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“Sidney Powell ‘Kraken’ lawsuit dismissed in Georgia after defeat in Michigan.” I haven’t followed the litigation closely enough to opine on the merits, but so far it appears that the Kraken hasn’t really done much against any titans.

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Brian Umphress is the County Judge in Jack County, Texas. County Judge is apparently largely an executive position in Texas, though such a judge also does serves as a judge in small matters.

Judge Umphress officiates only at opposite-sex weddings, disagrees with Obergefell (the Supreme Court’s same-sex marriage decision), and “plans to run for reelection in 2022 on the platform that Obergefell was wrongly decided.” (There is no reason to think, to my knowledge, that he is refusing to comply with Obergefell in his legal rulings.) He therefore sued the Texas Commission on Judicial Conduct in federal court, seek an injunction and a declaratory judgment stating that he isn’t violate the Canons of Judicial Conduct.

U.S. District Judge Mark T. Pittman held (in an order that was slightly amended two days after being filed) that Umphress didn’t have the standing to sue the Commission, the case wasn’t ripe for decision, and the federal court should abstain given that the Canon is being challenged in a different case in state court. I in turn abstain from opining on these exciting procedural questions.

But then the Commission decided it hadn’t won enough, and filed an unopposed motion to clarify or amend Judge Pittman’s order:

Several passages in the Court’s Amended Order might inaccurately lead members of the public to believe that the Commission has prejudged issues concerning Judge Umphress. It has not; and it would not make any determinations about Judge Umphress’ current or future conduct unless, and until, a proceeding against him were initiated. It continues to be accurate that no proceeding is currently planned or anticipated. But the Commission has not been called upon to make, nor has it made, any representations that no proceeding ever could occur in the future, nor has the Commission prejudged what the outcome of any future proceeding might be. That would depend upon the specifics of what a future complaint might allege and the specifics of what future factual record might be developed.

It also submitted a proposed order with proposed text for several modifications. (Parties submitting proposed orders is not uncommon in many courts, and indeed is often required, though as we’ll see this proved not to be a successful tactic.

Today, Judge Pittman said no, in a colorful way (no?):

The Court finds the Commission’s concerns misplaced and unwarranted. The factual summary accurately reflects the Court’s understanding and interpretation of the record before it…. Indeed, the Court believes that anyone who comes across the Amended Order would find that it means what it says: that at the time Judge Umphress filed suit (1) he lacked standing, (2) his claims were unripe, and (3) that the Court would have invoked Pullman abstention in the alternative.

One might analogize the expressio unius canon to this situation in that anything not expressly held in the Amended Order was purposefully excluded, as nowhere in the Amended Order did the Court state or imply that the Commission immunized Judge Umphress from complaint or investigation. To any extent that there may be a “misconception” in connection with the Amended Order, let this Order’s existence serve to correct it.

Finally, the Court is deeply disturbed by the Motion. A mere diction dispute does not a Second Amended Order merit. The Court strains itself to imagine a similar situation in which a victorious party returned to the arena, declared its medal not quite to its liking, and demanded it be recast in a form more pleasing to its recipient.

Put simply, the Commission is inappropriately asking this Court to redraft its order in a way more suitable to its liking. As the late Judge Eldon Mahon frequently observed in his thirty years on this bench, the Court’s Order “it’s what it is, let the chips fall where they may.”

Who’s right and who’s wrong in the abstract is not for me to judge here. A winning litigant may well be entitled to some clarifications of an order; there’s no rule precluding such a request, to my knowledge. But experienced lawyers do tell juniors, “once you’ve won, sit down,” and the judge’s reaction in this case might corroborate the psychological truth behind that adage.

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Brian Umphress is the County Judge in Jack County, Texas. County Judge is apparently largely an executive position in Texas, though such a judge also does serves as a judge in small matters.

Judge Umphress officiates only at opposite-sex weddings, disagrees with Obergefell (the Supreme Court’s same-sex marriage decision), and “plans to run for reelection in 2022 on the platform that Obergefell was wrongly decided.” (There is no reason to think, to my knowledge, that he is refusing to comply with Obergefell in his legal rulings.) He therefore sued the Texas Commission on Judicial Conduct in federal court, seek an injunction and a declaratory judgment stating that he isn’t violate the Canons of Judicial Conduct.

U.S. District Judge Mark T. Pittman held (in an order that was slightly amended two days after being filed) that Umphress didn’t have the standing to sue the Commission, the case wasn’t ripe for decision, and the federal court should abstain given that the Canon is being challenged in a different case in state court. I in turn abstain from opining on these exciting procedural questions.

