Tag: news

Treating All Neck Restraints As Deadly Force Would Help Curtail Police Brutality

George Floyd’s suffocation by Minneapolis police has focused renewed attention on potentially lethal neck restraint techniques, an issue addressed both by the executive order on “safe policing” that President Donald Trump issued today and the package of reforms that House Democrats introduced last week. Those two measures differ in scope, and both depart from what is probably the best approach: treating all neck restraints as a use of deadly force that can be justified only in special circumstances.

Neck restraints, which aim to subdue a suspect and/or render him unconscious, fall into two categories: respiratory neck restraints, which cut off air flow by applying pressure to the larynx and trachea, and vascular neck restraints, which cut off blood flow to the brain by applying pressure to the carotid arteries. Although both kinds of restraints are commonly known as “chokeholds,” that term, strictly speaking, applies only to the first kind, which is more dangerous even when performed properly.

In practice, however, the distinction between the two kinds of techniques can be fuzzy. A vascular restraint can easily become a chokehold if the officer’s technique is sloppy or if his arm slips as he struggles with a suspect who is actively resisting or reacting involuntarily to the maneuver.

Trump’s order instructs the attorney general to “allocate Department of Justice discretionary grant funding” only to state and local law enforcement agencies that seek certification from “independent credentialing bodies.” One criterion for certification is that the agencies “prohibit the use of chokeholds—a physical maneuver that restricts an individual’s ability to breathe for the purposes of incapacitation—except in those situations where the use of deadly force is allowed by law.” In the 1985 case Tennessee v. Garner, the Supreme Court said the Fourth Amendment, which prohibits “unreasonable” seizures, allows police to use deadly force only when they have “probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”

On the face of it, Trump’s definition of chokehold is limited to techniques that deliberately restrict air flow “for the purposes of incapacitation,” meaning it would not include vascular neck restraints that can unintentionally obstruct breathing when used improperly. It might not even apply to the idiosyncratic technique that now-former Minneapolis police officer Derek Chauvin used when he kneeled on Floyd’s neck for nearly nine minutes. While it’s not clear what Chauvin’s intent was, that maneuver, notwithstanding its deadly effect, presumably would not qualify as a chokehold under Trump’s order if Chauvin was trying, however ineptly, to compress Floyd’s carotid arteries rather than prevent him from breathing.

The House Democrats’ Justice in Policing Act, by contrast, would prevent a state or local government from receiving two kinds of law enforcement grants unless it has a law that bars police from using “a chokehold or carotid hold.” That phrase is defined as “the application of any pressure to the throat or windpipe, the use of maneuvers that restrict blood or oxygen flow to the brain, or carotid artery restraints that prevent or hinder breathing or reduce intake of air of an individual.”

Anna Swanson, an attorney and Houston police officer, recommends a mixture of those two approaches in a 2016 South Texas Law Review article. “All types of neck restraints have the potential to cause death, and have caused death in various incidents,” she writes. “In light of the risk and reality of death, chokeholds and neck restraints of any type should be classified as deadly force….Neck restraints should be viewed in the same light as firearms because both have the potential for fatal outcomes each time they are used.”

The Supreme Court passed up an opportunity to clarify the constitutionality of neck restraints in 1983, when it ruled that a chokehold victim did not have standing to seek an injunction against the Los Angeles Police Department’s use of the technique. Swanson’s description of the case, Los Angeles v. Lyons, vividly communicates the trauma inflicted by neck restraints even when they are not fatal:

Adolph Lyons was placed in a chokehold by Los Angeles police during a traffic stop on October 6, 1976, which rendered him unconscious and caused damage to his larynx. Mr. Lyons was pulled over due to a burned out tail light, told to exit his vehicle, slammed on the hood of the police car and when Mr. Lyons complained of pain, the officer put his forearm around his throat and began to choke him. The chokehold was applied to Mr. Lyons until he blacked out. When Mr. Lyons regained consciousness he was on the ground, gasping for air, spitting up blood and dirt, and had urinated and defecated on himself. After Mr. Lyons regained consciousness, police issued him a traffic citation and he was released.

