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Think Globally, Shame Constantly: The Rise of Greta Thunberg Environmentalism

Appearing like some child messiah in a science fiction novel, the 16-year-old Swedish activist Greta Thunberg has just delivered what is arguably the fiercest jeremiad in America since Jonathan Edwards uncorked “Sinners in the Hands of an Angry God” in 1741. Speaking at the United Nations, Thunberg, who has been diagnosed with Asperger’s syndrome and started protesting climate change in 2017 by staying out of school on Fridays, told the audience that it was responsible for destroying her life and that of the planet.

You have stolen my dreams and my childhood with your empty words. And yet I’m one of the lucky ones. People are suffering. People are dying. Entire ecosystems are collapsing. We are in the beginning of a mass extinction, and all you can talk about is money and fairy tales of eternal economic growth. How dare you!

Thunberg—and other doomsayers—are wrong about the environment and how best to mitigate the negative effects of climate change. You can watch her speech below:

To say that reactions to Thunberg are as extreme as her rhetoric is an understatement. When I tweeted about her remarks earlier today, my timeline quickly filled with replies such as “Hitler also liked using pigtailed propaganda girls” and “She is a prop and a tool for eco-communism. A propaganda icon that needs to be destroyed.” Of course, President Trump weighed in, posting a clip of her speech and commenting sarcastically, “She seems like a very happy young girl looking forward to a bright and wonderful future. So nice to see!”

But despite the volume and vitriol of the attacks directed her way, it’s vitally important that the worldview she represents and the policies she espouses are refuted. Like Rep. Alexandria Ocasio-Cortez (D–N.Y.), Sen. Elizabeth Warren (D–Mass.), and a host of other American politicians, Thunberg believes that we’ve only got a few years left to settle the fate of the planet, a basic tenet pushed by supporters of the Green New Deal and by most of the Democrats running for president. In fact, Thunberg thinks that “cutting our emissions in half in 10 years,” the target invoked by many environmentalists, is too little, too late. She avers that such a drastic reduction only

gives us a 50% chance of staying below 1.5 degrees [Celsius], and the risk of setting off irreversible chain reactions beyond human control.

Fifty percent may be acceptable to you. But those numbers do not include tipping points, most feedback loops, additional warming hidden by toxic air pollution or the aspects of equity and climate justice. They also rely on my generation sucking hundreds of billions of tons of your CO2 out of the air with technologies that barely exist.

So a 50% risk is simply not acceptable to us—we who have to live with the consequences.

Such catastrophic thinking is similar to AOC’s equally apocalyptic statement that “The world is gonna end in 12 years” and Warren’s contention that “we’ve got, what, 11 years, maybe” to cut our emissions in half to save the planet. As Reason‘s Ronald Bailey has documented, such predictions stem from a fundamental misreading of a 2018 report from the Intergovernmental Panel on Climate Change (IPCC). That report offered up predictions in the growth of global economic activity, how it might be affected by climate change, and how reducing greenhouse gases might increase planetary GDP. It did not specify anything like a 10- to 12-year window after which extinction or amelioration is inevitable. Writes Bailey:

If humanity does nothing whatsoever to abate greenhouse gas emissions, the worst-case scenario is that global GDP in 2100 would be 8.2 percent lower than it would otherwise be.

Let’s make those GDP percentages concrete. Assuming no climate change and an global real growth rate of 3 percent per year for the next 81 years, today’s $80 trillion economy would grow to just under $880 trillion by 2100. World population is likely to peak at around 9 billion, so divvying up that GDP suggests that global average income would come to about $98,000 per person. Under the worst-case scenario, global GDP would only be $810 trillion and average income would only be $90,000 per person.

“There is no looming climate change ‘expiration date,'” writes Bailey, a point underscored by Bjorn Lomborg, president of the Copenhagen Consensus Center, which promotes cost-effective policies to remediate climate change, hunger, disease, and other global issues. Lomborg notes that the IPCC itself

has found the evidence does not support claims that floods, droughts and cyclones are increasing.

The scientists have said, “there is low confidence in a global-scale observed trend” in drought, a “lack of evidence regarding the sign of trend in the magnitude and/or frequency of floods on a global scale” and “no significant observed trends in global (cyclone) frequency over the past century.”

What’s more, the scientists have found that current human-caused global warming cannot reasonably be linked to any of these extreme weather phenomenon-“globally, there is low confidence in attribution of changes in (cyclone) activity to human influence”, “low confidence in detection and attribution of changes in drought” and low confidence “that anthropogenic climate change has affected the frequency and magnitude of floods”. This doesn’t mean there is no problem－just that the facts matter.

There are only better and worse ways to deal with coming changes. Contra Thunberg, the better ways don’t demonize economic growth as a problem but as a solution. “The most inexorable feature of climate-change modeling isn’t the advance of the sea but the steady economic growth that will make life better despite global warming,” writes science journalist Will Boisvert. The environmental Kuznets curve, by which countries get wealthier and their citizens demand a cleaner environment, is the rule, not the exception. Such a dynamic is predicated upon economic and technological innovation that would be almost impossible under the sort of regulations promulgated by Green New Dealers and activists such as Thunberg and Naomi Klein, who wants to “decimate the entire neoliberal project” in the name of environmentalism. Environmental commons tend to deteriorate as countries begin to develop economically—but once per-capita income reaches a certain level, the public starts to demand a cleanup. It’s a U-shaped pattern: Economic growth initially hurts the environment, Bailey reminds us,

but after a point it makes things cleaner. By then, slowing or stopping economic growth will delay environmental improvement, including efforts to mitigate the problem of man-made global warming.

