Tag: in-the-news

Fittingly for someone who spent more than three decades as a member of the U.S. Senate, President Joe Biden holds the so-called world’s greatest deliberative body in high regard.

Biden calls the Senate his “second home” in his 2007 memoir and, as that metaphor suggests, it is often obvious that the relationship is about more than just a physical place. Biden sees the Senate—with its arcane rules and combative but dignified atmosphere—as the embodiment of what government should aspire to be. When Biden stresses that Americans must learn to disagree without disrespecting one another, as he did in his inaugural address, he’s drawing on the ethos of the Senate. “Unity requires you to eliminate the vitriol, make anything you disagree with about the other person’s personality. We have to get rid of that,” Biden said last month.

But when it comes to passing one of the new president’s first major policy initiatives, Senate Democrats are already looking for a divisive shortcut. As part of a $1.9 trillion COVID-19 relief bill, Biden is asking lawmakers to also pass a massive increase in the federal minimum wage—hiking it to $15 per hour from the current rate of $7.25 per hour. It’s both ironic and telling that doing so might require effectively abolishing an arcane rule that’s intended to encourage debate.

No, I’m not talking about the filibuster, though Democrats may eventually decide to do away with the rule that requires a supermajority of 60 votes to cut off debate and bring a bill to a final vote. Instead, they’re turning to an even less well-understood Senate rule: reconciliation.

Reconciliation was invented in 1974 when Congress rewrote its rules for passing budgets. It’s intended to allow Congress to quickly make changes to existing laws governing federal revenue and spending by limiting how long legislators can debate bills filed under the reconciliation process. In effect, it creates a way for a simple majority in the Senate to pass budget bills in certain circumstances without allowing the minority to hold up the process with the threat of a filibuster.

According to the Congressional Research Service, a think tank housed within Congress, the reconciliation process has been used 25 times. You may recall that Republicans recently used reconciliation to get the 2017 tax cuts through the Senate and that they tried (unsuccessfully) to use the process to repeal Obamacare.

Here’s where it gets extra confusing. To use this special filibuster-bypassing loophole, a bill must pass a multi-step test known as the “Byrd rule”—named for the late Sen. Robert Byrd (D–W.Va.), who invented the test as a way to limit the use of the reconciliation process.

Whether a bill comports with the Byrd rule is up to exactly one person: Senate Parliamentarian Elizabeth MacDonough, who is more or less an unelected mage responsible for interpreting the Senate’s rules and adjudicating disputes over them.

In order to clear the Byrd rule, and thus be eligible to be passed with a simple majority as opposed to 60 votes, a piece of legislation cannot contain elements that are ruled extraneous to the federal budget. There are other aspects of the Byrd rule banning legislation that inflates the long-term federal budget deficit (which is why the 2017 tax bill contained a bunch of gimmicky promises about future tax hikes) and prohibiting any changes to Social Security, but the budget mandate is the key issue at play with the proposed minimum wage increase.

Most aspects of Biden’s proposed $1.9 trillion COVID-19 relief bill would be eligible for passage under reconciliation. Boosting emergency spending or offering tax breaks to offset individuals’ and businesses’ losses due to the pandemic—regardless of whether they are fiscally smart policies or not—pretty clearly meet the Byrd rule’s threshold.”Bry

But does hiking the federal minimum wage? That’s debatable.

Progressives like Sen. Bernie Sanders (I–Vt.) are making a roundabout argument that increasing the federal minimum wage can be done via reconciliation because it would have some knock-on effect on federal tax revenue. In other words, forcing businesses to pay hourly workers higher wages will translate into higher taxable income for those workers and thus more tax revenue for the government. Additionally, the Economic Policy Institute, a progressive think tank, argues that a $15 federal minimum wage would decrease dependence on federal welfare programs by at least $13 billion annually.

But approaching the Byrd rule in that manner makes it effectively null and void. In strokes that broad, any major change to federal policy could have knock-on effects that impact tax revenues or future expenditures.

For example, if Biden were to propose that the federal government mandate every household adopt a dog within the next six months, one could argue that the corresponding uptick in demand for dog food and chew toys would force businesses that produce those products to hire more workers, and that hiring (and paying) more workers would impact federal tax revenue down the road. You might even be able to argue that the resulting increase in happiness would reduce future government health care expenditures (or perhaps that it would increase them since dog owners statistically live longer).

All those things might be true, but that wouldn’t make the Puppy Mandate of 2021 directly linked to the federal budget in a way that the reconciliation rules were crafted to allow.

But wait, there’s one more wrinkle—because this is the Senate and nothing is ever straightforward. If MacDonough rules that the minimum wage hike can’t be passed via reconciliation, the Senate can still overrule her decision.

Doing so would require a supermajority of 60 votes, so that’s probably not feasible—unless Vice President Kamala Harris, in her role as president of the Senate, unilaterally acts to overrule MacDonough. That’s never been done before, but The New York Times notes that it is technically allowed under Senate rules.