While conceding that “Lyons may have been illegally choked by the police,” the Supreme Court declined to determine whether that use of force was constitutional, saying only that the injunctive remedy Lyons sought was not available to him. Since then, federal appeals have ruled that chokeholds are reasonable under the Fourth Amendment in some situations, primarily when the suspect is violently resisting and/or has a history of doing so, and unreasonable in others, primarily when those circumstances are lacking.

Because of Lyons, the remedies in the latter cases have been limited to damages, leaving police departments free to continue their preexisting neck-restraint practices as long as they are willing to pay the occasional victim. And “even though some circuit courts have found the use of neck restraints to be an unreasonabl[y] severe use of force,” Swanson notes, “neck restraints and chokeholds are still used to detain suspects who give minimal or no resistance to law enforcement.”

Most state legislatures have not imposed limits on neck restraints. And while some police departments have, those policies—the solution favored by Trump’s order—are not necessarily effective. “Even when the use of chokeholds is prohibited by police department policy,” Swanson writes, “chokeholds are still used in situations where officers are not threatened with serious bodily injury or death, as demonstrated by the Eric Garner incident in 2014.”

Neither court rulings, local and state laws, nor department policies have established the uniform rule that Swanson favors, which would treat neck restraints the same as firearms in use-of-force cases. “A total ban is an extreme response that is not practical in the context of policing where the use of lethal force is constitutionally reasonable under circumstances where officers are faced with imminent serious bodily injury or death,” she argues. “Thus, legislation that limits the use of chokeholds to situations where deadly force is required are the more practical, and constitutionally sound, legislative attempts at addressing law enforcement use of neck restraints.”

Through court rulings and/or legislation, Swanson recommends, “all types of neck restraints should be categorically deemed a use of deadly force and only found reasonable in situations that merit the use of deadly force.” She adds that if Lyons were overturned, courts would have more power to address the issue. “When an ongoing, unconstitutional practice of police use of force results in death,” Swanson says, “the federal courts should have the power to stop it through the ability to enjoin and scrutinize the potentially unconstitutional practice.” She also suggests that the Justice Department encourage tighter restrictions on neck restraints through “pattern or practice” litigation under 42 USC 14141.

“People have been harmed and killed by neck restraints for decades,” Swanson writes. “History reflects the need for neck restraint use by law enforcement to be addressed on a national level.”

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Why Yield Curve Control By The Fed Will Be Bullish For Gold

Why Yield Curve Control By The Fed Will Be Bullish For Gold

Tyler Durden

Tue, 06/16/2020 – 18:25

Submitted by Jan Nieuwenhuijs from Voima Insight.

On June 10, 2020, Fed Chair Jerome Powell stated he is considering “yield curve control.” Previously, in the 1940s, when the Federal Reserve controlled the yield curve, it created deeply negative real interest rates. If repeated today, this would cause the gold price to sky-rocket.

Due to the current economic crisis, the U.S. federal deficit is reaching “unprecedented” levels. Preliminary data suggests the federal deficit will be $4 trillion dollars this year, which is more than 15% of GDP. Although, as the crisis unravels, it’s likely these numbers will be even worse by year end. Throughout history, only in the First and Second World War deficits of this magnitude have occurred.

As GDP is declining and the federal deficit rising, the “public debt to GDP ratio” is escalating rapidly. According to usdebtclock.org, U.S. public debt to GDP is 130% at the time of writing. Just a few months ago this ratio printed 110%. In the chart below, you can see public debt to GDP rising at a pace comparable to when the Second World War broke out.

What many people don’t know is that at the start of World War II, the Federal Reserve implemented “yield curve control.” The central bank of Japan wasn’t a pioneer when it embarked managing the curve in 2016.

Starting in 1942, the Fed put a cap on yields of government bonds across the curve. From that moment on “the Fed effectively abdicated its responsibility for monetary policy despite its concern about inflation and focused instead on helping the Treasury finance the conflict” (Humpage, 2016).

The Fed and the Treasury negotiated to peg bills (3-month bonds) at 0.375%, and long-term bonds (25-years) at 2.5%. All other yields of government bonds were held constant as well. Initially, to establish the pegs, the Fed purchased large quantities of Treasuries (government bonds of all maturities), which made the monetary base double from 1942 until 1945.

