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Is More Presidential Power Necessary in the Modern World? A Soho Forum Debate


trump

Do U.S. presidents need fast-track authority or should their power be sharply curtailed? In order to save our democracy, says Stanford University political scientist Terry Moe, we have to make the U.S. government faster, more efficient, and more effective—and we can do that by expanding the power of the executive branch to use “fast-track” authority to approve all types of legislation. Moe, the co-author of Presidents, Populism, and the Crisis of Democracy, wants Congress to have the power to approve or deny these laws through an “up or down” vote (but not to add amendments or filibuster their passage).

The Cato Institute’s Gene Healy says that non-libertarians of all political persuasions suffer from a “dangerous devotion” to the “boundless nature of presidential responsibility.” Healy, who’s the author of The Cult of the Presidency, says that instead of giving the executive branch more legislative authority, presidential powers must be brought back to their constitutional limits.

At a Reason-sponsored Soho Forum debate held on March 17, 2021, and moderated by Soho Forum Director Gene Epstein, Terry Moe and Gene Healy went head-to-head on this issue. It was an Oxford-style debate, meaning the winner is the person who moves the most people in his direction.

Narrated by Nick Gillespie. Audio production by Ian Keyser.

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Should U.S. Presidents Have Fast-Track Authority to Get Things Done?


8109654_THUMBNAIL

Do U.S. presidents need a fast-track or should their power by sharply curtailed? Stanford Political Scientist Terry Moe, says to save our democracy, we have to make the U.S. government faster, more efficient, and more effective — and we can do that by expanding the power of the executive branch to use “fast-track” authority to approve all types of legislation. Moe, who’s the author of Presidents, Populism, and the Crisis of Democracy, wants Congress to have the power to approve or deny these laws through an “up or down” vote but not to add amendments or filibuster their passage.

The Cato Institute’s Gene Healy says that non-libertarians of all political persuasions suffer from a “dangerous devotion” to the “boundless nature of presidential responsibility.” Healy, who’s the author of The Cult of the Presidency, says that instead of giving the executive branch more legislative authority, presidential powers must be brought back to their Constitutional limits.

At a Reason-sponsored Soho Forum debate held on March 17, 2020, Terry Moe and Gene Healy went head-to-head on this issue in a recent virtual Soho Forum debate, moderated by Soho Forum Director, Gene Epstein. It was an Oxford-style debate, meaning the winner is the person who moves the most people in their direction.

Narrated by Nick Gillespie. Edited by Ian Keyser and Regan Taylor.

Music: “Still Life,” by ANBR

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Elizabeth Warren Wants To Break Up Amazon So It’s ‘Not Powerful Enough To Heckle Senators With Snotty Tweets’


sipaphotoseleven488950

Sen. Elizabeth Warren (D–Mass.) accused Amazon of not paying its fair share in taxes during a Senate Finance Committee hearing on Thursday, which prompted the company to respond that it merely follows the tax laws created by Congress.

“If you don’t like the laws you’ve created, by all means, change them,” reads a tweet from Amazon’s account.

Warren did not appreciate the remark:

This is a classic example of saying the quiet part out loud. Warren inadvertently revealed that her crusade to hurt major tech companies is partly driven by personal animus: She wants to reduce the power of corporations so that they are no longer “powerful enough to heckle senators.”

In fact, everyone enjoys the right to “heckle senators,” if by “heckle,” we mean engage in constitutionally-protected political expression. Senators are elected representatives: They are supposed to be accountable to their constituents and the public more broadly. It is not “cancel culture” when people criticize Rep. Marjorie Taylor Greene (R–Ga.) for her previous enthusiasm for QAnon; similarly, there’s nothing sinister or harassing about Amazon clapping back at Warren.

On the crux of the matter, Warren is also wrong. It’s not true that Amazon pays “close to nothing in taxes.” It paid $162 million in federal taxes last year, and is on the hook for nearly a billion more. Amazon does take advantage of several pro-business policies that let it reduce its total tax liability: investing in research and development, tax credits and deductions, etc. The U.S. tax code is extraordinarily complicated, and it’s not surprising that massive corporations are able to find creative ways to hold on to more of their profits.

As Amazon pointed out, it is within Congress’ power to simplify the law. Better yet, local governments could cease the practice of bribing companies to get them to headquarter in specific cities. Neither of these options necessitates breaking up Amazon, which remains the second-most-trusted entity in the country after the military. Congress, the institution to which Warren belongs, has been ranked the least trusted institution for 14 straight years.