For now, this whole debate could be somewhat moot. Sen. Joe Manchin (D–W.Va.) says he won’t support a $15 national minimum wage. Instead, he’s proposing to hike the minimum wage to $11 per hour. And if Democrats can’t get unified support from all 50 of their members on this issue, then the reconciliation route is useless.

All of this procedural analysis ignores the strong policy-based arguments against raising the minimum wage to $15 per hour across the entire country. Including that wage hike in what is ostensibly a COVID-19 relief bill, as Reason‘s Billy Binion pointed out last week, is particularly bizarre since many businesses that would be subject to the higher labor costs are just struggling to keep their doors open right now. The Biden administration is touting a Congressional Budget Office report showing that a $15 national minimum wage would lift about 1 million workers out of poverty, but it is conveniently downplaying the fact that the same study says the change would eliminate 1.3 million jobs.

It’s certainly possible that Democrats will ignore that and try to ram the higher minimum wage—either $15 per hour or $11 per hour—through Congress using reconciliation. “We’re not going to take ‘no’ for an answer” is how Sanders described the effort to CNBC last week.

If so, we could be treated to the spectacle of the Biden administration’s second-in-command unilaterally overturning the Senate’s rules in an unprecedented way that virtually guarantees the Byrd rule no longer serves as a significant impediment to passing any legislation via the reconciliation process—and doing it so a controversial policy change can be implemented with the support, maybe, of just 50 senators plus the vice president.

After preaching about the value of unity and promising to end an era of political norm-breaking, that would be a heck of a way for Biden to demonstrate that he doesn’t much care about any of those things.

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According to reports, the new Biden administration and our allies in NATO are inclined to break the agreement to withdraw troops from Afghanistan by May. The change in direction is attributed to recent violence in the country, but almost 20 years into this forever war, it’s obvious that there will always be enough turbulence in the region to justify intervention for those who want it. With the U.S. military presence at a tantalizingly low level after two decades of fighting, ignoring the withdrawal deadline threatens to become a missed opportunity for cutting our losses and trying something different.

Since many of the troops now serving in Afghanistan were born after the U.S. invaded the country, it’s worth pointing out that the intervention was a response to the Taliban regime’s support of al Qaeda and Osama bin Laden after the 9/11 terrorist attacks. The Taliban was formally deposed by the end of 2001 and replaced by a nominally democratic, western-allied government. But the new rulers appear incapable of holding power without outside support and the fighting has never ended.

“Although almost exactly a year ago the United States entered with some fanfare into a withdrawal agreement with the Taliban, peace talks between the Islamic Republic of Afghanistan and the Taliban have so far yielded few substantive results,” the Special Investigator General for Afghanistan Reconstruction’s 50th quarterly report to Congress noted just last week. “There has been no cease-fire agreement and high levels of insurgent and extremist violence continued in Afghanistan this quarter despite repeated pleas from senior U.S. and international officials to reduce violence in an effort to advance the peace process.”

As a result, a NATO official told Reuters that “conditions have not been met. And with the new U.S. administration, there will be tweaks in the policy, the sense of hasty withdrawal which was prevalent will be addressed and we could see a much more calculated exit strategy.”

The Biden administration had earlier promised “to review the February 2020 U.S.-Taliban agreement” negotiated by the Trump administration with an eye to halting or reversing the Trump administration’s draw-down of troops to the lowest levels since the 2001 invasion. The new president will “assess whether the Taliban was living up to its commitments to cut ties with terrorist groups, to reduce violence in Afghanistan, and to engage in meaningful negotiations with the Afghan government and other stakeholders.”

The Department of Defense appears to have already made a decision.

“The Taliban have not met their commitments,” Pentagon Press Secretary John F. Kirby announced on January 28. “Without them meeting our commitments to renounce terrorism and to stop the violent attacks on the Afghan National security forces and by dint of that the Afghan people, it’s very hard to see a specific way forward for the negotiated settlement.”

But we’ve been here before. Eight years after the initial invasion of Afghanistan, the Obama administration deployed tens of thousands of new troops to the country as part of an overall increase of the American presence. As vice president at the time, Joe Biden vowed, “we will leave in 2014.” Instead, then-President Obama kept troops in place and even expanded their authority to fight the Taliban.

Almost five years later, 20 years into the invasion, after thousands of U.S. military and over 100,000 civilian casualties, there’s still no convincing plan to turn Afghanistan into a stable and peaceful country. Maybe it’s time to try a different approach.

“There has been growing public interest in rethinking the U.S. role in the world,” RAND Corporation analysts noted in a recent and very timely report. “Under one option, a realist grand strategy of restraint, the United States would adopt a more cooperative approach toward other powers, reduce the size of its military and forward military presence, and end or renegotiate some of its security commitments.”

The RAND report discusses some specific recommendations for leaving Afghanistan no matter the country’s continuing turbulence. Despite early hopes to the contrary, it points out, “advocates of restraint have long accepted that the Taliban will play an important role in the future of Afghanistan.” One cited expert with that opinion is John Glaser, the Cato Institute’s director of foreign policy studies.