From 1934 until 1940 the monetary base grew because the U.S. had devalued the dollar against gold in 1934, but sustained a peg in international markets at $35 an ounce. The Treasury bought thousands of tonnes of gold from around the world at the newly fixed price. The Fed printed the dollars to pay for the gold, and received gold certificates in return from the Treasury.

The growth in the monetary base, caused heightened inflation in consumer prices. With nominal interest rates held down, inflation peaked at 20% in March 1947. Real interest rates—calculated by subtracting inflation from nominal rates—dipped below -15%. The value of the principal of bonds significantly decreased.

You might wonder if U.S. citizens rushed to buy gold when real interest rates were negative in the 1940s. They didn’t, because private gold ownership was prohibited in America from 1933 until 1974 (and the dollar was still pegged to gold, albeit only in international markets).

After the war, deeply negative real interest rates and nominal GDP growth, caused public debt to GDP to decline, from 113% in 1945 to 64% in 1951 (see chart 1). Officially, the Fed continued to control the curve until 1951. Though, the aftermath lasted for another decade (Humpage, 2016).

Today, the U.S. government finds itself in a similar situation as in World War II. The federal deficit is problematic, and so is public debt to GDP. The Fed is already buying huge amounts of Treasuries and keeping rates down. The next step could be a commitment to fix the yield curve for an extended period. Curve management and inflation are one of the few options left for the U.S. to lower its debt burden. Another option is debt relief.

Deeply negative real interest rates nowadays, however, will cause the gold price to sky-rocket. U.S. real rates and the gold price have been (inversely) correlated for quite some years. It is thought that when real rates are falling, it becomes more attractive to own gold as it is a less risky asset than sovereign bonds (gold has no counterparty risk).

As can be seen in the above chart, when real rates decline, the gold price rises and vice versa. Currently, the real yield on a 10-year Treasury is -0.5%, and the gold price is $1,734 dollars. I don’t have a crystal ball and know what real rates will be in the future, but given the current economic environment in the U.S., real rates are likely to fall in the medium term, which is bullish for gold.

Further Reading:

  • Humpage, Owen F. 2016. “The Fed’s Yield-Curve-Control Policy.” Federal Reserve Bank of Cleveland Economic Commentary, Number 2016-15.
  • Kenneth D. Garbade, “How the Fed Managed theTreasury Yield Curve in the 1940s,” Federal Reserve Bank of New York Liberty Street Economics, April 6, 2020,

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Schumer Slams “Weak Tea” GOP Police Reform Plan, McConnell Says Dem Bill Is “Going Nowhere”

Schumer Slams “Weak Tea” GOP Police Reform Plan, McConnell Says Dem Bill Is “Going Nowhere”

Tyler Durden

Tue, 06/16/2020 – 18:10

Just hours after President Trump kicked off the federal police reform effort by signing an executive order implementing many of the common-ground reform proposals found in the separate plans developed by House Democrats  and Senate Republicans, Dems are already insisting that the Republican plan “doesn’t go far enough.”

So, rather than accepting a package of mutually agreeable reforms, Democrats are doubling down. The ink was barely dry on Trump’s EO when Democratic leader Chuck Schumer insisted that the Republican plan was too “narrow”, and not “inclusive” enough, according to CNN.

Senate Democratic leader Chuck Schumer warned on Tuesday that Senate Republicans “seem to be on a path towards taking a much, much narrower, less inclusive approach – that is wrong.”

A few minutes later, he confessed to reporters that he actually hadn’t read the Republican bill – apparently no Democrats have.

Schumer refused to say Tuesday if Democrats would seek to block the Scott plan from coming to the floor for a debate, saying “we haven’t even seen the bill yet, so it’s premature to comment,” while also declining say if he’s encouraging Democrats to avoid co-sponsoring the plan. Schumer, meanwhile, criticized President Donald Trump’s executive order on policing, calling it “weak tea.”

As we reported a few days back, there is broad consensus between the GOP and Democrats as more GOP lawmakers have expressed openness to make more substantial changes when it comes to rooting out officers with multiple complaints, while making it easier for the public to hold officers accountable.

