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Earlier today, the Senate overwhelmingly voted to override President Trump’s veto of the National Defense Authorization Act, thus handing Trump the first veto override of of his term. Section 2801 of the Act  limits the president’s ability to use “emergency” declarations to divert military construction funds to no more than $100 million per year for construction within the United States. This largely closes the loophole Trump tried to use to fund parts of his border wall project, using an emergency declaration he issued in 2019, thereby laying claim to some $3.6 billion.

In my view, this part of Trump’s border wall funding diversion was already illegal for reasons described in a recent Ninth Circuit decision ruling against the administration on this issue. I also wrote about these issues here. The new NDAA doesn’t affect the ongoing litigation over Trump’s previous diversion of funds, because it only applies to newly appropriated funds, not those Trump has laid claim to from the previous NDAA. In addition, much of the funding Trump has tried to use does not rely on his emergency declaration, but rather on dubious manipulation of Section 8005 the 2019 NDAA. Lower courts have ruled against Trump on that diversion, as well, but the case is currently before the Supreme Court (though the litigation might not continue of President-elect Biden keeps his promise to immediately terminate the funding diversions and associated wall construction). Section 1001 of  the new NDAA  does, unfortunately, include language similar to that of Section 8005 in the 2019 one.

As a practical matter, this limitation in the new NDAA probaby won’t have much, if any, effect on Trump’s border wall project, because Biden is likely to terminate it soon, anyway. But it will make it harder for Biden—or another future president—to usurp Congress’ spending power and use “emergency” declarations to convert the military construction budget into a piggy bank for his personal pet projects.

More needs to be done to curb presidential abuse of “emergency” declarations, and usurpation of the spending power. Both have been serious problems under Trump, who declared a dubious emergency at the border in order to secure funding Congress had denied for his wall, repeatedly tried to circumvent Congress’ power of the purse for such purposes as attacking sanctuary cities and pressuring Ukraine to launch an investigation of Joe Biden and his son. It would be naive to imagine that future presidents won’t engage in similar shenanigans, if the opportunity arises. But though it is not a complete solution to these problems, Section 2801 of the new NDAA is at least a step in the right direction.

Obviously, the NDAA includes many other provisions. As with any large spending bill, there are many that I am not a fan of. But I’m still happy Congress overruled Trump’s veto, because his proposed changes—adding a repeal of Section 230 protection for website providers and subtracting a provision changing the names of military bases named after Confederate generals—would have made the bill worse, not better.

Section 230 repeal (an idea backed by many on both left and right) is a terrible idea for reasons well-summarized by Hannah Cox here. Eliminating monuments (and base names) honoring Confederate leaders is desirable for reasons I outlined here and here. It especially makes no sense for the US military to have major bases named after men who fought to break up the US for the profoundly evil purpose of perpetuating slavery.

That said, perhaps the soon-to-be renamed Fort Bragg should still includ some sort of commemoration General Braxton Bragg, widely considered to be one of the worst generals of the Civil War. His incompetence made a major contribution to Union cause! He did more to bring about Union victory in the West than any other general on either side, with the possible exceptions of Grant and Sherman. That, arguably, deserves some recognition.

 

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

New on the Bound By Oath podcast: inhumane jail conditions and the Supreme Court’s debunked justifications for qualified immunity.