Greta Thunberg’s histrionics are likely heartfelt but neither they nor the deplorable responses they conjure are a guide forward to good environmental policy in a world that is getting richer every day. For the first time in human history, half the earth’s population is middle class or wealthier and the rate of deaths from natural disasters is well below what it was even a few decades ago. Protecting all that is just as important as protecting the environment and, more importantly, those two goals are hardly mutually exclusive.

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Think Globally, Shame Constantly: The Rise of Greta Thunberg Environmentalism

Appearing like some child messiah in a science fiction novel, the 16-year-old Swedish activist Greta Thunberg has just delivered what is arguably the fiercest jeremiad in America since Jonathan Edwards uncorked “Sinners in the Hands of an Angry God” in 1741. Speaking at the United Nations, Thunberg, who has been diagnosed with Asperger’s syndrome and started protesting climate change in 2017 by staying out of school on Fridays, told the audience that it was responsible for destroying her life and that of the planet.

You have stolen my dreams and my childhood with your empty words. And yet I’m one of the lucky ones. People are suffering. People are dying. Entire ecosystems are collapsing. We are in the beginning of a mass extinction, and all you can talk about is money and fairy tales of eternal economic growth. How dare you!

Thunberg—and other doomsayers—are wrong about the environment and how best to mitigate the negative effects of climate change. You can watch her speech below:

To say that reactions to Thunberg are as extreme as her rhetoric is an understatement. When I tweeted about her remarks earlier today, my timeline quickly filled with replies such as “Hitler also liked using pigtailed propaganda girls” and “She is a prop and a tool for eco-communism. A propaganda icon that needs to be destroyed.” Of course, President Trump weighed in, posting a clip of her speech and commenting sarcastically, “She seems like a very happy young girl looking forward to a bright and wonderful future. So nice to see!”

But despite the volume and vitriol of the attacks directed her way, it’s vitally important that the worldview she represents and the policies she espouses are refuted. Like Rep. Alexandria Ocasio-Cortez (D–N.Y.), Sen. Elizabeth Warren (D–Mass.), and a host of other American politicians, Thunberg believes that we’ve only got a few years left to settle the fate of the planet, a basic tenet pushed by supporters of the Green New Deal and by most of the Democrats running for president. In fact, Thunberg thinks that “cutting our emissions in half in 10 years,” the target invoked by many environmentalists, is too little, too late. She avers that such a drastic reduction only

gives us a 50% chance of staying below 1.5 degrees [Celsius], and the risk of setting off irreversible chain reactions beyond human control.

Fifty percent may be acceptable to you. But those numbers do not include tipping points, most feedback loops, additional warming hidden by toxic air pollution or the aspects of equity and climate justice. They also rely on my generation sucking hundreds of billions of tons of your CO2 out of the air with technologies that barely exist.

So a 50% risk is simply not acceptable to us—we who have to live with the consequences.

Such catastrophic thinking is similar to AOC’s equally apocalyptic statement that “The world is gonna end in 12 years” and Warren’s contention that “we’ve got, what, 11 years, maybe” to cut our emissions in half to save the planet. As Reason‘s Ronald Bailey has documented, such predictions stem from a fundamental misreading of a 2018 report from the Intergovernmental Panel on Climate Change (IPCC). That report offered up predictions in the growth of global economic activity, how it might be affected by climate change, and how reducing greenhouse gases might increase planetary GDP. It did not specify anything like a 10- to 12-year window after which extinction or amelioration is inevitable. Writes Bailey:

If humanity does nothing whatsoever to abate greenhouse gas emissions, the worst-case scenario is that global GDP in 2100 would be 8.2 percent lower than it would otherwise be.

Let’s make those GDP percentages concrete. Assuming no climate change and an global real growth rate of 3 percent per year for the next 81 years, today’s $80 trillion economy would grow to just under $880 trillion by 2100. World population is likely to peak at around 9 billion, so divvying up that GDP suggests that global average income would come to about $98,000 per person. Under the worst-case scenario, global GDP would only be $810 trillion and average income would only be $90,000 per person.

“There is no looming climate change ‘expiration date,'” writes Bailey, a point underscored by Bjorn Lomborg, president of the Copenhagen Consensus Center, which promotes cost-effective policies to remediate climate change, hunger, disease, and other global issues. Lomborg notes that the IPCC itself

has found the evidence does not support claims that floods, droughts and cyclones are increasing.

The scientists have said, “there is low confidence in a global-scale observed trend” in drought, a “lack of evidence regarding the sign of trend in the magnitude and/or frequency of floods on a global scale” and “no significant observed trends in global (cyclone) frequency over the past century.”

What’s more, the scientists have found that current human-caused global warming cannot reasonably be linked to any of these extreme weather phenomenon-“globally, there is low confidence in attribution of changes in (cyclone) activity to human influence”, “low confidence in detection and attribution of changes in drought” and low confidence “that anthropogenic climate change has affected the frequency and magnitude of floods”. This doesn’t mean there is no problem－just that the facts matter.