But then the Commission decided it hadn’t won enough, and filed an unopposed motion to clarify or amend Judge Pittman’s order:

Several passages in the Court’s Amended Order might inaccurately lead members of the public to believe that the Commission has prejudged issues concerning Judge Umphress. It has not; and it would not make any determinations about Judge Umphress’ current or future conduct unless, and until, a proceeding against him were initiated. It continues to be accurate that no proceeding is currently planned or anticipated. But the Commission has not been called upon to make, nor has it made, any representations that no proceeding ever could occur in the future, nor has the Commission prejudged what the outcome of any future proceeding might be. That would depend upon the specifics of what a future complaint might allege and the specifics of what future factual record might be developed.

It also submitted a proposed order with proposed text for several modifications. (Parties submitting proposed orders is not uncommon in many courts, and indeed is often required, though as we’ll see this proved not to be a successful tactic.

Today, Judge Pittman said no, in a colorful way (no?):

The Court finds the Commission’s concerns misplaced and unwarranted. The factual summary accurately reflects the Court’s understanding and interpretation of the record before it…. Indeed, the Court believes that anyone who comes across the Amended Order would find that it means what it says: that at the time Judge Umphress filed suit (1) he lacked standing, (2) his claims were unripe, and (3) that the Court would have invoked Pullman abstention in the alternative.

One might analogize the expressio unius canon to this situation in that anything not expressly held in the Amended Order was purposefully excluded, as nowhere in the Amended Order did the Court state or imply that the Commission immunized Judge Umphress from complaint or investigation. To any extent that there may be a “misconception” in connection with the Amended Order, let this Order’s existence serve to correct it.

Finally, the Court is deeply disturbed by the Motion. A mere diction dispute does not a Second Amended Order merit. The Court strains itself to imagine a similar situation in which a victorious party returned to the arena, declared its medal not quite to its liking, and demanded it be recast in a form more pleasing to its recipient.

Put simply, the Commission is inappropriately asking this Court to redraft its order in a way more suitable to its liking. As the late Judge Eldon Mahon frequently observed in his thirty years on this bench, the Court’s Order “it’s what it is, let the chips fall where they may.”

Who’s right and who’s wrong in the abstract is not for me to judge here. A winning litigant may well be entitled to some clarifications of an order; there’s no rule precluding such a request, to my knowledge. But experienced lawyers do tell juniors, “once you’ve won, sit down,” and the judge’s reaction in this case might corroborate the psychological truth behind that adage.

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Before we talk about the delicious/delirious content on the latest Reason Roundtable podcast, a quick reminder: It’s the penultimate day of our annual Webathon. Challenge grants are afoot. We take still more listener questions in the pod below, but before you click the clicky…

WON’T YOU PLEASE DONATE TO REASON RIGHT ABOUT THE HELL NOW?

OK, long story short, the House of Representatives on Friday voted to, at long bloody last, end the federal war on marijuana. The winning 228–164 margin included just five Republicans—none of them named Thomas Massie, the libertarian-leaning Kentucky congressman who has been a past supporter of legalization efforts. Massie explained his position thusly:

I wish @SpeakerPelosi was serious about repealing the federal prohibition on marijuana. I could cross the aisle to vote on it if it weren’t being used as a vehicle to pass new taxes and spending.

Give us a clean Bill or at least allow amendments to be heard. https://t.co/bTenlmsjck

— Thomas Massie (@RepThomasMassie) December 2, 2020

In today’s podcast, Katherine Mangu-Ward, Nick Gillespie, Peter Suderman, and Matt Welch each take turns arguing against this logic, while also reflecting on the broader history of repealing prohibitions and the immediate challenges of convincing any major political party to reduce state power and expand individual autonomy. The gang also has acidic words for the Food and Drug Administration’s foot-dragging on COVID-19 vaccines, kinder words for our own magazine (we like ourselves, we really do!), plus the usual pointless squabbling about the Star Wars universe.

Audio production by Ian Keyser and Regan Taylor.

Music: “Endless Fields—Pizzicato Version” by Ian Post.

Relevant links from the show:

“For the First Time Ever, the House Votes To Repeal the Federal Ban on Marijuana,” by Jacob Sullum

“Drugs Declare Victory in War on Drugs,” by Jacob Sullum

“Biden’s Choice To Head Health and Human Services Is a Lawsuit-Happy Government Nanny,” by Scott Shackford

“The U.K. Approves COVID-19 Vaccine While the U.S. FDA Dawdles,” by Ronald Bailey

“Will the COVID-19 Vaccines Soon Crush the Pandemic?” by Ronald Bailey

“Like COVID-19 Vaccines? Thank Globalization!” by Eric Boehm

“You Asked, We Told: The Reason Roundtable Fields Your Questions,” by Matt Welch

“Will Cities Survive 2020?” by Christian Britschgi

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In October, Britain’s Passport Office granted an average of five passports every minute to residents of Hong Kong—each one a potential lifeline to someone fleeing China’s crackdown on the formerly autonomous city.