“Even as America announces her impending withdrawal from Afghanistan, she still helplessly clings to the very fantasies that have kept her bogged down in this quagmire for nearly 20 years,” Glaser wrote last March. “We have not remade Afghan politics. We have not established a stable, democratic, independent government in Kabul. We have not defeated the Taliban.”

“Exiting the war should be the priority, regardless of conditions on the ground,” Glaser adds.

Importantly, the RAND analysts don’t discuss restraint only in relation to Afghanistan, but as part of a big overall shift away from military intervention. While the arguments for restrained foreign policy predate recent events, they’ve become more urgent as “the United States is facing several national security challenges at the same time that the federal budget is under pressure because of public health and infrastructure crises.”

That is, the forever war in Afghanistan may be an especially pressing example of the case for reducing America’s expensive—in lives and money—military commitments. But the same arguments apply to dealings in other regions and with other conflicts, and these arguments “have taken on new urgency because of the direct costs and broader economic effects of responding” to the COVID-19 pandemic.

Undoubtedly, it’s frustrating for policymakers to concede defeat and walk away from messes partially of their own making. But two decades of failure should be evidence enough that an approach won’t work—especially when it was first attempted at a time of greater resources than are now available.

The U.S. and its allies have a deal in place for, finally, getting out of Afghanistan. After 20 years of intervening without remaking the place, it’s time for the U.S. to cut its losses and leave the country’s people to decide their own fate.

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Milwaukee police officers left a 4-year-old girl in an impounded car overnight after arresting the girl’s mother on suspicion of drunk driving. On Tuesday, lawyers for the family filed a lawsuit against the city and the police sergeant of Milwaukee, as well as five officers involved in the incident, which occurred in November 2018.

Police had responded to a call about a minivan pulled over on the side of the road and wound up taking the girl’s mom into custody. The girl, identified by the initials F.K., was sleeping in the back of the van—and her aunt told police this, the suit against the city claims.

But police ordered the aunt (who had also been in the vehicle) to leave the car and did not bother checking for the child, according to the girl’s lawyers. Instead, the officers—who did not have their body cameras turned on—let the vehicle be towed to a nearby impound lot, on a night where the temperature dropped below freezing.

The girl was discovered the next day when someone working in a nearby tow lot heard her “very upset and crying,” said Jeff Polenske, a city engineer, at a press conference about the incident. She was taken to a local hospital emergency room.

Polenske added that city protocols for impounded vehicles were being reviewed. Not checking the car apparently went against city protocol, which says Milwaukee cops must “thoroughly” search a vehicle at the scene before it is towed and that the city tow lot operator should also inspect the vehicle.

The girl’s mother was criminally prosecuted for child neglect and driving under the influence and sentenced to 10 months in prison. She was also ordered to have no contact with her children. Local news reports at the time portrayed the girl’s abandonment in the vehicle overnight as the mother’s fault.

Heading to a hearing this afternoon for the Mom whose 4-y/o daughter was left in a freezing minivan overnight at the #Milwaukee tow lot. Blair Springfield was arrested and charged with DUI and child neglect for the Nov. 12th incident and a similar one in Sept. #WISN12 at 5. pic.twitter.com/bzfDnOZB1f

— Nick Bohr (@NickBohrWISN) November 27, 2018

Two Milwaukee police officers received suspensions over the incident. James Collins—one of five officers named as defendants in the lawsuit, along with Fabian Garcia, Antonio Dorsey, Emily Markert, and David Paszkiewicz—was suspended for 25 days, according to TMJ4 Milwaukee. Garcia was suspended for 10 days.

“Collins was the same officer involved in the controversial arrest of Sterling Brown, the former Milwaukee Bucks player,” notes TMJ4. The city wound up paying $750,000 to Brown, who was tased by police responding to a report that Brown was parked illegally.

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FREE MINDS

Texas police accidentally sent out an Amber Alert featuring a Chucky doll. Chucky was described as a 3’1″, 16-pound, 28-year-old male “wielding a huge kitchen knife” who was suspected of abducting a 5-year-old, 6-pound male named Glen—a character who in the Chucky universe is Chucky’s son.

“While the alert appeared to be a mistake, it was sent out via email three separate times to subscribers of the Texas Alerts System Friday morning,” noted San Antonio news station KENS5.

KENS 5 reached out to DPS, the agency that manages the alert system, for comment and received this response:

“This alert is a result of a test malfunction. We apologize for the confusion this may have caused and are diligently working to ensure this does not happen again.”

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FREE MARKETS

Remote working will outlast the pandemic, predicts Derek Thompson at The Atlantic, noting that constraints on remote work’s popularity have long been more social or cultural than technological.

According to the economist David Autor, remote work suffered from a “telephone problem.” Seven decades after the first telephone was patented in the 1860s, fewer than half of Americans owned one. Behavior dragged behind technology, because most families had no use for a telecom machine as long as none of their friends also owned one. In network theory, this is known as Metcalfe’s Law: The value of a communications network rises exponentially with the number of its users.