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Should U.S. Presidents Have Fast-Track Authority to Get Things Done?


8109654_THUMBNAIL

Do U.S. presidents need a fast-track or should their power by sharply curtailed? Stanford Political Scientist Terry Moe, says to save our democracy, we have to make the U.S. government faster, more efficient, and more effective — and we can do that by expanding the power of the executive branch to use “fast-track” authority to approve all types of legislation. Moe, who’s the author of Presidents, Populism, and the Crisis of Democracy, wants Congress to have the power to approve or deny these laws through an “up or down” vote but not to add amendments or filibuster their passage.

The Cato Institute’s Gene Healy says that non-libertarians of all political persuasions suffer from a “dangerous devotion” to the “boundless nature of presidential responsibility.” Healy, who’s the author of The Cult of the Presidency, says that instead of giving the executive branch more legislative authority, presidential powers must be brought back to their Constitutional limits.

At a Reason-sponsored Soho Forum debate held on March 17, 2020, Terry Moe and Gene Healy went head-to-head on this issue in a recent virtual Soho Forum debate, moderated by Soho Forum Director, Gene Epstein. It was an Oxford-style debate, meaning the winner is the person who moves the most people in their direction.

Narrated by Nick Gillespie. Edited by Ian Keyser and Regan Taylor.

Music: “Still Life,” by ANBR

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The Snyder Cut of Justice League Is an Internet Fan Theory Come to Life


snyder-cut-justice

One way to look at the emergence of the so-called Snyder Cut—director Zack Snyder’s personally approved four-hour version of his superhero epic Justice League, which hit HBO Max last week—is as a victory for fans and fan culture. 

The film, which initially hit theaters (remember those) in 2016, had reportedly been bogged down by production trouble, with studio executives apparently worried by the reported three-hour length and the grim, grandiose aesthetic of director Zack Snyder. Justice League was the first movie to feature a full-fledged team-up between five members of the DC Comics universe, and was, in theory, DC’s answer to the success of Marvel’s comic book–derived movies, in particular the studio’s Avengers franchise. But Marvel was scoring hit after hit with a light, quippy, almost sitcom-like approach to superheroes. So after Snyder departed the production due to a personal tragedy, it wasn’t much of a surprise when the studio brought on none other than Joss Whedon, the writer and director of the first two Avengers films, to rework the DC team-up film—with a mandate to make it lighter, more self-aware, and shorter. 

What emerged was certainly shorter, coming in at just under two hours. But it was also derided—rightly, in my view—by fans and critics alike as slapdash and hectic, an aesthetic travesty marred by shoddy effects work and pedestrian production values. It was, in internet parlance, a dumpster fire. 

Typically, the only response to this sort of blockbuster disaster would have been to move on and accept that the damage had been done. Once a movie has been made, it cannot be unmade, or remade.

But word spread that Snyder had saved a version of his own, far longer cut on his laptop—and over time, fans began to clamor to see what the director had intended, backing the #ReleaseTheSnyderCut hashtag on Twitter and elsewhere. 

Snyder, it’s worth noting, is not exactly beloved by the film and culture writing establishment, and so there were social media clashes and think pieces and mean tweets and more think pieces and then even more tweets and probably some more think pieces, because that’s how this sort of flame war tends to proceed. The whole thing ended up being coded as a kind of struggle between supposedly toxic implicitly right-wing fans who adore Snyder’s simple-minded brutality and more enlightened critics who, in this narrative, don’t.

More often than not, this debate was tiresome, as these sorts of internet skirmishes tend to be, a debate about political symbols that too often overlooked the actual film and filmmaker in question. (Admittedly, this was somewhat inevitable since until last week no one in the public could actually see Snyder’s film.) But eventually, Snyder himself joined the campaign, and the studio agreed to give the director—who had apparently been shielded from ever seeing the theatrical version—a reported $70 million to rework the film according to his own specifications. The decision was part fan service, part streaming platform stunt, a bid to draw in viewers to a new platform that needed signature content. 

Snyder’s fans had spent years clamoring for the release of an alternate cut of a movie, but in many ways their movement resembled a modern political activist cause: They had waged a ground-up, internet-era activist campaign, built on a hashtag, intended to force those in power to reverse course on what they perceived as a terrible decision. In this way, at least, there was something deeply political, or at least politics-adjacent, about the Snyder Cut drive. And somewhat improbably, the fans won. 