Even Reuters acknowledged, citing the latest polling data, that many of the proposals found in the Democratic bill – including banning chokeholds (Trump’s EO effectively bribes PDs to bar the technique with federal money) and an explicit ban on racial profiling – are broadly popular among Democrats and Republicans. However, a few paragraphs later, the reporter notes that 39% of Americans supported proposals  to completely defund the police (still an astonishingly high number). To be sure, both Democratic nominee Joe Biden and Trump oppose complete defunding, which until very recently was an idea on the fringes of leftist politics. However, 76% of respondents said they supported moving some funding toward other social services for mental health and the homeless, as well as more training for officers. The GOP hasn’t released a full text of its bill, but moving funding was part of an abbreviated list of proposals from Senator Tim Scott, who is leading the effort to craft the bill.

Democrats released their bill last week. The 134-page tome goes further than Scott’s proposals on the issue in at least one important way: completely eliminating qualified immunity, something that Democrats have demanded, and many Republicans, including Scott and others quoted here would support completely eliminating the immunity and make police liable in incidents of police brutality.

Senate Majority Leader Mitch McConnell said Tuesday that the House Democrats’ bill would be a non-starter in the Senate, and he vowed to not even bring it up for a vote.

“The House version is going nowhere in the Senate,” McConnell told reporters. “It’s basically typical Democratic overreach to try to control everything in Washington. We have no interest in that,” he said.

Even McConnell has suggested that, once it’s released, the Republican plan might surprise some Democrats in the depth of its proposed reforms. Though lawmakers have told the press that they anticipate winning over the president, who is doubling down on his “law and order” image in a way that critics have warned is out of step with public opinion, could lead to obstacles.

The Republicans need 7 Democratic votes to block a filibuster and bring the plan to a vote (which would then presumably pass in a majority vote). With that, the GOP’s strategy comes into focus: McConnell is going to release a plan calling for substantial – but not radical – reform. Then moderates will face political pressure to put their dedication to reform above their political interests.

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Pat Buchanan: Cancel The White Men – And What’s Left?

Pat Buchanan: Cancel The White Men – And What’s Left?

Tyler Durden

Tue, 06/16/2020 – 17:55

Authored by Pat Buchanan via Buchanan.org,

“Can we all just get along?”

That was the plea of Rodney King after a Simi Valley jury failed to convict any of the four cops who beat him into submission after a 100-mile-an-hour chase on an LA freeway.

King’s plea came after the 1992 LA riots, the worst since the New York City draft riots in 1863 when Lincoln had to send in federal troops.

In the aftermath of today’s protests and riots after the killing of George Floyd in Minneapolis, we hear similar calls. President Donald Trump must “reach out” and “unify the nation.”

But how?

Many of these calls for unity come from the same elites who are all-in on tearing us apart by pulling down statues of the famous men of American history whom they most detest.

A second war on the Confederacy is underway, to disgrace and dishonor all who fought for Southern independence in the war of 1861-65. A second Reconstruction is being readied.

The St. Andrew’s Cross, the battle flag of the Confederate army, though seen as a banner of heroism and honor to millions, is henceforth to be treated like the Nazi swastika. It has been already been banned at Nascar races, where it has been widely popular.

Liberals will fight for the right of Marxist radicals to burn the American flag to show their hatred of it but cannot tolerate working folks flying the battle flag of the Confederacy to show their love of it.

A second front in the campaign to cancel history is the renaming of U.S. army bases in Southern states that bear the names of Confederate generals, such as Forts Benning and Bragg. Trump has pledged to veto any defense appropriation bill that contains such a provision.

Third is the drive led by Nancy Pelosi and her allies to remove statues in the Capitol of any of those men of “violent bigotry” who were connected to the Confederacy.

First among them is General Robert E. Lee.

Gen. David Petraeus has put succinctly the crime of which Lee is guilty. Though “West Point honors Robert E. Lee with a gate, a road, an entire housing area, and a barracks,” writes Petraeus, “Lee… committed treason.”

The goal here is to impose the one-sided view of American history that is now ascendant, as official truth — that the cause of Southern secession was unlike the cause of American secession from Britain. It was an act of treason rooted in the ideology of white supremacy.

To have that sole acceptable view predominate, our elites believe they must remove from public display the statues of any associated with the cause of Southern independence and stigmatize them all as traitors.

They have, however, a problem: Where do the elites stop when the radicals demand more?