There are only better and worse ways to deal with coming changes. Contra Thunberg, the better ways don’t demonize economic growth as a problem but as a solution. “The most inexorable feature of climate-change modeling isn’t the advance of the sea but the steady economic growth that will make life better despite global warming,” writes science journalist Will Boisvert. The environmental Kuznets curve, by which countries get wealthier and their citizens demand a cleaner environment, is the rule, not the exception. Such a dynamic is predicated upon economic and technological innovation that would be almost impossible under the sort of regulations promulgated by Green New Dealers and activists such as Thunberg and Naomi Klein, who wants to “decimate the entire neoliberal project” in the name of environmentalism. Environmental commons tend to deteriorate as countries begin to develop economically—but once per-capita income reaches a certain level, the public starts to demand a cleanup. It’s a U-shaped pattern: Economic growth initially hurts the environment, Bailey reminds us,

but after a point it makes things cleaner. By then, slowing or stopping economic growth will delay environmental improvement, including efforts to mitigate the problem of man-made global warming.

Greta Thunberg’s histrionics are likely heartfelt but neither they nor the deplorable responses they conjure are a guide forward to good environmental policy in a world that is getting richer every day. For the first time in human history, half the earth’s population is middle class or wealthier and the rate of deaths from natural disasters is well below what it was even a few decades ago. Protecting all that is just as important as protecting the environment and, more importantly, those two goals are hardly mutually exclusive.

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Breaking–Professor Mila Sohoni on Article III and the “Universal” Injunction

This is a big week for everyone interested in the debate over the scope of injunctions against the federal government, because Professor Mila Sohoni of the University of San Diego Law School has just posted her forthcoming article in the Harvard Law Review called The Lost History of the “Universal” Injunction. I’m delighted to offer the readers of the Volokh Conspiracy an entry point for Mila’s argument, a post from the author herself! From Mila:

In several recent cases, the district courts have issued injunctions that stop the executive branch from enforcing federal laws, regulations, or policies not just against the plaintiffs, but against non-plaintiffs, too. In his concurrence inTrump v. Hawaii, Justice Clarence Thomas (citing heavily to an influential article by the Volokh Conspiracy’s own Sam Bray) contended that such injunctions are a “recent development” and that they depart from “American courts’ tradition of providing equitable relief only to parties.” Justice Thomas also urged the Court to take up the question of whether such injunctions are proper under Article III, a suggestion that Vice-President Pence and Attorney General William Barr have since echoed.

In a recently posted draft article, The Lost History of the ‘Universal’ Injunction, 133 Harvard Law Review (forthcoming 2020), I show that Article III courts have issued injunctions that extend beyond just the plaintiff for well over a century. Drawing on decisions by courts at all three levels of the federal judicial hierarchy and on cases involving both state and federal law, I argue that Article III does not forbid injunctions that reach beyond just the plaintiffs.

Let us divide these injunctions into buckets. In the first bucket are those ordered by the Supreme Court concerning federal laws. The Supreme Court itself issued a universal nationwide injunction in 1913, in the months preceding Lewis Publishing Co. v. Morgan, when it enjoined a federal statute affecting newspapers from being enforced not just against the two plaintiff publications but also against “other newspaper publishers” pending its decision in that case. In the following decade, the Court issued two other preliminary injunctions that barred the enforcement of federal laws beyond the plaintiffs (though not universally) within a single, critical judicial district, in the run-up to its decisions in Hill v. Wallace (1921) and Chicago Board of Trade v. Olsen (1923). In one of those cases (Hill), it specified that similarly broad final relief should issue.

In the second bucket are injunctions by lower federal courts concerning state laws.  At least as far back as 1916, three-judge federal courts issued injunctions against the enforcement of state laws that reached beyond the plaintiffs in those suits. When the state defendants appealed these decrees to the Supreme Court, the Court on several occasions affirmed the lower court’s injunction, and sometimes did so in single-sentence, unanimous, per curiam decisions. In one famous instance — Pierce v. Society of Sisters(1925) — the Court affirmed a universal injunction that barred the enforcement of the Oregon compulsory public-schooling law at issue in that case in a landmark precedent that remains good law to this day. Two other well-known examples are Hague v. CIO (1939) and West Virginia Board of Education v. Barnette (1943), the first of which affirmed an injunction that protected non-plaintiffs in a case concerning municipal law and the second of which did the same in a case concerning state law. A less well-known instance is Langer v. Grandin (292 U.S. 605 (1934)), in which the Court affirmed per curiam an interlocutory injunction barring the governor of North Dakota from exercising authority conferred by a state law to impose embargoes on sales of agricultural products out of the state.

Finally, there is the third bucket: the universal injunction against federal agency action. In 1939, the D.C. Circuit in Lukens Steel v. Perkins enjoined Cabinet-level officers from effectuating a minimum-wage determination for government contractors as to the entire steel and iron industries in a suit brought by a handful of steel companies. When the Court took up the case in Perkins v. Lukens Steel (1940) the Court held that the plaintiffs lacked standing and were thus not entitled to seek any kind of relief; the steel companies’ suit, the Court held, “contains no semblance of these elements which go to make up a litigable controversy as our law knows the concept.” The Perkins Court emphasized that the D.C. Circuit’s injunction had greatly interfered with executive action, observing that “[i]n this vital industry, by action of the [D.C. Circuit], the [Walsh-Healey] Act has been suspended and inoperative for more than a year.” But the Perkins Court did not hold—or even say in dictum—that a universal injunction against federal agency action was categorically inappropriate or that it would be improper in suits brought by parties that had standing or in suits that did implicate private rights. To the contrary, the Perkins Court took care to note that the steel companies’ suit involved neither “regulatory power over private business or employment,” nor an official action that “invade[d] private rights in a manner amounting to a tortious violation,” and to distinguish cases that did—including Pierce, which had affirmed a universal injunction as to a state law.