One reason why they won is because of the shifting dynamic between fans and studios, in which studios, inundated by online feedback from highly motivated fan factions, shift plans accordingly; the internet has become a kind of always-on focus group that, for better and for worse, allows both politicians and purveyors of popular culture to constantly test and tweak their messages accordingly.

Another reason, however, is that the medium itself has changed. The original Justice League was intended primarily as a theatrical experience, and thus it was made to conform to the expectations and traditions of theatrically exhibited features—which is one of the reasons it was cut so short. 

But Zack Snyder’s Justice League, in all of its four-hour glory, is a streaming experience through and through, one that partakes in the opportunities for expanded length and episodic, serial storytelling that work best on streaming. 

In its own way, it is perhaps the ultimate example of the streaming experience, the most fully realized product of the streaming era: While it’s at least possible to imagine even the most niche, specialized streaming series running on traditional cable networks, something like the Snyder Cut would have been unthinkable anywhere in the TV landscape of 10 years ago. Perhaps it would have found a release on DVD, where director’s cuts and extended editions were released for a while, but otherwise there simply would have been no home for it. There was no format that would make space for its unwieldy excess. 

And that’s why I think it’s not enough to call the release of Zack Snyder’s Justice League a victory for fans. It is, but it’s also a product of a shifting format, a medium in flux, that is evolving not only to give us more material—via what we have come to know as Peak TV—but different kinds of material, blending the features of TV and feature filmmaking and miniseries into something that, in the case of the Snyder Cut, doesn’t quite fit neatly into any category. 

Snyder’s Justice League transforms the truly awful two-hour superhero movie that Whedon slapped together after Snyder’s departure into something that is maybe not quite good—or at least not to my personal taste—but is nonetheless quite fascinating. Because what you get to see is the sprawl and scale of a director’s vision for a big-budget blockbuster in a maximalist way that just doesn’t ever make it to the big screen, and that the traditional feature format couldn’t really contain. It’s basically an internet fan theory come to life. The internet, and the economics of streaming, birthed a collective online fantasy into watchable reality.

Two years ago, I wrote an essay about the evolution of TV formats and platforms titled, “Nobody Knows What Television Is Anymore.” But maybe—just maybe—this is it?

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Elizabeth Warren Wants To Break Up Amazon So It’s ‘Not Powerful Enough To Heckle Senators With Snotty Tweets’


sipaphotoseleven488950

Sen. Elizabeth Warren (D–Mass.) accused Amazon of not paying its fair share in taxes during a Senate Finance Committee hearing on Thursday, which prompted the company to respond that it merely follows the tax laws created by Congress.

“If you don’t like the laws you’ve created, by all means, change them,” reads a tweet from Amazon’s account.

Warren did not appreciate the remark:

This is a classic example of saying the quiet part out loud. Warren inadvertently revealed that her crusade to hurt major tech companies is partly driven by personal animus: She wants to reduce the power of corporations so that they are no longer “powerful enough to heckle senators.”

In fact, everyone enjoys the right to “heckle senators,” if by “heckle,” we mean engage in constitutionally-protected political expression. Senators are elected representatives: They are supposed to be accountable to their constituents and the public more broadly. It is not “cancel culture” when people criticize Rep. Marjorie Taylor Greene (R–Ga.) for her previous enthusiasm for QAnon; similarly, there’s nothing sinister or harassing about Amazon clapping back at Warren.

On the crux of the matter, Warren is also wrong. It’s not true that Amazon pays “close to nothing in taxes.” It paid $162 million in federal taxes last year, and is on the hook for nearly a billion more. Amazon does take advantage of several pro-business policies that let it reduce its total tax liability: investing in research and development, tax credits and deductions, etc. The U.S. tax code is extraordinarily complicated, and it’s not surprising that massive corporations are able to find creative ways to hold on to more of their profits.

As Amazon pointed out, it is within Congress’ power to simplify the law. Better yet, local governments could cease the practice of bribing companies to get them to headquarter in specific cities. Neither of these options necessitates breaking up Amazon, which remains the second-most-trusted entity in the country after the military. Congress, the institution to which Warren belongs, has been ranked the least trusted institution for 14 straight years.

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The Snyder Cut of Justice League Is an Internet Fan Theory Come to Life


snyder-cut-justice

One way to look at the emergence of the so-called Snyder Cut—director Zack Snyder’s personally approved four-hour version of his superhero epic Justice League, which hit HBO Max last week—is as a victory for fans and fan culture. 