If support of slavery disqualifies one from the company of decent men, does it disqualify George Washington, who owned slaves his entire life? What Washington fought for, independence, was what Lee fought for.

Lee did not challenge Lincoln’s election. He did not seek to overthrow the government Lincoln headed. He resigned from the U.S. army to go home and defend the people among whom he had been raised from an invasion to force-march them back into a Union the state’s chosen rulers had voted to leave.

Not only does our national capital, Washington, bear the name of a lifelong slave owner, so does the capital of Missouri, Jefferson City. So does the capital of Mississippi, Jackson. So does the capital of Wisconsin, Madison. The capital of Ohio is Columbus. The capital of South Carolina is Columbia. Both are named for now-vilified Christopher Columbus whose statue still stands outside D.C.’s Union Station.

None of these men appears, from how they lived their lives, to have shared modernity’s belief in democracy, diversity or social equality. Yet, it was they who cobbled together the United States of America.

Washington led us to independence and ownership of all the land from the Atlantic to the Mississippi. Jefferson negotiated the Louisiana Purchase, doubling the size of the U.S. Andrew Jackson added Florida. James K. Polk added the Southwest and California. Slave owner Sam Houston won Texas’ War of independence and brought his Republic of Texas into the Union in 1845.

Two of the three greatest Senate statesmen of the 19th century, Henry Clay of Kentucky and John Calhoun of South Carolina, were slave owners. Both have statues in the Capitol. Do they go, too?

The newest bridge over the Potomac, like the premier dam in the TVA, is named for Woodrow Wilson, who resegregated the government.

These were among the decisive figures of American history. If all are dishonored, with their statues pulled down and their names taken off cities, counties, towns, rivers, canals, bridges, buildings, highways, roads, streets and dams, then what is left?

Detest all those white men if you will, but they were the ones who created the nation we inherited.

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Google Demonetizes Zero Hedge

Google Demonetizes Zero Hedge

Tyler Durden

Tue, 06/16/2020 – 17:41

As you may have read on NBC, Google has decided to suspend ad hosting on the “far-right” Zero Hedge (which apparently can be anything from “batshit insane Austrian school blog” to Russian propaganda or framed in any other way that serves the agenda of those who disagree with our views – which apparently these days is a lot of people) along with The Federalist, a decision that would have a materially adverse impact for both websites. The reason presented to us for this decision is far more mundane than what has been disclosed by NBC: we are currently appealing it, and expect to remedy it.

That said, we were surprised by the framing of the suspension by the NBC article, which disturbingly appears to be another attempt at activist targeting of inconvenient media outlets, especially since the core argument presented by the NBC employee is different than what Google actually has said. In fact, half the NBC article just happens to be dead wrong.

It is also notable, the two articles that are referenced in the NBC article – which in turn is based on a complaint by some self-appointed arbiter of free speech, the UK-based liberal Center for Countering Digital Hate  – were not ours, but were contributor op-eds by third parties (here  and here) one of which is from 2016. Do we now live in a time when ad platforms will suspend, say, the New York Times for publishing highly controversial Op-Eds?

We were also surprised that the NBC journalist activist who wrote the inaccurate article, Adele-Momoko Fraser, deleted a tweet in which she admits to actively collaborating with “Stop Funding Fake News” and the Center for Countering Digital Hate.

After deleting her original tweet, Fraser retweeted it without the #BlackLivesMatter hashtag. Why?

It is also notable that the reactions so far have been a near-unanimous condemnation of a journalist using her platform (the same one which killed Ronan Farrow’s Harvey Weinstein scoop) to silence competitors she and/or her employer disagrees with.

Even more disturbing, shortly after publishing its rushed hitpiece, NBC proceeded to do stealth edits based on actual feedback from Google, with the result a mess.

In any case, we hope to resolve this matter and continue doing what we do best: presenting you, our readers, with the truth no matter how inconvenient it may be.

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Trump Admin Sues Bolton To Block Book Publication

Trump Admin Sues Bolton To Block Book Publication

Tyler Durden

Tue, 06/16/2020 – 17:40

Just as President Trump said would happen yesterday, the U.S. government has sued Trump’s former national security adviser John Bolton to block the publication of his so-called tell-all book which claims the president was willing to endanger the nation in order to be re-elected.