• In an effort to improve price transparency in the healthcare sector, the Secretary of Health and Human Services has directed hospitals to post certain price information online. D.C. Circuit: These “factual and uncontroversial” compelled disclosures do not violate the First Amendment. The hospitals argue the information won’t actually be useful to consumers, but the Secretary found otherwise and we don’t require “evidentiary parsing” to uphold disclosure requirements.
• Tinker, Tailor, Soldier, Tweet? After a U.K. financier tweets that a D.C. resident is a “Russian intelligence asset” and “Russian GRU officer,” the alleged Russian spy sues the financier for defamation in federal court in D.C. D.C. Circuit: On the current record, we’re not sure if the U.K. financier’s contacts with the District are sufficient to subject the financier to the jurisdiction in D.C., so we’ll remand for some jurisdictional discovery.
• In 2013, the feds leased the Old Post Office building, which now houses a luxury hotel, to the Trump Organization. The lease explicitly prohibits any federal elected officials from benefiting from it, and, upon President Trump’s election, certain members of the House Oversight Committee seek records from the feds to determine how much the president is benefiting. D.C. Circuit: Federal law says the members are entitled to the documents; the feds have withheld them; that’s enough of an injury for standing. Dissent: Federal law says the legislature has been injured, not individual legislators. Allowing a handful of members of the minority party to harass the executive branch with information requests is sure to be ruinous.
• Following SCOTUS’s lead, the Second Circuit applies strict scrutiny to Governor Cuomo’s COVID-19 orders that single out religious gatherings for “especially harsh treatment” in New York.
• Plaintiff: The government, invoking an arms-control statute, says it might punish me for publishing certain publicly available information without a license. This violates the First Amendment! Second Circuit: First Amendment, Schmirst Amendment. The statute already says the government can’t do that, so you should all just go home.
• Naval officer goes to get his kids lunch money from a Newport News, Va. ATM. He’s shot to death in his car. Turns out his wife, who was set to get half a mil in death benefits and life-insurance proceeds, was having an affair (one of several secrets she kept). She and her paramour arranged for a friend to stage a robbery gone bad at the ATM. All three are convicted, and the triggerman is sentenced to death. The Fourth Circuit, with three judges and three opinions, sends the case down for an evidentiary hearing to determine whether the triggerman’s attorney was deficient in not investigating the man’s brain damage and potential mental illness.
• People arrested for criminal offenses in Dallas County, Tex. are taken for an initial hearing before a county magistrate judge, who considers whether to release the arrestee and sets bail from a discretionary schedule. Plaintiffs: Cash bail can only be required after an individualized finding that it is necessary despite someone’s inability to pay. Alas, the Fifth Circuit won’t go so far. After weaving its way through a procedural maze, the federal court enjoins the imposition of prescheduled bail amounts, requiring instead that a hearing be held within 48 hours of arrest to evaluate whether any bail amount need be paid or if another condition might suffice.
• Allegation: After third-grader commits suicide, his parents learn that Cincinnati, Ohio school officials downplayed, misled, and failed to inform them about numerous incidents where he was attacked by classmates. In an incident two days before his death, the boy was knocked unconscious by a classmate; officials told the boy’s parents he fainted. Sixth Circuit: The principal and assistant principal are not entitled to governmental immunity under Ohio law. The parents’ state law claims can proceed.
• In which the Seventh Circuit reminds Sidney Powell that Clash of the Titans did not end well for the Kraken (featuring the doctrine of “laches” in the role of Medusa’s severed head).
• Plaintiffs challenging denial of social security benefits must file suit within 60 days of receiving notice of the denial, which is presumed to have been received five days after it was mailed unless the plaintiff makes a “reasonable showing” that notice was late. Plaintiff: Here’s a signed declaration from me, my lawyer, and his secretary that none of us received notice. Gov’t: That’s not enough. Ninth Circuit: If that’s not enough, nothing would be. Case un-dismissed.
• The Ninth Circuit would like to congratulate Seila Law on its victory in the Supreme Court. They still have to respond to a civil investigative demand from the Consumer Financial Protection Bureau, but they can rest easy knowing that the person running the CFPB can be fired without cause.
• In 2019, the feds adopted new regulations­ concerning the treatment of accompanied and unaccompanied minors subject to immigration detention. Ninth Circuit: Some of the rules—including requiring the minors to request a bond hearing (instead of providing one unless they opt out), limiting the circumstances in which accompanied minors can be released, and holding families in facilities licensed by ICE rather than a state—run afoul of a 1997 consent decree and are enjoined.
• Attorneys for Stanislaus County, Calif. access juvenile records without a court order, which violates state law. But does it also violate the Constitution? Ninth Circuit: No need to say; the only case on point is too vague to clearly establish a right to privacy in the records. The county’s lawyers get qualified immunity. Judge Hunsaker, concurring: We should take this en banc to consider in earnest whether there is a right. (In the meantime, the case against the county itself proceeds in the district court.)
• Man pleads no contest, is sentenced to four years for, per the criminal information, “pushing and stricking (sic)” two Bethany, Okla. police officers. Can he sue those officers for excessive force? District court: No, not since he pleaded no contest to fighting them. Tenth Circuit: Case un-dismissed. The officers allegedly tased him and put him in a chokehold after he’d been subdued. That claim can go to discovery.
• Twitter personality—who famously handcuffed herself to Twitter’s offices after the company banned her account—sues Twitter, a Muslim civil rights group, and the group’s Florida chapter over the ban. Eleventh Circuit: Nope.