The film, which initially hit theaters (remember those) in 2016, had reportedly been bogged down by production trouble, with studio executives apparently worried by the reported three-hour length and the grim, grandiose aesthetic of director Zack Snyder. Justice League was the first movie to feature a full-fledged team-up between five members of the DC Comics universe, and was, in theory, DC’s answer to the success of Marvel’s comic book–derived movies, in particular the studio’s Avengers franchise. But Marvel was scoring hit after hit with a light, quippy, almost sitcom-like approach to superheroes. So after Snyder departed the production due to a personal tragedy, it wasn’t much of a surprise when the studio brought on none other than Joss Whedon, the writer and director of the first two Avengers films, to rework the DC team-up film—with a mandate to make it lighter, more self-aware, and shorter. 

What emerged was certainly shorter, coming in at just under two hours. But it was also derided—rightly, in my view—by fans and critics alike as slapdash and hectic, an aesthetic travesty marred by shoddy effects work and pedestrian production values. It was, in internet parlance, a dumpster fire. 

Typically, the only response to this sort of blockbuster disaster would have been to move on and accept that the damage had been done. Once a movie has been made, it cannot be unmade, or remade.

But word spread that Snyder had saved a version of his own, far longer cut on his laptop—and over time, fans began to clamor to see what the director had intended, backing the #ReleaseTheSnyderCut hashtag on Twitter and elsewhere. 

Snyder, it’s worth noting, is not exactly beloved by the film and culture writing establishment, and so there were social media clashes and think pieces and mean tweets and more think pieces and then even more tweets and probably some more think pieces, because that’s how this sort of flame war tends to proceed. The whole thing ended up being coded as a kind of struggle between supposedly toxic implicitly right-wing fans who adore Snyder’s simple-minded brutality and more enlightened critics who, in this narrative, don’t.

More often than not, this debate was tiresome, as these sorts of internet skirmishes tend to be, a debate about political symbols that too often overlooked the actual film and filmmaker in question. (Admittedly, this was somewhat inevitable since until last week no one in the public could actually see Snyder’s film.) But eventually, Snyder himself joined the campaign, and the studio agreed to give the director—who had apparently been shielded from ever seeing the theatrical version—a reported $70 million to rework the film according to his own specifications. The decision was part fan service, part streaming platform stunt, a bid to draw in viewers to a new platform that needed signature content. 

Snyder’s fans had spent years clamoring for the release of an alternate cut of a movie, but in many ways their movement resembled a modern political activist cause: They had waged a ground-up, internet-era activist campaign, built on a hashtag, intended to force those in power to reverse course on what they perceived as a terrible decision. In this way, at least, there was something deeply political, or at least politics-adjacent, about the Snyder Cut drive. And somewhat improbably, the fans won. 

One reason why they won is because of the shifting dynamic between fans and studios, in which studios, inundated by online feedback from highly motivated fan factions, shift plans accordingly; the internet has become a kind of always-on focus group that, for better and for worse, allows both politicians and purveyors of popular culture to constantly test and tweak their messages accordingly.

Another reason, however, is that the medium itself has changed. The original Justice League was intended primarily as a theatrical experience, and thus it was made to conform to the expectations and traditions of theatrically exhibited features—which is one of the reasons it was cut so short. 

But Zack Snyder’s Justice League, in all of its four-hour glory, is a streaming experience through and through, one that partakes in the opportunities for expanded length and episodic, serial storytelling that work best on streaming. 

In its own way, it is perhaps the ultimate example of the streaming experience, the most fully realized product of the streaming era: While it’s at least possible to imagine even the most niche, specialized streaming series running on traditional cable networks, something like the Snyder Cut would have been unthinkable anywhere in the TV landscape of 10 years ago. Perhaps it would have found a release on DVD, where director’s cuts and extended editions were released for a while, but otherwise there simply would have been no home for it. There was no format that would make space for its unwieldy excess. 

And that’s why I think it’s not enough to call the release of Zack Snyder’s Justice League a victory for fans. It is, but it’s also a product of a shifting format, a medium in flux, that is evolving not only to give us more material—via what we have come to know as Peak TV—but different kinds of material, blending the features of TV and feature filmmaking and miniseries into something that, in the case of the Snyder Cut, doesn’t quite fit neatly into any category. 