As we previously detailed, Bolton served under Trump as the U.S. national security adviser from April 2018 to September 2019.

His book, “The Room Where It Happened: A White House Memoir,” which was initially set to be published earlier this year, is currently scheduled to be released next Tuesday.

According to a news release from the book’s publisher, the book claims that  “Trump’s Ukraine-like transgressions existed across the full range of his foreign policy — and Bolton documents exactly what those were.”

In the epilogue of the memoir, Bolton reportedly alleges Trump’s actions towards his new book were, at times, “constitutionally impermissible” and that the president has tried multiple times to delay it from moving to print.

Last week, per the New York Times, the White House attempted to slow its publication, arguing the book contained classified information and could present a security threat.

“I will consider every conversation with me as president highly classified. So that would mean if he wrote a book and if the book gets out, he’s broken the law and I would think he would have criminal problems,” Trump continued threateningly.

And now, as Axios reports, the Justice Department filed a lawsuit in federal court on Tuesday seeking to block publication of the book on June 23, claiming that Bolton has failed to complete a pre-publication review for classified information.

The United States is not seeking to censor any legitimate aspect of Defendant’s manuscript; it merely seeks an order requiring Defendant to complete the prepublication review process and to take all steps necessary to ensure that only a manuscript that has been officially authorized through that process—and is thus free of classified information—is disseminated publicly.

Given that Defendant has already taken steps to disclose or publish the manuscript to unauthorized persons without prior written authorization, the United States also seeks an order establishing a constructive trust on any profits obtained from the disclosure or dissemination of The Room Where it Happened, particularly if Defendant refuses to complete the prepublication review process and obtain the required prior written authorization before proceeding with publishing the book.

– Justice Department

Bolton’s lawyer claims that his client has already undergone four months of prepublication review, and that the White House has purposely stalled the process as a “transparent attempt to use national security as a pretext to censor Mr. Bolton.”

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Senator Hawley: Bostock “represents the end of the conservative legal movement”

Senator Josh Hawley of Missouri delivered an impassioned and important speech on textualism, originalism, and the conservative legal movement.

Here is an excerpt:

This decision, this Bostock case and the majority who wrote it, it represents the end of something. It represents the end of the conservative legal movement or the conservative legal project as we know it. After Bostock, that effort as we know it, as it has existed up to now, it’s over. And I say this because if textualism and originalism gives you this decision, if you can invoke textualism and originalism in order to reach a decision, an outcome that fundamentally changes the scope and meaning and application of statutory law, then textualism and originalism and all of those phrases don’t mean much at all. If those are the things we were fighting for, that’s what I thought we were fighting for, those of us who call ourselves legal conservatives, if we’ve been fighting for originalism and textualism and this is the result of that, then I have to say it turns out we haven’t been fighting for very much or maybe we’ve been fighting for quite a lot but it’s been exactly the opposite of what we thought we were fighting for. Now, this is a very significant decision and it marks a turning point for every conservative and it marks a turning point for the legal conservative movement.

You should watch the entire speech.

Hawley expressed many of concerns I have heard over the past 24 hours since Blue Monday (my nickname for Monday, June 15 at the Supreme Court). These remarks do not come from an outsider, but from an insider. Both Josh Hawley, and his wife Erin, were formerly law professors. (We all filed an amicus brief in support of the Little Sisters of the Poor). They both clerked for Chief Justice Roberts, and were regular at FedSoc events. Hawley brings a lot of credibility to this debate.

Hawley’s words need to be carefully considered.

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Supreme Court’s LGBT Discrimination Decision Revives Interest in the Federal Equality Act

Monday’s Supreme Court ruling banning workplace discrimination against gay and transgender employees focused on Title VII of the Civil Rights Act of 1964.

But the textualist justification offered in Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County—that discrimination on the basis of sexual orientation or gender identity is fundamentally “sex discrimination”—will almost certainly be applied to many other federal statutes and regulations. In his Bostock dissent, Justice Samuel Alito attached a list of dozens of other federal statutes that prohibit sex discrimination, all of which will now likely be subject to new review. Writing at The Volokh Conspiracy, Southern Methodist University law professor Dale Carpenter dubbed those federal statutes a “to-do list for Lambda Legal.”