Can California stop kindly ladies from talking to the dying and their families about how to hold a (perfectly legal) funeral in a private home? A federal judge in California just said no, issuing a preliminary injunction protecting the free-speech rights of end-of-life doulas. The state funeral bureau cracked down last year on Full Circle of Living and Dying, a shoestring nonprofit run by retired grandmothers who teach families how to care for deceased loved ones themselves. The bureau forbade these grandmothers from teaching and giving advice because they are not state-licensed funeral directors. But the First Amendment doesn’t have an exception for occupational licensing, and so the doulas will go into 2021 to secure a final victory for themselves and everyone else who earns a living by speaking. Click here to read the order.

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The traditional Russian new year’s greeting (с новым годом, с новым счастьем), from me to all of you!

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CNBC in September (but I just saw this today): “One of the developers in the lead for a vaccine to prevent Covid-19, is slowing enrollment slightly in its large clinical trial to ensure it has sufficient representation of minorities most at risk for the disease, its chief executive said.”

 

This is particularly egregious because apparently Moderna felt the need to ensure sufficient representation of Hispanic Americans. Even if you buy the dubious notion that there is a significant chance that vaccines will have significantly different effects by “race,” what race are Hispanics supposed to be, exactly? The average American Hispanic is about 3/4 European by descent, based on DNA studies. Essentially, then, Moderna allowed tens of thousands of people to die to ensure that “enough” white people who happen to have Spanish-speaking ancestors were included.

Like many stupidities, the very unscientific focus in biomedical research on having subjects that match official American racial categories is the product of government policy. Even if, unlike me, you believe in “race” as a biological concept likely to have significant medical consequences, our American civil rights/affirmative action categories don’t make any sense in that regard For example, we put Caucasian people from India in the same “racial” category as East Asians such as Chinese and Austronesians such as Filipinos. Indians and most Filipinos are not genetically close to East Asians, but are 40% of the “Asian American” population. When medical statistics are reported about “Asian Americans,” we have no idea how things broke down among Indians, Chinese, Filipinos, and other groups, or even whether and to what extent the different groups were represented.

A chapter of my in-progress book on American racial classification (preview here) will discuss this in detail, but a shorter version <a href=”https://www.yalejreg.com/nc/two-decades-ago-the-fda-and-nih-mandated-the-use-of-race-to-categorize-subjects-and-report-results-in-medical-and-scientific-research-they-oversee-it-was-a-huge-mistake-by-david-e-bernstein/”>can be found here</a>.

Serious question: Why did I only hear about this today? Why wasn’t there mass outrage when this was reported in September?

[cross-posted on Instapundit]

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On Christmas day, we learned that the ashes of James Doohan, the actor who played Scotty in the original Star Trek series and several movies, were surreptitiously brought to the International Space Station (ISS) in 2008. For fans of the classic science fiction franchise, it was a fitting extraterrestrial resting place for the man who played a beloved character. For those with dreams of a free life beyond Earth’s gravity, though, it was also a hint that the roguish spirit of Han Solo and Malcolm Reynolds has already taken root in humanity’s ventures into space.

“Now it can be revealed that in death the actor who played the starship’s chief engineer has travelled nearly 1.7 billion miles through space, orbiting Earth more than 70,000 times, after his ashes were hidden secretly on the International Space Station,” the Times of London reported on December 25. “‘It was completely clandestine,’ said Richard Garriott, a video game entrepreneur who smuggled James Doohan’s ashes on to the ISS in 2008 during a 12-day mission as a private astronaut.”

Garriott, who stashed a laminated card containing some of Doohan’s ashes in the ISS’s Columbus module at the request of the actor’s son, Chris, makes another appearance in space smuggling lore. The video game entrepreneur, who paid a reported $30 million to fly in a Soyuz capsule to the ISS, passed along gossip he’d picked up about cosmonauts transporting unapproved items into space.