Snyder’s Justice League transforms the truly awful two-hour superhero movie that Whedon slapped together after Snyder’s departure into something that is maybe not quite good—or at least not to my personal taste—but is nonetheless quite fascinating. Because what you get to see is the sprawl and scale of a director’s vision for a big-budget blockbuster in a maximalist way that just doesn’t ever make it to the big screen, and that the traditional feature format couldn’t really contain. It’s basically an internet fan theory come to life. The internet, and the economics of streaming, birthed a collective online fantasy into watchable reality.

Two years ago, I wrote an essay about the evolution of TV formats and platforms titled, “Nobody Knows What Television Is Anymore.” But maybe—just maybe—this is it?

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Waiting for the other International Shoe to Drop

The vote in Ford Motor Co. v. Montana Eighth Judicial Dist. was 5-3. Justice Kagan wrote the majority opinion, which was joined by the Chief Justice, and Justices Breyer, Sotomayor, and Kavanaugh. (Justice Barrett did not participate). Justice Alito concurred in the judgment. He suggested that the majority opinion put a new “gloss” on personal jurisdiction caselaw. Justice Gorsuch wrote a separate concurrence, which was joined by Justice Thomas. Justice Gorsuch wrote a very Gorsuch opinion: he cast doubt on International Shoe Co. v. Washington (1945). Yes, the canonical case that every 1L struggles with.

Justice Gorsuch begins his analysis with a throwback to Pennoyer v. Neff (1878).

Before International Shoe, it seems due process was usually understood to guarantee that only a court of competent jurisdiction could deprive a defendant of his life, liberty, or property. In turn, a court’s competency normally depended on the defendant’s presence in, or consent to, the sovereign’s jurisdiction. But once a plaintiff was able to “tag” the defendant with process in the jurisdiction, that State’s courts were generally thought competent to render judgment on any claim against the defendant, whether it involved events inside or outside the State. Pennoyer v. Neff, 95 U. S. 714, 733 (1878).

In a footnote, Justice Gorsuch favorably cites the work of co-blogger Steve Sachs, who writes that Pennoyer was right. And in the same footnote, Gorsuch cites Justice Robert Jackson. Pretty good company to be in.

Recent scholarship, for example, contends Pennoyer‘s territorial account of sovereign power is mostly right, but the rules it embodies are not “fixed in constitutional amber”—that is, Congress might be able to change them. Sachs, Pennoyer Was Right, 95 Texas L. Rev. 1249, 1255 (2017). Others suggest that fights over personal jurisdiction would be more sensibly waged under the Full Faith and Credit Clause. Jackson, Full Faith and Credit—The Lawyer’s Clause of the Constitution, 45 Colum. L. Rev. 1, 3 (1945). Whether these theories are right or wrong, they at least seek to answer the right question—what the Constitution as originally understood requires, not what nine judges consider “fair” and “just.”

Justice Kagan claps back at Justice Gorsuch. She writes that Gorsuch doesn’t even attempt to figure out what that original meaning is:

The other concurrence proposes instead a return to the mid-19th century—a replacement of our current doctrine with the Fourteenth Amendment’s original meaning respecting personal jurisdiction. Post, at 9−10 (GORSUCH, J., concurring in judgment). But that opinion never reveals just what the Due Process Clauseas understood at its ratification required, and its ground for deciding these cases is correspondingly spare. Post, at 11. This opinion, by contrast, resolves these cases by proceeding as the Court has done for the last 75 years—applying the standards set out in International Shoe and its progeny, with attention to their underlying values of ensuring fairness and protecting interstate federalism.

Gorsuch returns the volley, and offers a full-throated defense of originalism:

The majority worries that the thoughts expressed here threaten to “transfigure our specific jurisdiction standard as applied to corporations” and “return [us] to the mid-19th century.” Ante, at 7, n. 2; ante, at9, n. 3. But it has become a tired trope to criticize any reference to the Constitution’s original meaning as (somehow) both radical and antiquated. Seeking to understand the Constitution’s original meaning is part of our job.

Amen. Next, Gorsuch adopts a very populist tenor. He criticizes Kagan for defending corporate privilege. The dynamics here seem backwards.

What’s the majority’s real worry anyway—that corporations might lose special protections? The Constitution has always allowed suits against individuals on any issue in any State where they set foot. Supra,at 8–9. Yet the majority seems to recoil at even entertaining the possibility the Constitution might tolerate similar results for “nationwide corporation[s],” whose “business is everywhere.” Ante, at 2; ante, at 9, n. 3.