The same has been true of remote work. In 2018, it was weird and rude to ask a boss to move a meeting to Skype, or to tell a business partner to fire up a Zoom link because you can’t make lunch. The teleconference tech existed, but it was considered an ersatz substitute for the normal course of business.

“The most important outcome of the pandemic wasn’t that it taught you how to use Zoom, but rather that it forced everybody else to use Zoom,” Autor told me. “We all leapfrogged over the coordination problem at the exact same time.” Meetings, business lunches, work trips—all these things will still happen in the after world. But nobody will forget the lesson we were all just forced to learn: Telecommunications doesn’t have to be the perfect substitute for in-person meetings, as long as it’s mostly good enough. For the most part, remote work just works.

All of this could have huge implications for not just where people choose to live but politics and the distribution of employment opportunities, too, which Thompson teases out in his piece. One particularly interesting tidbit:

According to U-Haul’s annual review, California lost more people to out-migration than any other state in 2020, and the five largest states in the Northeast—New York, Pennsylvania, New Jersey, Massachusetts, and Maryland—joined California in the top 10 losers. Rents have fallen fastest in “pricey coastal cities,” including San Francisco, Seattle, Los Angeles, Boston, and New York City, according to Apartment List. Zillow data also show that home values in New York, San Francisco, and Washington, D.C., are growing below the national average.

States seeing the most one-way U-Haul truck rentals to them during the pandemic were Tennessee, Texas, Florida, Ohio, Arizona, Colorado, Missouri, Nevada, North Carolina, and Georgia.

“California ranks last by a wide margin, supplanting Illinois as the state with the greatest net loss of U-Haul trucks,” the company reports. “California has ranked 48th or lower since 2016. Illinois has been 49th or 50th since 2015, when U-Haul began ranking states based on annual net gain.”

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QUICK HITS

• “Atomization and sentimentality exacerbate each other, after all: you break the bridges of connection across society, and then give each island a fairy tale about its uniqueness.” The New Yorker looks at Joan Didion’s newest collection of (old) essays, Let Me Tell You What I Mean.

• Santa Clara University law student and researcher Jess Miers explores “must carry” laws related to Section 230, including the new Protecting Constitutional Rights from Online Platform Censorship Act. “The overall point of these ‘must-carry’ reforms remains the same: websites must-carry any and all First Amendment protected speech. It sounds great in theory, especially for zealous speech advocates. But in practice, it’s a boon for online trolls.”

• “Transgression has been replaced by trauma as the cultural concept of the hour: making rules rather than breaking them has become the signature aesthetic move,” writes feminist author Laura Kipnis in the new journal Liberties.

• A resolution introduced in the Rhode Island House of Representatives last week would create a study commission to study the criminalization of commercial sex.

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2/3/1812: Justice Joseph Story takes oath.

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Hamilton, Georgia, Police Chief Gene Allmond has resigned and Patrolman John Brooks has been fired after the two were caught on Brooks’ body cam repeatedly using the n-word, while discussing  a Black Lives Matter protest. The officer had believed his body cam was not working, but when another city official examined the camera he found it actually had a full memory card, which included the conversation between Allmond and Brooks.

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People hate America’s big disparities in wealth. It’s a reason why, among young people, socialism is as popular as capitalism.

The Democratic Socialists of America want a country based on “freedom, equality and solidarity.” That sure sounds good.

But does socialism bring that?

My new video debunks several myths about socialism.

One reason for socialism’s continued appeal is linguist Noam Chomsky. For generations, his work has taught students that capitalism is “a grotesque catastrophe.”

I assumed the fall of the Soviet Union would put an end to such misinformation. It did—for about a month.

But since then, the lust for socialism has come back strong. Today, Chomsky says that the Soviet Union “was about as remote from socialism as you could imagine.”

“Absurd!” responds economist Ben Powell, author of Socialism Sucks: Two Economists Drink Their Way Through the Unfree World.

When the Soviets made private businesses illegal, says Powell, “that’s about as close as the world ever saw” to pure socialism.

Now that the Soviet Union is gone, MSNBC anchor Ali Velshi says, “there is no true socialist country that exists.”

No? What about Cuba, China, North Korea, Vietnam, and Venezuela?

Velshi didn’t respond when we asked him.

Venezuela was once Latin America’s richest country. Now it’s the poorest. Many in the media claim that its fall has “nothing to do with socialism,” just “poor governance.”

John Oliver says, “Chavez’s programs could have been sustainable if he pursued a sound economic policy.”

“Yeah,” laughs Powell. “Sustainable if he had a sound economic policy called capitalism.”

I push back. “Why does it have to be capitalism?” Why not socialism without bad management?

“That’s the nature of socialism!” Powell replies. “Their economic policies fail to adjust to reality because economic reality evolves every day. It’s millions of decentralized entrepreneurs and consumers making fine-tuning adjustments.”

Powell notes that in our capitalist society, when COVID-19 hit, businesses quickly adjusted. Restaurants switched to takeout and delivery. They built outdoor patios with heat lamps. Supermarkets opened early so the elderly could shop with less risk. Alcohol companies started producing hand sanitizer. Ford used its 3D printers to make face masks.