This history of non-plaintiff protective injunctions spans many years, many courts, and many kinds of cases, but its implications for the Article III analysis are straightforward. Federal courts may issue injunctions that protect non-plaintiffs. Article III confers a singular judicial power upon federal courts to decide “cases … in equity.” It does not allocate different types of equitable remedial power to courts at different levels of the federal judicial hierarchy. It does not distinguish between injunctions that reach a single district, a single circuit, or every circuit. It does not distinguish between injunctions affecting enforcement of state laws and injunctions affecting enforcement of federal laws. If the Supreme Court can issue a universal injunction against enforcement of a federal law in a suit by a single plaintiff, then so can a federal district court as an Article III matter. If a federal district court can issue a universal injunction against enforcement of a state law in a suit by a single plaintiff, a federal district court must also have the power to issue such an injunction against enforcement of a federal law as an Article III matter. There is only one “judicial power,” and that power includes the power to issue injunctions that protect those who are not plaintiffs.

This history also has implications for our understanding of the nature of judicial review and its development.* As Amanda Frost has noted, the current debate over the universal injunction is as much a debate over the proper role of the federal courts as it is a debate over the scope of equitable remedies: “Are courts primarily intended to resolve disputes between the parties, or do they also declare the meaning of federal law for everyone?” To Justice Thomas, the answer is rooted in the historical practice of federal courts: “For most of our history, courts understood judicial power as ‘fundamental[y] the power to render judgments in individual cases.'” But by mapping the longer lineage of the universal injunction, my draft shows that, in the period from 1890 to 1943, the law-declaration model animated and guided the actions of federal courts of all stripes as they issued decrees in cases implicating myriad questions of public law. Expanding the frame of our inquiry even this much reveals that the injunction that reaches beyond the plaintiffs—and the law-declaration model of the judicial power that this remedy implies—is not some late-blooming efflorescence of post-Warren Court judicial hubris. Rather, it is a tool that developed in tandem with, and in support of, the regime of routinized judicial review of the legality of state and federal official action that we continue to live under to this day.

Last but not least, I’m very grateful to Sam Bray for his courteous invitation to post about this draft here at the Volokh Conspiracy. I am also indebted to him for his helpful engagement with an earlier draft of this article. Notwithstanding our different perspectives on the subject, Sam could not have been a more gracious interlocutor.

* This history, as well as other materials, also has significance for how we should understand the Administrative Procedure Act, which was not enacted until 1946; I take up that matter in a separate article (“The Power to Vacate a Rule”), which is forthcoming in 2020 in the Annual Review of Administrative Law issue of the George Washington Law Review.

 

 

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Breaking–Professor Mila Sohoni on Article III and the “Universal” Injunction

This is a big week for everyone interested in the debate over the scope of injunctions against the federal government, because Professor Mila Sohoni of the University of San Diego Law School has just posted her forthcoming article in the Harvard Law Review called The Lost History of the “Universal” Injunction. I’m delighted to offer the readers of the Volokh Conspiracy an entry point for Mila’s argument, a post from the author herself! From Mila:

In several recent cases, the district courts have issued injunctions that stop the executive branch from enforcing federal laws, regulations, or policies not just against the plaintiffs, but against non-plaintiffs, too. In his concurrence inTrump v. Hawaii, Justice Clarence Thomas (citing heavily to an influential article by the Volokh Conspiracy’s own Sam Bray) contended that such injunctions are a “recent development” and that they depart from “American courts’ tradition of providing equitable relief only to parties.” Justice Thomas also urged the Court to take up the question of whether such injunctions are proper under Article III, a suggestion that Vice-President Pence and Attorney General William Barr have since echoed.

In a recently posted draft article, The Lost History of the ‘Universal’ Injunction, 133 Harvard Law Review (forthcoming 2020), I show that Article III courts have issued injunctions that extend beyond just the plaintiff for well over a century. Drawing on decisions by courts at all three levels of the federal judicial hierarchy and on cases involving both state and federal law, I argue that Article III does not forbid injunctions that reach beyond just the plaintiffs.

Let us divide these injunctions into buckets. In the first bucket are those ordered by the Supreme Court concerning federal laws. The Supreme Court itself issued a universal nationwide injunction in 1913, in the months preceding Lewis Publishing Co. v. Morgan, when it enjoined a federal statute affecting newspapers from being enforced not just against the two plaintiff publications but also against “other newspaper publishers” pending its decision in that case. In the following decade, the Court issued two other preliminary injunctions that barred the enforcement of federal laws beyond the plaintiffs (though not universally) within a single, critical judicial district, in the run-up to its decisions in Hill v. Wallace (1921) and Chicago Board of Trade v. Olsen (1923). In one of those cases (Hill), it specified that similarly broad final relief should issue.

In the second bucket are injunctions by lower federal courts concerning state laws.  At least as far back as 1916, three-judge federal courts issued injunctions against the enforcement of state laws that reached beyond the plaintiffs in those suits. When the state defendants appealed these decrees to the Supreme Court, the Court on several occasions affirmed the lower court’s injunction, and sometimes did so in single-sentence, unanimous, per curiam decisions. In one famous instance — Pierce v. Society of Sisters(1925) — the Court affirmed a universal injunction that barred the enforcement of the Oregon compulsory public-schooling law at issue in that case in a landmark precedent that remains good law to this day. Two other well-known examples are Hague v. CIO (1939) and West Virginia Board of Education v. Barnette (1943), the first of which affirmed an injunction that protected non-plaintiffs in a case concerning municipal law and the second of which did the same in a case concerning state law. A less well-known instance is Langer v. Grandin (292 U.S. 605 (1934)), in which the Court affirmed per curiam an interlocutory injunction barring the governor of North Dakota from exercising authority conferred by a state law to impose embargoes on sales of agricultural products out of the state.