Ultimately, Gorsuch says next-to-nothing about the original meaning of the 14th Amendment. But he hopes others do.

The parties have not pointed to anything in the Constitution’s original meaning or its history that might allow Ford to evade answering the plaintiffs’ claims in Montana orMinnesota courts. . . .The real struggle here isn’t with settling on the right outcome in these cases, but with making sense of our personal jurisdiction jurisprudence and International Shoe‘s increasingly doubtful dichotomy. On those scores, I readily admit that I finish these cases with even more questions than I had at the start. Hopefully, future litigants and lower courts will help us face these tangles and sort out a responsible way to address the challenges posed by our changing economy in light of theConstitution’s text and the lessons of history. 

BJustice Gorsuch’s Gundy dissent triggered the academy to argue that the non-delegation doctrine is inconsistent with original meaning. As I type, a legion of scholars are researching whether International Shoe is consistent with the original meaning of the Fourteenth Amendment. I’m sure John Bingham said something about “traditional notions of fair play and substantial justice.” After all, the past decade has taught me that the only jurisprudence faithful to original meaning are those decisions rendered between 1937 and 1981. Everything else is judicial activism. I’m waiting for orginalist International Shoe to drop.

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Georgia Bans Handing Out Water to Voters Waiting in Line, Because ‘Election Integrity’


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Republicans rush through a ream of voting restrictions in Georgia. A new law that Georgia’s GOP is peddling as an “election integrity” measure contains a host of problematic provisions, including a ban on handing out water or food to people waiting in line to vote and a ban on taking pictures of completed ballots (even your own).

Under the new law, “it shall be illegal for any person to…photograph or record a voted ballot.” Anyone who does so will be guilty of a misdemeanor crime.

An exception is made for the Georgia secretary of state, who will actually be required to digitize and publicize images of paper ballots. The new law creates “a pilot program for the posting of digital images of the scanned paper ballots created by the voting system.” These scanned images “shall be public records subject to disclosure.”

Those are just two of many questionable new rules for Georgia contained in the bill’s 96 pages. Another provision stipulates that no person shall “give, offer to give, or participate in the giving of any money or gifts, including, but not limited to, food and drink” to anyone within a polling place, within 150 feet of a building where voting takes place, or “within 25 feet of any voter standing in line to vote at any polling place.” (Self-service water stations are OK.)

Republicans are calling it the Election Integrity Act of 2021.

Opponents, meanwhile, have dubbed it the Voter Suppression Bill, owing to the range of new restrictions on voting that it lays out. The New Georgia Project, the Black Voters Matter Fund, and Rise Inc. have already filed a lawsuit against it.

Gov. Brian Kemp and other state Republicans say the new law is necessary to stop voter fraud. But to anyone whose brain hasn’t been melted by partisan politics, it’s a pretty transparent attempt to sway election results, or at least to play to voter fraud fears. Georgia—which President Joe Biden won in 2020—was the site of extensive Trump team bellyaching, investigation, and legal maneuvering, and yet attempts to uncover the fabled widespread voter fraud never panned out.

“The bill passed both chambers of the legislature in the span of a few hours before Republican Gov. Brian Kemp signed it Thursday evening,” notes CNN.

State Rep. Park Cannon (D–Atlanta), a lawmaker who knocked on Kemp’s door during the signing of the bill, was arrested and escorted out of the building by state police.

“Cannon was charged with willful obstruction of law enforcement officers by use of threats or violence and preventing or disrupting general assembly sessions,” reports NPR. “The Georgia State Constitution states that lawmakers ‘shall be free from arrest during sessions of the General Assembly’ except for treason, felony, or breach of the peace.”

Some of the most controversial earlier elements of the bill—restricting weekend voting hours, requiring an excuse to vote absentee—were nixed before passage. And not all of the measures contained in the massive new bill are controversial.