“One of the historically common methods of taking a few extra personal items on board was on Soyuz, when you would be driving out to the launch pad where—starting with Gagarin—he stopped to unzip his space suit to urinate on the back tire of the bus,” Garriott told Chris Carberry, author of the 2019 book, Alcohol in Space: Past, Present and Future. “As it turns out, it was also an opportunity to push something inside your spacesuit at the last minute.”

We’re talking about Russian cosmonauts here but, surprisingly, the illicit orbital beverage of choice wasn’t vodka. “Cognac became the preferred drink for cosmonauts,” noted Carberry in his book. “And they devised clever and elaborate methods for smuggling this contraband on board space missions.”

Not only did the cosmonauts shove flasks of cognac into their space suits, but they also hollowed out books and hid bottles inside. Since weight is strictly regulated on space flights, some enterprising types starved themselves in the final week before launch to offset the mass of the contraband. They apparently offset a lot of mass.

“The occurrences of alcohol smuggling were so frequent that subsequent crews would often find bottles hidden in space suits, behind panels, and in other locations,” Carberry observes of the various Soviet/Russian space station missions.

The U.S. space program has also enjoyed incidents of illicit transport into space dating back to the earliest days of manned missions. In orbit in 1962, Wally Schirra discovered an unapproved gift in his capsule, courtesy of fellow astronaut Gordon Cooper. “A trimmed-down Tareyton pack held four cigarettes, but that was not the only bit of contraband to go into the little hiding place, because there was also a miniature bottle of scotch whiskey,” according to Colin Burgess’s 2016 book, Sigma 7: The Six Mercury Orbits of Walter M. Schirra, Jr.

Unsurprisingly, given the unappealing quality of most space rations, food features in the history of extraterrestrial contraband. Don Arabian, head of the test division at the Manned Spacecraft Center, reportedly “lost the will to live” after spending three days eating the food given to Apollo astronauts. A proposal to let space travelers drink sherry in orbit as a morale-booster was, unfortunately, shut down for public relations reasons. But astronauts had already dabbled with their own solutions to unpalatable fare. According to the National Air and Space Museum:

The (sanctioned) Gemini meal packages included a freeze-dried entree, vegetable, drink and dessert, protected with a 4-ply, laminated film coating. [Astronaut John] Young, it seemed, wasn’t interested in the freeze-dried option, so he brought something else on board. As he admitted to Life, ‘I hid a sandwich in my spacesuit.’

According to Young, his contraband corned-beef sandwich was thanks to astronaut Wally Schirra, who had it prepared at a restaurant in Cocoa Beach before Gemini 3 launched.

The smuggled sandwich caper actually caused a congressional fuss, prompting (probably empty) assurances from NASA that it would never occur again. A replica of the forbidden meal is preserved at the Grissom Memorial Museum in Mitchell, Indiana (Gus Grissom accompanied Young on the mission).

Admittedly, none of these incidents rise, so far, to the rule-breaking standards set by fictional smugglers in the likes of Star Wars and Firefly. We have yet to see the equivalent of the hidden compartments installed by Han Solo and Chewbacca in the Millennium Falcon, or by Malcolm Reynolds and Zoe Washburne in the Serenity. And professional smuggling remains a matter for fiction, though there must be terrestrial practitioners contemplating out-of-this-world opportunities. But we’re in early days for space travel and smuggling efforts will have to grow along with the ventures across a new frontier.

What we are seeing in abundance is the human eagerness to defy rules in order to have access to forbidden goods. Manned space missions might remain limited in number, government-dominated, and heavily regulated, but people have already found the will and the means to smuggle contraband past the authorities. Can you imagine what space travel will look like when competing private companies regularly carry thousands of passengers who want what they want no matter the whims of the powers that be?

So, hoist a drink—legal or otherwise—to Richard Garriott, rule-breaking space traveler. He not only found an appropriate resting place for an actor who portrayed a popular science fiction character, he also boldly went where extraterrestrial smugglers have already gone, and those of the future are sure to follow.

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