Some lawmakers hope to avoid using the courts to resolve every conflict over such laws by enacting the Equality Act, which made it through the House of Representatives last summer, but currently remains in limbo in the Republican-controlled Senate.

Otherwise known as H.R. 5, the Equality Act would do legislatively for multiple federal statutes what the Supreme Court did via legal interpretation for Title VII—include sexual orientation and gender identity in the category of sex discrimination. The bill would apply to other sections of the 1964 Civil Rights Act, to the Fair Housing Act, to the Equal Credit Opportunity Act, and to federal protections against sex discrimination in jury service.

After yesterday’s ruling, a number of activist organizations and lawmakers who support the Equality Act renewed their campaign for the bill’s passage.

“Right now, millions of LGBTQ people can still legally be denied access to housing, education, federal funding, public accommodations, credit, and the opportunity to serve on a jury,” wrote Rep. David Cicilline (D–Rhode Island). He first introduced the Equality Act in the House.

“The House passed the Equality Act last year to prohibit these forms of discrimination. The bill has been sitting on Mitch McConnell’s desk since then. In the wake of this momentous decision, he should finally allow the Senate to vote on the Equality Act,” Cicilline declared.

In reality, McConnell was probably doing Cicilline a favor by keeping it from a vote. In the House, only eight Republicans voted for the act. It seems unlikely to pass the Senate.

The Equality Act doesn’t just expand the categories of people covered by federal anti-discrimination law. The Equality Act significantly expands on the sort of discrimination that federal authorities can punish.

For example, the federal protections against discrimination in places of public accommodation contained in the 1964 Civil Rights Act were carefully tailored to cover businesses and services that, at the time, were systematically discriminating against minorities, such as hotels, restaurants, entertainment venues, and gas stations. The law was not designed to empower the Department of Justice to respond to every incident in which a business allegedly discriminated against somebody.

The Equality Act seeks to go far beyond that 1964 law, prohibiting discrimination in “any establishment that provides a good, service, or program, including a store, shopping center, online retailer or service provider, salon, bank, gas station, food bank, service or care center, shelter, travel agency, or funeral parlor, or establishment that provides health care, accounting, or legal services,” as well as any transportation service. In effect, the Equality Act treats vast amounts of commerce and trade as public accommodations and subjects that commerce and trade to sweeping federal law.

To be clear, the Equality Act is not just about LGBT discrimination. It is a power grab that would give the Justice Department new latitude to intervene in all sorts of cases, even in states where equally broad public accommodation laws are on the books. It’s practically a jobs program for federal prosecutors.

The Equality Act also forbids businesses from using the Religious Freedom Restoration Act of 1993 as a defense. In other words, if the bill is passed, and a gay person wants to buy a same-sex wedding cake from a religious baker that doesn’t want to bake it for him, the message is clear: Bake the damn cake or the feds may come calling.

I don’t dismiss the fact that such discrimination is happening to some gay people. But this is not the 1960s. If you’re a gay couple getting married, somebody else will bake the damned cake for you and will be happy to take your money.

Rep. Justin Amash (L–Mich.), who tweeted positively about the Supreme Court’s Bostock decision this week, voted against the Equality Act last year. He explained that he objected to the broadness and vagueness of the law and said the text “raised First Amendment problems.” He added that was not opposed to LGBT equality or adding LGBT people to existing civil rights law.

There is a competing bill introduced by Republicans that would add LGBT protections to federal anti-discrimination law while preserving exemptions for religious organizations and certain small businesses whose owners are religious. The Fairness for All Act is a very good piece of compromise legislation that will likely go nowhere because nobody is going to be running for election in 2020 promising any compromises. The bill, introduced by Rep. Chris Stewart (R–Utah), has been attacked by social conservatives for going too far and by gay groups for not going far enough.

America’s shifting culture significantly favors gay and transgender inclusion more and more each passing day. There is no real need to create additional punitive mechanisms to prevent discrimination when we have so many other ways to create change. People who truly support scaling back the power and scope of punitive government should consider the idea that even on this issue, there’s no need to introduce new ways to punish Americans.