The media whined about “lack of federal direction,” but no central authority could direct all those individual adjustments in thousands of different places. In fact, federal direction would have prevented it.

“In a socialist economy, you get a one-size-fits-all adjustment,” adds Powell. “You miss out on this learning process where entrepreneurs copy others when they see things successful and stop doing it when it’s not.” By contrast, “In a market economy, everybody’s little adjustments get tested, and we get to see what works.”

In America, Blockbuster video was a great success. But then Netflix offered something better—no driving to a store, no late fees. Because Blockbuster didn’t immediately adjust, it went bankrupt.

“In a socialist economy, every adjustment needs to be commanded,” says Powell. “Communicate it down and get everybody to do the right thing. That’s impossible.”

That’s why under socialism, shortages are routine. In Venezuela, there’s so little food for sale that Venezuelans have lost weight.

Yet, “journalists” at Vox produced a video titled, “The Collapse of Venezuela, Explained,” without mentioning socialism even once. Vox‘s explanation for Venezuela’s fall: “Oil prices plummeted.”

“The oil price is a complete distraction,” says an exasperated Powell. “There’s plenty of countries that depend on oil revenue. When oil prices went down, people there didn’t start losing weight. That just happened in Venezuela.”

Some claim Venezuela and Cuba’s people struggle mainly because of America’s economic sanctions and embargo.

“They certainly don’t help the people,” says Powell, “but it’s an afterthought as a reason for their suffering.”

The U.S. only sanctioned a few Venezuelan officials and their operations—not the country as a whole.

In Cuba, Powell points out: “They drive around 1950s U.S. cars…but there’s no U.S. Navy destroyers preventing Kia, Fiat, and whoever else around the world from sending them cars. The reason for their suffering is they have an economic system that can’t deliver.”

Socialism delivers misery.

Next week, three more myths about socialism.

COPYRIGHT 2020 BY JFS PRODUCTIONS INC.
DISTRIBUTED BY CREATORS.COM

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Just before 45 Republican senators voted against considering Donald Trump’s impeachment on the grounds that the Constitution does not allow the Senate to try a former president, Majority Leader Chuck Schumer dismissed their argument as transparently bogus. “The language is crystal clear, with no ambiguity,” the New York Democrat insisted.

If that were true, legal scholars would not still be debating this issue 233 years after the Constitution was ratified. As the Senate prepares to try Trump on the charge that he incited the January 6 Capitol riot with false claims of a stolen election, one thing is “crystal clear”: There are plausible arguments on both sides of the debate about whether that proceeding is constitutional.

The clearest historical precedent for Trump’s trial is the case of William Belknap, who resigned as secretary of war in 1876 just before he was impeached by the House on corruption charges. While most senators thought Belknap’s resignation did not put a stop to the case against him, the minority who disagreed was large enough to ensure his acquittal—the same outcome we are likely to see in Trump’s case.

The basic reason for this disagreement is that the Constitution, contrary to what Schumer seems to think, neither explicitly allows nor explicitly prohibits the impeachment of former officials. The question therefore hinges on the history and purposes of the impeachment power, which are open to interpretation.

Michigan State law professor Brian Kalt, who published a comprehensive 2001 survey of the subject in the Texas Review of Law and Politics, argues that the weight of the evidence favors the constitutionality of “late impeachment.” But he calls it “a close and unsettled question.”

George Washington University law professor Jonathan Turley is skeptical of the case for late impeachment, which he says does not easily fit the constitutional text. But like Kalt, he describes the issue as “a close question upon which people of good faith can disagree.”

Preconstitutional practice in England and America included impeachment of former officials. Ten of the 12 state constitutions that were written before the U.S. Constitution was drafted addressed impeachment. In those state constitutions, Kalt notes, “late impeachment was either required, permitted, or not discussed, but was nowhere explicitly forbidden.”

Did the Framers mean to break from historical practice by limiting impeachment to current officials? If so, they never clearly expressed that intent.

The Constitution says “the President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” It gives the House the “sole Power of Impeachment” and the Senate “the sole Power to try all Impeachments,” while limiting the penalties to removal from office and disqualification from future federal office.

This “poor drafting,” as Kalt describes it, leaves unresolved the question of whether the optional penalty of disqualification is enough to justify a Senate trial when the mandatory penalty of removal from office is no longer possible. As Turley sees it, “a private citizen is being called to the Senate to be tried for removal from an office that he does not hold.”

Kalt and many other scholars argue that the aims of accountability and deterrence would be frustrated if a president could avoid impeachment or trial by committing “high crimes and misdemeanors” toward the end of his term (as Trump is accused of doing) or by resigning (as Belknap and Richard Nixon did) after his misconduct comes to light. They also argue that disqualification is an important remedy when a president guilty of serious misconduct might plausibly make a comeback.

The “good faith” to which Turley aspires is hard to perceive in the arguments offered by most of Trump’s critics and defenders. As Stanford law professor Michael McConnell (who thinks Trump’s trial is constitutional) notes, “much of the discussion…consists of motivated reasoning on both sides that no doubt would be the opposite if partisan roles were reversed.”

