. But Massachusetts officials did not act, and just six weeks later,  Zhukovskyy’s truck crossed a double yellow line in New Hampshire, striking a group of motorcyclists and killing seven. Now, an investigation has found that the written notice from Connecticut about Zhukovskyy, and tens of thousands of other notices of out-of-state driving infractions, sat unexamined in bins at the Massachusetts Registry of Motor Vehicles, some of them for over a year.

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The city of Dunedin, Florida, wants Jim Ficken’s home.

Ficken’s mom died, so he went to South Carolina to take care of her estate. He asked a friend to look after his house.

But then the friend died, and no one cut Ficken’s grass. When it grew to 10 inches, Dunedin officials started fining him $500 a day.

The fine is now about $30,000.

“I was shocked,” Ficken says in my latest video. City officials say they will foreclose on his home if he doesn’t pay the fine, and Ficken doesn’t have that much money.

“Do you have $30,000 lying around?!” he asked me.

“The city has gone nuclear!” complains his lawyer, Ari Bargil. “$500 per day for the violation of having tall grass…. They could have done what their own ordinances permit them to do: hire a lawn service to come out and mow the grass. Then send Jim a bill for 150 bucks. But they didn’t do that.”

Why not? Bargil and Ficken say it’s because Dunedin’s officials just want money.

Dunedin’s politicians wouldn’t talk to us. Instead, they spent $25,000 on a public relations firm that told reporters, “Dunedin has no desire to impose large fines… (only to) ensure that Dunedin is a high-quality community.”

The cost of “high quality” keeps going up.

Eleven years ago, Dunedin fined people $34,000. Today, they want about that much from Ficken alone. Last year Dunedin collected $1.3 million in fines from residents.

“It’s pretty apparent that code enforcement is a major cash cow for the city,” says Bargil.

“I got violated for a lawn mower in my yard!” says one resident who has been fined $32,000. “They violated me for a hole the size of a quarter in my stucco…. They find people they can pick on…and they keep picking on them.”

She started crying as she recounted: “I can’t tell you how many sleepless nights I’ve had because of the city of Dunedin. Just try to think of what to say to them, just to have them leave me alone.”

“The city is just a bunch of bullies, and they expect people not to stand up to ’em because to stand up to ’em requires expensive legal help,” says Ficken.

Ficken managed to get expensive legal help for free from the Institute for Justice, a law firm that defends individuals abused by governments.

All across the country, “private citizens are being essentially extorted by their governments and fined incredible amounts of money for really, really small violations,” says Bargil.

You can be fined for not trimming plants, the way Ficken was, but you can also be fined for trimming too much. A city in North Carolina fined a local church $100 per branch ($4,000) for excessive tree-pruning.

And in places such as Dunedin, if you can’t pay a fine, they’ll take your home.

“The city attorney of Dunedin last year sought permission to foreclose on 18 properties,” says Bargil.

That violates the Eighth Amendment, says the Institute for Justice. The Amendment not only protects us from “cruel and unusual punishment” but also from “excessive fines.”
The founding fathers, says Bargil, “recognized that the ability to fine is the ability to cripple. It’s one of the ways, other than incarceration, that government can really oppress.”

If governments can oppress, they usually will.

We should be grateful for the Eighth Amendment’s protection against excessive fines.

And what’s more excessive than politicians taking your home because you didn’t cut your grass?

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If you want to understand why the Trump administration is scrambling at the last minute to include a citizenship question in the 2020 census, you have to look beyond the lawsuits filed by Democrats anxious about the question’s political impact. The only reason that litigation produced a June 27 Supreme Court decision blocking the question was the blatant, bumbling mendacity of Commerce Secretary Wilbur Ross, whose rationale for the change Chief Justice John Roberts and four of his colleagues deemed “contrived” and “pretextual.”

Whether that conclusion should make a legal difference is a matter of dispute; four justices thought it shouldn’t. But if Ross, whose department includes the Census Bureau, had told the truth, or even if he had been better at lying, census forms with the citizenship question would already be rolling off the presses.

The evidence that Ross’s official explanation—that the Justice Department needed better data to enforce the Voting Rights Act (VRA)—was not the real reason for his decision persuaded three federal judges as well as a majority of the Supreme Court. It is not hard to see why.

“In the Secretary’s telling,” the Court said, “Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency).”

That record shows Ross “began taking steps to reinstate a citizenship question about a week into his tenure, but it contains no hint that he was considering VRA enforcement in connection with that project.” After making the decision for reasons he has yet to reveal, Ross spent months trying to gin up a respectable excuse.

Under Ross’ instructions, his policy director “initially attempted to elicit requests for citizenship data from the Department of Homeland Security and DOJ’s Executive Office for Immigration Review, neither of which is responsible for enforcing the VRA,” the Court said. “After those attempts failed, he asked Commerce staff to look into whether the Secretary could reinstate the question without receiving a request from another agency.”

The VRA rationale originated not with the Justice Department, as Ross repeatedly claimed, but with Commerce Department staffers trying to satisfy their boss’s demands. The DOJ was unwilling to write this cover story until Ross persuaded the attorney general to intervene, and even then, “the record suggests that DOJ’s interest was directed more to helping the Commerce Department than to securing the data.”

The DOJ letter requesting a citizenship question was not written until nine months after Ross had made his decision, and it “drew heavily on contributions from Commerce staff and advisors.” Furthermore, “after sending the letter, DOJ declined the Census Bureau’s offer to discuss alternative ways to meet DOJ’s stated need for improved citizenship data,” reinforcing the impression that the VRA justification was phony.

Why does it matter? “In order to permit meaningful judicial review, an agency must ‘disclose the basis’ of its action,” the Court said. “The reasoned explanation requirement of administrative law…is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.”

The Court left open the possibility that the Commerce Department could try again, this time without lying. It noted that the commerce secretary has wide discretion to determine the contents of the census and that review of such decisions is “deferential.”

The Trump administration now faces two problems. First, while there are plenty of plausible, nonpartisan reasons for asking about the legal status of U.S. residents in the census, coming up with one at this late date will smack of desperation.

Second, the administration has insisted all along that it had to start printing forms by last week in order to keep the census on schedule, which is why its appeal in this case went straight to the Supreme Court. The administration has weaved a tangled web for itself that will be hard to escape.

© Copyright 2019 by Creators Syndicate Inc.

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