More than 216,000 residents of Hong Kong received “British National (Overseas)” passports during the first 10 months of 2020, according to data obtained by Bloomberg from the British government. More than 59,000 were issued in October alone. Both of those figures represent huge increases over annual norms.

In July, Britain upgraded the status of those special “BNO” passports, which are available to Hongkongers because of the territory’s historical ties to the British government. Now BNO passport-holders are allowed to relocate to Britain for up to five years and have access to a path to full-time U.K. citizenship. The new rules were passed in direct response to China’s crackdown, especially the June passage of a national security law allowing the central government to clamp down on civil liberties.

China has criticized Britain for opening its doors in this way, but the U.K. deserves praise for acting quickly and decisively in defense of freedom. Bloomberg‘s reporting certainly suggests that demand is surging for this escape route.

It is shameful that America has not stepped up to do something similar.

Hongkongers currently have few options for coming to America. They can seek political asylum in the United States—and an executive order signed by President Donald Trump in July does reserve more spots on the refugee list for people fleeing Hong Kong—but to claim asylum one must be physically present in the United States. That, in turn, requires having another type of visa in order to get on a plane across the Pacific. Meanwhile, the Trump administration has slashed the number of political refugees the country will accept: just 15,000 during the current fiscal year, down from 85,000 in 2016.

Britain issued nearly four times as many BNOs to Hongkongers in October as the number of refugees America will accept from the entire world this year.

What could America do instead? Some members of Congress have proposed a bill to automatically grant asylum to any resident of Hong Kong who arrives in the United States and to exempt those numbers from the official refugee counts set by the White House. A more robust idea, proposed by Matt Yglesias in May, would be to grant a special visa allowing Hongkongers to settle in American counties where the population is shrinking, with permanent residency granted after five years.

“An influx of skilled migrants from Hong Kong would benefit many American communities,” wrote Yglesias, then a senior editor at Vox. “The specter of tens of thousands of people fleeing Chinese rule for American shores would be a tremendous propaganda victory for the United States.”

China’s loss would be America’s gain. An influx of people from Hong Kong—and the knowledge, skills, money, and entrepreneurship they would bring—would be an economic boon for the United States, particularly if they resettle in areas where the population is stagnant or declining. Claims that refugees don’t share American values would be even less legitimate than usual: Protesters in Hong Kong have been literally waving American flags as a symbol of their resistance.

Those who could benefit most from such an escape hatch are critics of the Chinese Communist Party. People like Joshua Wong, the secretary-general of the pro-democracy political party Demosisto, who spoke with Reason‘s Zach Weissmueller in June. Wong had been arrested in 2019 for organizing protests and was arrested again in September.

Even while trying to look tough on China, the Trump administration has fumbled an opportunity to set aside its anti-immigrant zealotry to throw open the doors for Hongkongers looking to escape. President-elect Joe Biden has criticized Trump’s response to the protests in Hong Kong, but Biden has not offered many specifics about what he would do differently.

While America dawdles, the passport-printing machines in Britain are running at full speed.

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From the article by Elizabeth Dwoskin, Nitasha Tiku & Heather Kelly (I’m linking to the copy that is on the Boston Globe site, and is thus not as heavily paywalled):

In the first phase of the project, which was announced internally to a small group in October, engineers said they had changed the company’s systems to deprioritize policing contemptuous comments about “whites,” “men” and “Americans.” Facebook still considers such attacks to be hate speech, and users can still report it to the company. However, the company’s technology now treats them as “low-sensitivity”—or less likely to be harmful—so that they are no longer automatically deleted by the company’s algorithms. That means roughly 10,000 fewer posts are now being deleted each day, according to the documents.

The story asserts that existing practices “resulted in the company being more vigilant about removing slurs lobbed against white users while flagging and deleting innocuous posts by people of color on the platform,” but doesn’t offer much by way of specific details. And in any event, the new policy appears to be overtly aimed at treating “contemptuous comments about ‘whites,’ ‘men,’ and ‘Americans'” differently than “slurs directed at Black people, Muslim people, people of more than one race, the LGBTQ community, and Jewish people”—not at treating speech targeted at different races, sexes, nationalities, religions, and the like equally.

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