© Copyright 2021 by Creators Syndicate Inc.

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My Pillow CEO Mike Lindell, an ardent supporter of former President Donald Trump who wrongly believes the 2020 presidential election was stolen, appeared on Newsmax Wednesday to discuss his suspension from Twitter.

The topic of the segment was supposed to be Big Tech’s censorious efforts to silence Lindell. But the businessman immediately veered off-topic and into conspiracy theory territory, forcing producers to abruptly cancel the interview—and inadvertently making an important point about Section 230, the federal law that protects social media companies from liability and has undeservedly become an object of conservative ire.

The interview began with the host prompting Lindell to address his company’s suspension from Twitter.

“[My Twitter account] was taking down because we have all the election fraud, with these Dominion machines,” said Lindell. “We have 100 percent proof, then they took it down…”

At that point, anchor Bob Sellers interrupted him and informed viewers that “we at Newsmax have not been able to verify any of those allegations, and there is nothing substantive that we have seen.” The host and Lindell then talked over each other for a while. Watch below:

Wowwwwwww. pic.twitter.com/i9bZPDBAYt

— Raheem Kassam (@RaheemKassam) February 2, 2021

This raises a question that more conservative critics of social media should be asking themselves: If it’s censorship when Twitter yanks Lindell off its platform for making false and potentially defamatory claims, is it not censorship when Newsmax does the same thing? Have conservative news outlets that refused to interview Lindell effectively silenced him in the same way Facebook has?

The answer, obviously, is no—of course Newsmax is under no obligation to permit Lindell to make such statements. Neither is Twitter. Neither is Facebook.

Newsmax is under greater pressure to deplatform Lindell, of course. The network is facing a potential defamation lawsuit from Dominion, the voting machine company wrongly maligned by many Trump surrogates. Bringing Lindell on the airwaves and letting him make defamatory statements puts Newsmax in significant legal jeopardy.

Unlike Newsmax, social media companies cannot be held liable for Lindell’s defamatory comments. Section 230 establishes that internet platforms are not responsible for users’ content, except in a few special cases. Social media companies can take action against concerning content, of course—they just aren’t required to do so.

Many conservatives—most notably, Sen. Josh Hawley (R–Mo.)—have fallen in love with the idea of repealing Big Tech’s liability protection, perhaps in order to really stick it to Facebook and Twitter. But the results of such a move are easy to predict: Without Section 230, Facebook and Twitter would moderate even more content.

Indeed, a social media platform deprived of Section 230’s protection wouldn’t suddenly become a more careful steward of conservative speech, but the opposite. It would be forced to behave exactly the way Newsmax did with Lindell. It would silence anyone whose speech was remotely likely to cause legitimate complaints. It would have no choice.

This is a prospect that delights many Democrats, including President Joe Biden and Sen. Elizabeth Warren (D–Mass.), both of whom support 230’s repeal. That pro-Trump Republicans want to aid them in this effort is truly perplexing.

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CNN and other outlets have speculated that the Biden Administration may withdraw the Trump Administration’s brief in California v. Texas, the Obamacare challenge. Elizabeth Prelogar, the Acting Solicitor General, is probably recused from the ACA Case. She filed an amicus brief on behalf of 47 members of Congress. As a result, Deputy Solicitor General Edwin Kneedler, the most senior person in OSG, would have to decide whether to withdraw the Trump Administration’s brief.

Will Baude and others have discussed the propriety of withdrawing the brief. There is another strategic consideration at play. If the Biden administration withdraws the brief, it will have to file a new brief in its place. And, presumably, that brief would argue that (1) the Plaintiffs lack standing, (2) the challenged provisions are constitutional, and (3) if the Court decides otherwise, it should use a scalpel to sever the unconstitutional provisions, leaving the rest of the act intact.

But there may be some reason to think OSG would leave the current brief in place: a decision on standing ground is risky. I flagged this concern shortly after oral arguments:

There are two general postures in which a statute can be challenged. The traditional posture is that a plaintiff seeks a declaration that a law is unconstitutional. Here, the Plaintiff must assert that the statute causes an Article III injury. Generally, the government must take some sort of enforcement action to cause that injury. There is a second, less common posture: the government tries to enforce a statute against a person, and she raises as a defense that statute is unconstitutional. For example, in Bond v. United States, the defendant argued that his prosecution was invalid because a chemical weapons treaty violated the principles of federalism. In this case, Article III standing was obvious because the government sought to prosecute Bond with the statute.  I’ll call the first path the offensive posture and the second path the defensive posture.

In California v. Texas, even if the Court holds that the plaintiffs lack standing to challenge the ACA in an offensive posture, a defendant in another case could challenge the ACA in the defensive posture. . . .

If the Court dismisses the case for lack of standing, the controversy would linger. During that time, the fate of the ACA would remain in doubt. Dismissal does not provide an easy way out of this dispute.