“Many of the measures in SB 202 will streamline the election administration process at the local level, such as allowing officials to process absentee ballots sooner, require them to count ballots nonstop once the polls close and allow flexibility with voting equipment for smaller, lower-turnout races,” NPR points out. “Poll workers could serve in neighboring counties, after the pandemic saw a shortage of trained workers.” And “precincts with more than 2,000 voters that have lines longer than an hour at three different points throughout the day have to add more machines, add more staff or split up the poll”

But mixed in with these are provisions that seem designed to restrict voting access, complicate the process, or make it easier for state officials to intervene. Some of these include:

  • Increasing voter ID requirements for people mailing in absentee ballots, who now have to submit identification details and a driver’s license number or other forms of government-issued ID when requesting an absentee ballot as well as when submitting it. A vote may be rejected if any ID details don’t match up between the request and the submission.
  • Cutting down on the number of absentee ballot boxes that can be used.
  • Limiting mobile voting stations to emergency use.
  • Requiring that absentee ballots be requested at least 11 days before the election (previously, they could be requested through the Friday before Election Day).
  • Requiring counties to publish the total number of votes cast and by what methods by 10 p.m. on election night.
  • Allowing the State Election Board to “suspend county or municipal superintendents and appoint an individual to serve as the temporary superintendent in a jurisdiction.”
  • Allowing a Georgia voter to challenge the qualifications of an unlimited number of other voters in their county or municipality.

You can read the full thing here.

FREE MINDS

Parler pushes back on claims of indulging Capitol rioters. Parler has been blamed for allegedly allowing “extremist” content in the lead-up to the January 6 Capitol riot. But the social network says it referred content to the FBI more than 50 times in the weeks leading up to the riot. From The Wall Street Journal:

Parler in December began alerting the bureau to content suggesting the possibility of violence at the Capitol as Congress met to confirm President Biden’s victory, the company wrote in a letter to the House Oversight and Reform Committee, which is investigating Parler and its role in the siege.

The social-media site referred a number of posts to law enforcement, including one on Dec. 24 from a user who called for an “armed force” of 150,000 people to “react to the congressional events of January 6,” according to the letter, which included the post and communications with FBI officials among its exhibits and has been reviewed by The Wall Street Journal.

Parler said it forwarded to the Federal Bureau of Investigation on Jan. 2 a series of posts from a user saying he would be wearing body armor to the pro-Trump rally on Jan. 6. “It’s no longer a protest,” Parler quoted the post as saying. “This is a final stand where we are drawing the red line at Capitol Hill. I trust the American people will take back the USA with force and many are ready to die to take back #USA.”

FREE MARKETS

New York is finally close to easing rules on recreational marijuana. Reason‘s Scott Shackford reports:

At a press conference Wednesday, Gov. Andrew Cuomo announced that an agreement was close and that lawmakers were reviewing the final details. The bill may be ready to be voted on as early as next week. The text of the bill is not yet public, but some of the details have been making its way out to New York media outlets….

Cuomo had been circulating his own legalization proposal that would completely forbid New Yorkers from growing their own—even for medical purposes. The draft now circulating would let New Yorkers grow their own weed: six plants at a time for their own use, but only three of which could be matured. Households with more than one adult could grow a maximum of 12 plants. Municipalities would be barred from banning people from growing their own, but they could establish restrictions.

If that part of the bill stays intact, it will be improvement over New Jersey’s recent legalization. New Jersey does not permit its citizens to grow their own marijuana. They have to purchase it from licensed dealers—who then, of course, have to direct a cut to the state via taxes.

New York’s bill will reportedly let cities opt out of allowing retailers, but it will also allow citizens to overrule such bans via ballot initiatives. The law would also permit social consumption sites, cafés where you can enjoy a little weed if you’re, say, a parent frustrated at the absurd corruption of your state’s government and in need of a little relaxation but don’t want marijuana in your house with the kids.

Licensed retail shops aren’t scheduled to begin opening under the current proposal until December 2022. Marijuana products will be taxed at 9 percent, and then an additional 4 percent tax will apply.

QUICK HITS

• A dispatch from the latest Big Tech hearing before Congress, which occurred yesterday in the House Energy and Commerce Committee and was ostensibly concerned with the spread of misinformation online.

• The White House is defending firing staff who admitted to ever using marijuana.

• In 28 states, there’s no minimum age for arresting kids. That needs to change, writes Reason‘s C.J. Ciaramella.

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Waiting for the other International Shoe to Drop

The vote in Ford Motor Co. v. Montana Eighth Judicial Dist. was 5-3. Justice Kagan wrote the majority opinion, which was joined by the Chief Justice, and Justices Breyer, Sotomayor, and Kavanaugh. (Justice Barrett did not participate). Justice Alito concurred in the judgment. He suggested that the majority opinion put a new “gloss” on personal jurisdiction caselaw. Justice Gorsuch wrote a separate concurrence, which was joined by Justice Thomas. Justice Gorsuch wrote a very Gorsuch opinion: he cast doubt on International Shoe Co. v. Washington (1945). Yes, the canonical case that every 1L struggles with.