Finally, there is the third bucket: the universal injunction against federal agency action. In 1939, the D.C. Circuit in Lukens Steel v. Perkins enjoined Cabinet-level officers from effectuating a minimum-wage determination for government contractors as to the entire steel and iron industries in a suit brought by a handful of steel companies. When the Court took up the case in Perkins v. Lukens Steel (1940) the Court held that the plaintiffs lacked standing and were thus not entitled to seek any kind of relief; the steel companies’ suit, the Court held, “contains no semblance of these elements which go to make up a litigable controversy as our law knows the concept.” The Perkins Court emphasized that the D.C. Circuit’s injunction had greatly interfered with executive action, observing that “[i]n this vital industry, by action of the [D.C. Circuit], the [Walsh-Healey] Act has been suspended and inoperative for more than a year.” But the Perkins Court did not hold—or even say in dictum—that a universal injunction against federal agency action was categorically inappropriate or that it would be improper in suits brought by parties that had standing or in suits that did implicate private rights. To the contrary, the Perkins Court took care to note that the steel companies’ suit involved neither “regulatory power over private business or employment,” nor an official action that “invade[d] private rights in a manner amounting to a tortious violation,” and to distinguish cases that did—including Pierce, which had affirmed a universal injunction as to a state law.

This history of non-plaintiff protective injunctions spans many years, many courts, and many kinds of cases, but its implications for the Article III analysis are straightforward. Federal courts may issue injunctions that protect non-plaintiffs. Article III confers a singular judicial power upon federal courts to decide “cases … in equity.” It does not allocate different types of equitable remedial power to courts at different levels of the federal judicial hierarchy. It does not distinguish between injunctions that reach a single district, a single circuit, or every circuit. It does not distinguish between injunctions affecting enforcement of state laws and injunctions affecting enforcement of federal laws. If the Supreme Court can issue a universal injunction against enforcement of a federal law in a suit by a single plaintiff, then so can a federal district court as an Article III matter. If a federal district court can issue a universal injunction against enforcement of a state law in a suit by a single plaintiff, a federal district court must also have the power to issue such an injunction against enforcement of a federal law as an Article III matter. There is only one “judicial power,” and that power includes the power to issue injunctions that protect those who are not plaintiffs.

This history also has implications for our understanding of the nature of judicial review and its development.* As Amanda Frost has noted, the current debate over the universal injunction is as much a debate over the proper role of the federal courts as it is a debate over the scope of equitable remedies: “Are courts primarily intended to resolve disputes between the parties, or do they also declare the meaning of federal law for everyone?” To Justice Thomas, the answer is rooted in the historical practice of federal courts: “For most of our history, courts understood judicial power as ‘fundamental[y] the power to render judgments in individual cases.'” But by mapping the longer lineage of the universal injunction, my draft shows that, in the period from 1890 to 1943, the law-declaration model animated and guided the actions of federal courts of all stripes as they issued decrees in cases implicating myriad questions of public law. Expanding the frame of our inquiry even this much reveals that the injunction that reaches beyond the plaintiffs—and the law-declaration model of the judicial power that this remedy implies—is not some late-blooming efflorescence of post-Warren Court judicial hubris. Rather, it is a tool that developed in tandem with, and in support of, the regime of routinized judicial review of the legality of state and federal official action that we continue to live under to this day.

Last but not least, I’m very grateful to Sam Bray for his courteous invitation to post about this draft here at the Volokh Conspiracy. I am also indebted to him for his helpful engagement with an earlier draft of this article. Notwithstanding our different perspectives on the subject, Sam could not have been a more gracious interlocutor.

* This history, as well as other materials, also has significance for how we should understand the Administrative Procedure Act, which was not enacted until 1946; I take up that matter in a separate article (“The Power to Vacate a Rule”), which is forthcoming in 2020 in the Annual Review of Administrative Law issue of the George Washington Law Review.

 

 

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Move Over, Russia: Impeachment Talk Now Turns on Trump Dealings With Ukraine

Impeachment is coming, impeachment is coming! We’ve been hearing that for so long and with such profoundly unearned certainty that it’s no wonder such assurances are now greeted with all the gravitas of Henny Penny squawking. Still, this time it really is different, pundits say.

I am still not inclined to believe them. (And from the sound of yesterday’s Reason podcast, neither are my colleagues.) But at this point, simply ignoring the proximate cause for the latest impeachment predictions—President Donald Trump’s purported request for Ukraine to investigate Joe Biden’s son’s business dealings there—no longer seems like an option. Since there’s potential badness for both Democrats and Republicans to latch on to, both sides seem determined to make sure this story has legs.

So, here’s a quick—and nonpartisan—rundown of what has happened, what’s at stake, and what folks are saying about it.

Hunter Biden did have some potentially shady business dealings. As his dad was serving as vice president of the United States, the middle Biden child was brokering tight business relationships with state-associated companies in China and Ukraine, as part of work he was doing with John Kerry’s stepson, Christopher Heinz. On multiple occasions, Heinz and Biden’s business escapades coincided with their fathers meeting with (and sometimes being especially accommodating to) Chinese and Ukrainian leaders. “Of course, Trump would love to turn Hunter Biden into Hillary Clinton’s e-mails. So, there’s reasonable fear of giving too much oxygen to wild accusations,” writes Boston Globe columnist Joan Vennochi. “But you don’t have to work for Fox News to see legitimate concerns over Hunter Biden’s business dealings. In fact, you can read all about them in presumably friendly media outposts like The New Yorker and the New York Times.”