OSG would prefer to win on the merits, or win on severability. But a win on standing would be short-lived. In the future, the federal government will take some enforcement action in Texas against a person based on the ACA. And that defendant, relying on circuit precedent, could argue that the entire ACA is unconstitutional. In this case, there would be no doubts about standing. The Biden Administration does not want the validity of the ACA floating in doubt for the next three years. In 2010, DOJ argued that the Tax Anti-Injunction Act did not bar the original ACA challenge. The Obama Administration wanted order to settle the validity of the law before the election.

Ultimately, Kneedler may decide to leave things as they are. Or, the Court could decide the case tomorrow, thus relieving the SG of the need to take any action. A Wednesday decision date in the middle of the February recess is unusual. I checked SCOTUSBlog’s calendar, and could not find any Wednesday decision days in February over the past five years. Stay tuned.

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Responding to Donald Trump’s impeachment in a 14-page brief filed today, his lawyers argue that he cannot be tried by the Senate because he is no longer president and that his promotion of the baseless claim that Joe Biden stole the presidential election, which inspired hundreds of his followers to launch a deadly attack on the Capitol last month, was protected by the First Amendment. And by the way, they say, there is “insufficient evidence” to conclusively determine that Trump’s wild claims of massive election fraud were false.

The House managers charged with prosecuting Trump in the Senate preemptively rebut those arguments in an 80-page trial memorandum that was also filed today. Their case is much more thorough and, on the whole, persuasive.

Trump’s argument that the Senate is not authorized to try him focuses on the constitutional text, which says the president “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The Constitution gives the House the “sole Power of Impeachment” and the Senate “the sole Power to try all Impeachments,” while limiting the penalties to “removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”

Those provisions do not apply to Trump, “since he is no longer ‘President,'” his lawyers say. “The constitutional provision requires that a person actually hold office to be impeached. Since the 45th President is no longer ‘President,’ the clause ‘shall be removed from Office on Impeachment for…’ is impossible for the Senate to accomplish, and thus the current proceeding before the Senate is void ab initio as a legal nullity that runs patently contrary to the plain language of the Constitution.” They also argue that “removal from office by the Senate of the President is a condition precedent which must occur before, and jointly with, ‘disqualification’ to hold future office,” meaning that a Senate trial cannot be justified by the possibility of disqualifying Trump from future federal office.

There are compelling arguments against this interpretation, based on the historical background, purposes, and prior use of the impeachment power. The House managers summarize those arguments in a 27-page section of their memorandum, noting that many legal scholars of various political persuasions think Trump is wrong on this point.

Michigan State law professor Brian Kalt gets into greater detail in his comprehensive 2001 treatment of the subject. While the record is mixed and often ambiguous, Kalt argues, the weight of the evidence supports impeachment and trial of former federal officials. Still, he calls it “a close and unsettled question.” George Washington University law professor Jonathan Turley, who is more inclined to credit Trump’s argument, likewise says the constitutionality of impeaching or trying a former president is “a close question upon which people of good faith can disagree.”

Trump’s argument that his unrelenting campaign to overturn Biden’s victory was consistent with his duties as president is much harder to take seriously. While Trump indisputably had a right to challenge the election results in court, the House managers note, the scores of lawsuits he and his allies filed were almost uniformly unsuccessful and never came close to changing the outcome. Instead of accepting the result, Trump continued to insist for months that he had actually won by a landslide, a fact he said would be apparent but for an elaborate criminal conspiracy that involved tricky election software and massive paper-ballot fraud.

“No President had ever refused to accept an election result or defied the lawful processes for resolving electoral disputes,” the House managers say. “Until President Trump.”

Some of the steps Trump took in the service of his election fantasy were by themselves clear abuses of power. The trial memorandum notes, for example, that he “tried to induce Michigan’s top Republican legislative officials to violate Michigan law by rejecting the popular vote and selecting a Trump slate of electors.” In a January 2 telephone conversation, Trump pressured Georgia Secretary of State Brad Raffensperger to “find” the votes necessary to overturn Biden’s victory in that state, warning that failing to do so would be “a criminal offense” and “a big risk for you.” Trump publicly and privately urged Vice President Mike Pence to block congressional affirmation of Biden’s victory. Since that is a power the vice president does not actually have, Trump was soliciting Pence to do something illegal.

Meanwhile, Trump continued to press his doomed cause with highly inflammatory rhetoric, castigating Republicans who questioned his claims and warning that democracy would be destroyed if Biden were allowed to take office. He continued doing that even after it became clear that some of his followers were responding with death threats and violence. His campaign to overturn the election results culminated in his fiery January 6 speech to thousands of supporters who had gathered in Washington, D.C., to “stop the steal” at his behest.

“All of us here today do not want to see our election victory stolen by emboldened radical-left Democrats, which is what they’re doing, and stolen by the fake news media,” Trump told them. “We will never give up. We will never concede….You’ll never take back our country with weakness. You have to show strength.”

Trump made the stakes clear. “We’re going to have somebody in there that should not be in there,” he said, “and our country will be destroyed. And we’re not going to stand for that.”