Justice Gorsuch begins his analysis with a throwback to Pennoyer v. Neff (1878).

Before International Shoe, it seems due process was usually understood to guarantee that only a court of competent jurisdiction could deprive a defendant of his life, liberty, or property. In turn, a court’s competency normally depended on the defendant’s presence in, or consent to, the sovereign’s jurisdiction. But once a plaintiff was able to “tag” the defendant with process in the jurisdiction, that State’s courts were generally thought competent to render judgment on any claim against the defendant, whether it involved events inside or outside the State. Pennoyer v. Neff, 95 U. S. 714, 733 (1878).

In a footnote, Justice Gorsuch favorably cites the work of co-blogger Steve Sachs, who writes that Pennoyer was right. And in the same footnote, Gorsuch cites Justice Robert Jackson. Pretty good company to be in.

Recent scholarship, for example, contends Pennoyer‘s territorial account of sovereign power is mostly right, but the rules it embodies are not “fixed in constitutional amber”—that is, Congress might be able to change them. Sachs, Pennoyer Was Right, 95 Texas L. Rev. 1249, 1255 (2017). Others suggest that fights over personal jurisdiction would be more sensibly waged under the Full Faith and Credit Clause. Jackson, Full Faith and Credit—The Lawyer’s Clause of the Constitution, 45 Colum. L. Rev. 1, 3 (1945). Whether these theories are right or wrong, they at least seek to answer the right question—what the Constitution as originally understood requires, not what nine judges consider “fair” and “just.”

Justice Kagan claps back at Justice Gorsuch. She writes that Gorsuch doesn’t even attempt to figure out what that original meaning is:

The other concurrence proposes instead a return to the mid-19th century—a replacement of our current doctrine with the Fourteenth Amendment’s original meaning respecting personal jurisdiction. Post, at 9−10 (GORSUCH, J., concurring in judgment). But that opinion never reveals just what the Due Process Clauseas understood at its ratification required, and its ground for deciding these cases is correspondingly spare. Post, at 11. This opinion, by contrast, resolves these cases by proceeding as the Court has done for the last 75 years—applying the standards set out in International Shoe and its progeny, with attention to their underlying values of ensuring fairness and protecting interstate federalism.

Gorsuch returns the volley, and offers a full-throated defense of originalism:

The majority worries that the thoughts expressed here threaten to “transfigure our specific jurisdiction standard as applied to corporations” and “return [us] to the mid-19th century.” Ante, at 7, n. 2; ante, at9, n. 3. But it has become a tired trope to criticize any reference to the Constitution’s original meaning as (somehow) both radical and antiquated. Seeking to understand the Constitution’s original meaning is part of our job.

Amen. Next, Gorsuch adopts a very populist tenor. He criticizes Kagan for defending corporate privilege. The dynamics here seem backwards.

What’s the majority’s real worry anyway—that corporations might lose special protections? The Constitution has always allowed suits against individuals on any issue in any State where they set foot. Supra,at 8–9. Yet the majority seems to recoil at even entertaining the possibility the Constitution might tolerate similar results for “nationwide corporation[s],” whose “business is everywhere.” Ante, at 2; ante, at 9, n. 3.

Ultimately, Gorsuch says next-to-nothing about the original meaning of the 14th Amendment. But he hopes others do.

The parties have not pointed to anything in the Constitution’s original meaning or its history that might allow Ford to evade answering the plaintiffs’ claims in Montana orMinnesota courts. . . .The real struggle here isn’t with settling on the right outcome in these cases, but with making sense of our personal jurisdiction jurisprudence and International Shoe‘s increasingly doubtful dichotomy. On those scores, I readily admit that I finish these cases with even more questions than I had at the start. Hopefully, future litigants and lower courts will help us face these tangles and sort out a responsible way to address the challenges posed by our changing economy in light of theConstitution’s text and the lessons of history. 

BJustice Gorsuch’s Gundy dissent triggered the academy to argue that the non-delegation doctrine is inconsistent with original meaning. As I type, a legion of scholars are researching whether International Shoe is consistent with the original meaning of the Fourteenth Amendment. I’m sure John Bingham said something about “traditional notions of fair play and substantial justice.” After all, the past decade has taught me that the only jurisprudence faithful to original meaning are those decisions rendered between 1937 and 1981. Everything else is judicial activism. I’m waiting for orginalist International Shoe to drop.

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