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The FDA Just Approved the First Video Game for Prescription Use

Welcome to the future, folks: The Food and Drug Administration (FDA) just approved the first video game for prescription use. 

Doctors can now legally prescribe playing the game EndeavorRX to children between the ages of eight and 12 to treat attention deficit hyperactive disorder (ADHD). 

Studies have long found that playing video games can have therapeutic effects, often to treat physical pain by distracting players from what hurts, but also to treat anxiety and depression. Thinking about playing games, it turns out, often means not thinking about whatever is making you upset.  

But despite the evidence, game makers and medical entrepreneurs have so far been prohibited from marketing video games as having medical benefits. Just as with nutritional supplements and medical devices, any time a company wants to specifically advertise medical benefits for its products, those claims have to be evaluated and approved by the FDA. 

In this case, the FDA based its approval on “data from multiple studies in more than 600 children, including studies that evaluated, among other things, whether participants demonstrated improvements in attention function, as measured by the Test of Variables of Attention (TOVA), academic performance measures, and other assessment tools,” according to an agency press release. One randomized study, published in The Lancet Digital Health, showed that about half of children diagnosed with ADHD had longer attention spans after playing the game for a month, an effect that improved after two months. 

The game isn’t designed as a full-on replacement to traditional ADHD treatments, but as an accompaniment. Akili, the company behind the game, has allowed limited enrollment for some families, but has yet to fully launch the game. The company does not currently have a launch timeline, but says the game will be available “soon.” 

As The Verge reported in 2017, Akili has been working toward the development of therapeutic video games for years, but this is the first time any game has received federal approval; the company’s press release brags that the clearance “creates a new class of digital therapeutics,” that “marks the culmination of nearly a decade of research and development.” 

The advent of digital medicine and therapeutic gaming is a welcome one, and it suggests a growing shift in the cultural reputation of computer games, which have long been popularly viewed as time-wasters more likely to cause mental health issues than treat them: Earlier this year, the World Health Organization, which last year officially classified excessive gaming as a disorder, encouraged people to stay home and play video games during COVID-19 lockdowns. 

Still, the years upon years Akili put into the creation of the game serves as a reminder of what a barrier the FDA approval process can be to innovation, and how much of what the agency does amounts to regulation of commercial speech. The agency wasn’t approving the game itself (game developers release games without FDA approval all the time) but rather the claims of medical benefit the company made about the game, clearing doctors to prescribe it for mental health. 

In any case, the agency’s approval means that we are now entering a world in which a scenario that countless children have dreamed of is finally possible, in which a kid can truthfully say, “Sorry I’m so hyper, mom: I’ll have to go play video games. Doctor’s orders.”

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Senator Hawley: Bostock “represents the end of the conservative legal movement”

Senator Josh Hawley of Missouri delivered an impassioned and important speech on textualism, originalism, and the conservative legal movement.

Here is an excerpt:

This decision, this Bostock case and the majority who wrote it, it represents the end of something. It represents the end of the conservative legal movement or the conservative legal project as we know it. After Bostock, that effort as we know it, as it has existed up to now, it’s over. And I say this because if textualism and originalism gives you this decision, if you can invoke textualism and originalism in order to reach a decision, an outcome that fundamentally changes the scope and meaning and application of statutory law, then textualism and originalism and all of those phrases don’t mean much at all. If those are the things we were fighting for, that’s what I thought we were fighting for, those of us who call ourselves legal conservatives, if we’ve been fighting for originalism and textualism and this is the result of that, then I have to say it turns out we haven’t been fighting for very much or maybe we’ve been fighting for quite a lot but it’s been exactly the opposite of what we thought we were fighting for. Now, this is a very significant decision and it marks a turning point for every conservative and it marks a turning point for the legal conservative movement.

You should watch the entire speech.

Hawley expressed many of concerns I have heard over the past 24 hours since Blue Monday (my nickname for Monday, June 15 at the Supreme Court). These remarks do not come from an outsider, but from an insider. Both Josh Hawley, and his wife Erin, were formerly law professors. (We all filed an amicus brief in support of the Little Sisters of the Poor). They both clerked for Chief Justice Roberts, and were regular at FedSoc events. Hawley brings a lot of credibility to this debate.

Hawley’s words need to be carefully considered.

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