The House managers suggest that Trump’s speech, during which he also warned that “if you don’t fight like hell you’re not going to have a country anymore,” legally qualified as incitement to riot and exceeded the bounds of free speech as described by the Supreme Court in the 1969 case Brandenburg v. Ohio. They also imply that the Trump’s remarks disqualified him from office under Section 3 of the 14th Amendment, which applies to federal officials who “have engaged in insurrection or rebellion.”

All three propositions are dubious. But you need not believe them to conclude that Trump acted recklessly, without regard to the probable impact of his words, when he fired up the protesters with his apocalyptic warnings and demands for action while directing them at the Capitol, where a joint session of Congress was about to confirm the election results. Notwithstanding his suggestion that the protesters make their voices heard “peacefully,” it was entirely predictable that at least some of them would go further than that.

After the protest turned violent, Trump compounded his irresponsibility by only belatedly urging his supporters to be “peaceful,” even while reinforcing the imaginary grievance on which the rioters were acting. “At 1:49 PM, after insurrectionists had overcome the Capitol perimeter—and after reports of pipe bombs had been confirmed—President Trump retweeted a video of his speech at the rally,” the trial memorandum notes. “Just over thirty minutes later, at 2:24 PM, while rioters were still attacking police and after Vice President Pence had been evacuated from the Senate floor, President Trump again tweeted to excoriate the Vice President for refusing to obstruct the Joint Session: ‘Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution.'”

The House managers add that Trump “did not take any action at all in response to the attack until 2:38 PM, when he issued his first tweet, and 3:13 PM, when he issued a second.” The first tweet said protesters should “remain peaceful,” while the second said there should be “no violence.”

During this time, the House managers say, “not only did President Trump fail to issue unequivocal statements ordering the insurrectionists to leave the Capitol; he also failed in his duties as Commander in Chief by not immediately taking action to protect Congress and the Capitol. This failure occurred despite multiple members of Congress, from both parties, including on national television, vehemently urging President Trump to take immediate action.”

Finally, more than three hours after the riot started, Trump released a video in which he urged “peace” and told his supporters to “go home.” At the same time, he reiterated that the election was “stolen from us” after he won in “a landslide” and closed with this mixed message: “We love you, you’re very special.…I know how you feel. But go home and go home in peace.” That evening Trump tweeted: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”

Trump later told reporters his pre-riot speech was “totally appropriate.” According to his lawyers’ brief, he simply “expressed his opinion that the election results were suspect.” To the extent that the impeachment “alleges his opinion is factually in error,” they say, Trump “denies this allegation.” More generally, the brief says, Trump after the election “exercised his First Amendment right” to “express his belief that the election results were suspect, since with very few exceptions, under the convenient guise of Covid-19 pandemic ‘safeguards,’ states’ election laws and procedures were changed by local politicians or judges without the necessary approvals from state legislatures.”

That argument, which state and federal judges rejected in every case but one (involving election observers in Pennsylvania), is just a small part of the story Trump has been telling since the election. He has insisted, again and again, that Biden won only because of massive cheating on a scale never before seen in U.S. history. Neither his lawyers nor any of his allies were able to muster credible evidence to back up that tall tale. Yet his lawyers’ take is that “insufficient evidence exists upon which a reasonable jurist could conclude that the 45th President’s statements were accurate or not, and he therefore denies they were false.”

Trump also avers that his statements, true or not, cannot amount to an impeachable offense because they were protected by the First Amendment. But freedom of speech “does not protect government officials from accountability for their own abuses in office,” the House managers say. “The Supreme Court has made clear that the First Amendment does not shield public officials who occupy sensitive policymaking positions from adverse actions when their speech undermines important government interests. Thus, just as a President may legitimately demand the resignation
of a Cabinet Secretary who publicly disagrees with him on a matter of policy (which President Trump did repeatedly), the public’s elected representatives may disqualify the President from federal office when they recognize that his public statements constitute a violation of his oath of office and a high crime against the constitutional order.”

George Mason law professor Ilya Somin likewise notes that “high government officials don’t have a First Amendment right to be protected from firing based on their political views.” That principle, he says, “applies to presidents facing impeachment no less than other officials.”

The House managers also address the argument that Trump’s trial will only exacerbate the bitter political divisions between his supporters and his opponents. “Many have suggested that we should turn the page on the tragic events of January 6, 2021,” they say. “But to heal the wounds he inflicted on the Nation, we must hold President Trump accountable for his conduct and, in so doing, reaffirm our core principles. Failure to convict would embolden future leaders to attempt to retain power by any and all means—and would suggest that there is no line a President cannot cross. The Senate should make clear to the American people that it stands ready to protect them against a President who provokes violence to subvert our democracy.”

Since Trump’s acquittal seems to be a foregone conclusion, I’m not sure how clear a message the trial will send on that score. But there is value in laying out the details of this shameful and horrifying episode. Even if only a handful of Republicans favor conviction, a bipartisan vote will signal that Trump did much more, and much worse, than express an opinion.

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