We have no evidence that Joe Biden was involved or acted improperly in service of his son. And the overlaps between Biden and Kerry statecraft and their sons’ work could also be explained in the exact reverse way from how critics are framing it. That is, perhaps the younger Biden and Heinz got the deals they did because their fathers were already seen by foreign leaders as allies.

“On the narrow question of whether Joe Biden used his position as vice president to push for the ouster of a Ukrainian prosecutor who was investigating a Ukrainian energy company that was paying Hunter Biden lots of money—there’s no credible evidence of that,” notes Vennochi. Yet “some State Department officials had expressed concern that Hunter Biden’s work in Ukraine could complicate his father’s diplomacy there,” as The New York Times put it. At the very least, this didn’t look good, and Republicans are right when they say it would likely be taken much more seriously if this were the Trump family, for example, not the Bidens.

Trump has been his typically bombastic and shady self about all of this. First, Trump keeps getting key details about the Hunter Biden situation wrong. Plus, Trump and his people keep flip-flopping about what the president said in his July 25 phone call with Ukrainian President Volodymyr Zelenskiy. We supposedly know about the phone call because a whistleblower filed a complaint with Intelligence Community Inspector General Michael Atkinson. A recent Trump tweet suggested the whistleblower is full of crap.

And yet, Trump lawyer Rudy Giuliani has admitted that he talked to the Ukrainian president about Biden. “As a brief review, we know that Giuliani…first denied, then admitted that he asked Ukraine to investigate Joe and Hunter Biden,” points out David French at National Review. “We also know that Giuliani then strongly implied that Trump himself requested that Ukraine investigate Biden, calling that the president ‘doing his job.'”

And Trump himself seemed to admit as much recently. He told reporters over the weekend:

The conversation I had was largely congratulatory, was largely corruption, all of the corruption taking place, was largely the fact that we don’t want our people, like Vice President Biden and his son, creating to the corruption already in the Ukraine.

The media has played typically loose with insinuations and dot-connecting. “About a week before he urged Ukraine’s president to investigate Hunter Biden, Trump told Mulvaney and others to halt aid,” tweeted Washington Post reporter Josh Dawsey with a link to a new article. “Eventually some feared decision could be illegal, and he was convinced to reverse.”

But the article itself elaborates that this wasn’t strictly or at all about the Bidens:

Republican senators on the Senate Appropriations Committee said Sept. 12 that the aid to Ukraine had been held up while the Trump administration explored whether Zelensky, the country’s new president, was pro-Russian or pro-Western. They said the White House decided to release the aid after Sen. Richard J. Durbin (D-Ill.) threatened to freeze $5 billion in Pentagon funding for next year unless the money for 2019 was distributed.

Or, as Axios put it: “There is no evidence that the release is tied to Trump’s calls for Ukraine to investigate Biden.”

Is it really so wrong to spend a little more time finding out if an administration is on our side before we sent them military aid? Or, as Trump told reporters Monday, “If you don’t talk about corruption, why would you give money to a country that you think is corrupt?”

We might hear more from the alleged whistleblower soon. Speaker Nancy Pelosi (D–Calif.) sent a letter Sunday to all members of Congress saying that this Thursday, the House Intelligence Committee will hear from Acting Director of National Intelligence Joseph Maguire and that, “at that time, we expect him to obey the law and turn over the whistleblower’s full complaint to the Committee. We also expect that he will establish a path for the whistleblower to speak directly to the House and Senate Intelligence Committees as required by law.”

Some top Democrats are saying this could really trigger impeachment proceedings. But for now, Pelosi seems to be taking things slow. “We must be sure that the President and his Administration are always conducting our national security and foreign policy in the best interest of the American people, not the President’s personal or political interest,” said Pelosi in her letter. “If the Administration persists in blocking this whistleblower from disclosing to Congress a serious possible breach of constitutional duties by the President, they will be entering a grave new chapter of lawlessness which will take us into a whole new stage of investigation.”

But we’re not there yet.

Basically, there are fools and liars on all sides. “Yes, there are already public voices racing beyond the facts to presume the worst about the (still unknown) whistleblower complaint and to presume the worst about (still unread) transcript of President Trump’s call with Ukrainian president Volodymyr Zelensky,” notes French.

But let’s be honest: What we know from Rudy Giuliani and from Trump himself is troubling, and it’s troubling enough that every conservative should be focused far more on discovering the truth than on reflexively defending the president.

It’s unclear whether this is bad or good for Biden. Sure, “Even if Trump is left standing, this latest development could finally doom Biden’s political career,” suggested Post opinion writer Ed Rogers. But the attention from Trump also seems to be rallying more Democrats around Biden, elevating him as a resistance leader facing unfair attacks.

FREE MINDS

Anti-abortion laws costing states millions…while funding abortion clinics. “In the past four years, taxpayers in states trying to restrict abortion access have paid almost $10 million in attorney fees for abortion providers,” The Washington Post reports. “That price tag is likely to keep growing as more abortion restrictions are challenged, including three in federal courts [on Monday].”

The states shelling out the most money were Texas ($2.3 million), Alabama ($1.7 million), Wisconsin ($1.6 million), North Carolina ($1 million), and Alaska ($995,000).

FREE MARKETS

Juul is facing a criminal investigation from the U.S. Department of Justice. For now, not much about the nature of the probe is known. “The investigation by the U.S. attorney’s office of the Northern District of California is in its early stages,” reported The Wall Street Journal yesterday.

A Juul spokesman had no immediate comment. The San Francisco company has said it never marketed to teens and that its products are intended for adult cigarette smokers who want to switch. A spokesman for the U.S. attorney’s office said he couldn’t confirm or deny an ongoing investigation.

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  • Bad news for Boris Johnson, the U.K.’s new leader:

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Move Over, Russia: Impeachment Talk Now Turns on Trump Dealings With Ukraine

Impeachment is coming, impeachment is coming! We’ve been hearing that for so long and with such profoundly unearned certainty that it’s no wonder such assurances are now greeted with all the gravitas of Henny Penny squawking. Still, this time it really is different, pundits say.

I am still not inclined to believe them. (And from the sound of yesterday’s Reason podcast, neither are my colleagues.) But at this point, simply ignoring the proximate cause for the latest impeachment predictions—President Donald Trump’s purported request for Ukraine to investigate Joe Biden’s son’s business dealings there—no longer seems like an option. Since there’s potential badness for both Democrats and Republicans to latch on to, both sides seem determined to make sure this story has legs.

So, here’s a brief—and nonpartisan—rundown of what’s at stake and what folks are saying about it.

Hunter Biden did have some potentially shady business dealings. As his dad was serving as vice president of the United States, the middle Biden child was brokering tight business relationships with state-run companies in China, Ukraine, and elsewhere, as part of the company he ran with John Kerry’s stepson, Christopher Heinz. On multiple occasions, Heinz and Biden’s business escapades coincided with their fathers meeting with (and sometimes being especially accommodating to) Chinese and Ukrainian leaders.

“Of course, Trump would love to turn Hunter Biden into Hillary Clinton’s e-mails. So, there’s reasonable fear of giving too much oxygen to wild accusations,” writes Boston Globe columnist Joan Vennochi. “But you don’t have to work for Fox News to see legitimate concerns over Hunter Biden’s business dealings. In fact, you can read all about them in presumably friendly media outposts like The New Yorker and the New York Times.”

We have no evidence that Joe Biden was involved or acted improperly in service of his son. And the overlaps between Biden and Kerry statecraft and their sons’ work could also be explained in the exact reverse way from how critics are framing it. That is, perhaps the younger Biden and Heinz got the deals they did because their fathers were already seen by foreign leaders as allies.

“On the narrow question of whether Joe Biden used his position as vice president to push for the ouster of a Ukrainian prosecutor who was investigating a Ukrainian energy company that was paying Hunter Biden lots of money—there’s no credible evidence of that,” notes Vennochi.

Yet “some State Department officials had expressed concern that Hunter Biden’s work in Ukraine could complicate his father’s diplomacy there,” as The New York Times put it. At the very least, this didn’t look good, and Republicans are right when they say it would likely be taken much more seriously if this were the Trump family, for example, not the Bidens.

Trump has been his typically bombastic and shady self about all of this. First, Trump keeps getting key details about the Hunter Biden situation wrong. Plus, Trump and his people keep flip-flopping about what the president said in his July 25 phone call with Ukrainian President Volodymyr Zelenskiy.

We supposedly know about the phone call because a whistleblower filed a complaint with Intelligence Community Inspector General Michael Atkinson. A recent Trump tweet suggested the whistleblower is full of crap.

And yet, Trump lawyer Rudy Giuliani has admitted that he talked to the Ukrainian president about Biden. “As a brief review, we know that Giuliani…first denied, then admitted that he asked Ukraine to investigate Joe and Hunter Biden,” points out David French at National Review. “We also know that Giuliani then strongly implied that Trump himself requested that Ukraine investigate Biden, calling that the president ‘doing his job.'”

And Trump himself seemed to admit as much recently. He told reporters over the weekend:

The conversation I had was largely congratulatory, was largely corruption, all of the corruption taking place, was largely the fact that we don’t want our people, like Vice President Biden and his son, creating to the corruption already in the Ukraine.”

The media has played typically loose with insinuations and dot-connecting. “About a week before he urged Ukraine’s president to investigate Hunter Biden, Trump told Mulvaney and others to halt aid,” tweeted Washington Post reporter Josh Dawsey with a link to a new article. “Eventually some feared decision could be illegal, and he was convinced to reverse.”

But the article itself elaborates that this wasn’t strictly or at all about the Bidens:

Republican senators on the Senate Appropriations Committee said Sept. 12 that the aid to Ukraine had been held up while the Trump administration explored whether Zelensky, the country’s new president, was pro-Russian or pro-Western. They said the White House decided to release the aid after Sen. Richard J. Durbin (D-Ill.) threatened to freeze $5 billion in Pentagon funding for next year unless the money for 2019 was distributed.

Or, as Axios put it: “There is no evidence that the release is tied to Trump’s calls for Ukraine to investigate Biden.”

Is it really so wrong to spend a little more time finding out if an administration is on our side before we sent them military aid? Or, as Trump told reporters Monday, “If you don’t talk about corruption, why would you give money to a country that you think is corrupt?”

We might hear more from the alleged whistleblower soon. Speaker Nancy Pelosi (D–Calif.) sent a letter Sunday to all members of Congress saying that this Thursday, the House Intelligence Committee will hear from Acting Director of National Intelligence Joseph Maguire and that, “at that time, we expect him to obey the law and turn over the whistleblower’s full complaint to the Committee. We also expect that he will establish a path for the whistleblower to speak directly to the House and Senate Intelligence Committees as required by law.”

Some top Democrats are saying this could really trigger impeachment proceedings. But for now, Pelosi seems to be taking things slow. “We must be sure that the President and his Administration are always conducting our national security and foreign policy in the best interest of the American people, not the President’s personal or political interest,” said Pelosi in her letter. “If the Administration persists in blocking this whistleblower from disclosing to Congress a serious possible breach of constitutional duties by the President, they will be entering a grave new chapter of lawlessness which will take us into a whole new stage of investigation.”

But we’re not there yet.

Basically, there are fools and liars on all sides. “Yes, there are already public voices racing beyond the facts to presume the worst about the (still unknown) whistleblower complaint and to presume the worst about (still unread) transcript of President Trump’s call with Ukrainian president Volodymyr Zelensky,” notes French.

But let’s be honest: What we know from Rudy Giuliani and from Trump himself is troubling, and it’s troubling enough that every conservative should be focused far more on discovering the truth than on reflexively defending the president.

It’s unclear whether this is bad or good for Biden. Sure, “Even if Trump is left standing, this latest development could finally doom Biden’s political career,” suggested Post opinion writer Ed Rogers. But the attention from Trump also seems to be rallying more Democrats around Biden, elevating him as a resistance leader facing unfair attacks.

FREE MINDS

Anti-abortion laws costing states millions…while funding abortion clinics. “In the past four years, taxpayers in states trying to restrict abortion access have paid almost $10 million in attorney fees for abortion providers,” The Washington Post reports. “That price tag is likely to keep growing as more abortion restrictions are challenged, including three in federal courts [on Monday].”

The states shelling out the most money were Texas ($2.3 million), Alabama ($1.7 million), Wisconsin ($1.6 million), North Carolina ($1 million), and Alaska ($995,000).

FREE MARKETS

Juul is facing a criminal investigation from the U.S. Department of Justice. For now, not much about the nature of the probe is known. “The investigation by the U.S. attorney’s office of the Northern District of California is in its early stages,” reported The Wall Street Journal yesterday.

A Juul spokesman had no immediate comment. The San Francisco company has said it never marketed to teens and that its products are intended for adult cigarette smokers who want to switch. A spokesman for the U.S. attorney’s office said he couldn’t confirm or deny an ongoing investigation.

QUICK HITS

  • Bad news for Boris Johnson, the U.K.’s new leader:

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8 Cases Everyone Should Know from the Hughes Court

Here is another preview of the 11-hour video library from our new book, An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know. This post will focus on cases from the Hughes Court.

O’Gorman & Young, Inc. v. Hartford Fire Insurance Co. (1931)

Stromberg v. California (1931)

Nebbia v. New York (1933)

Schechter Poultry Corp v. U.S. (1935)

Schechter Poultry Corp. v. U.S. (1935)

West Coast Hotel v. Parrish (1937)

NLRB v. Jones & Laughlin Steel Corp. (1937)

U.S. v. Carolene Products (1938)

U.S. v. Darby (1941)

 

You can also download the E-Book or stream the videos.

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8 Cases Everyone Should Know from the Hughes Court

Here is another preview of the 11-hour video library from our new book, An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know. This post will focus on cases from the Hughes Court.

O’Gorman & Young, Inc. v. Hartford Fire Insurance Co. (1931)

Stromberg v. California (1931)

Nebbia v. New York (1933)

Schechter Poultry Corp v. U.S. (1935)

Schechter Poultry Corp. v. U.S. (1935)

West Coast Hotel v. Parrish (1937)

NLRB v. Jones & Laughlin Steel Corp. (1937)

U.S. v. Carolene Products (1938)

U.S. v. Darby (1941)

 

You can also download the E-Book or stream the videos.

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Should You Be Able To Leave Facebook With All of Your Connections?

For all the apparent consensus about the need for action, the most striking feature of the “techlash” is how little agreement there is on the nature of the problem. Consider some of the complaints about just one company: that Facebook is a monopoly, that Facebook and Facebook-owned Instagram are addictive, that Facebook is making us miserable, that Facebook cannot be trusted with our data, that Facebook is unjustly profiting off our data, that Facebook has a left-wing bias, that Facebook has a right-wing bias, and that Facebook explains the election of Donald Trump.

Muddling matters further, the advocates of decisive action—say, breaking up Facebook—often invoke problems that their preferred solution would do nothing to address. Worse still: In many cases, trying to solve one problem will make another worse.

Consider the choice between prioritising privacy protection and allowing competition and innovation on the other. Internet companies’ misuse of personal data is often bundled together with complaints about monopoly power —privacy looms large in Facebook co-founder Chris Hughes’s case for breaking up the social media company, for example — but the two aren’t as connected as you might think. It’s possible to imagine an internet where strict rules closely guard data about our lives. It’s also possible to imagine an internet that is more open, more dynamic, and therefore a more hostile place for monopolists keen to limit competition and erect barriers to entry. But it is difficult to imagine an internet that is both. 

This tension is most apparent when it comes to data portability, the subject of a recent Facebook White Paper. For some of the most prominent voices calling for action on big tech, it’s essential to make it easier for people to move their data from one platform to another. More generally, the logic of the popular refrain that it is your data is that you should be able to do what you want with that data. But almost by definition, more portable data means less security. The E.U.’s extensive General Data Protection Regulation (GDPR) rules, which came into effect last year, include a “right to data portability.” Exactly what that right entails, and who it can be claimed against, remains unclear.

Professor Luigi Zingales, an economist at the University of Chicago, has argued for something more extensive: a right not just to your data, but to your “social graph”—a record of all your social connections online. That would make it easy for Facebook users to move to a new social network, boosting competition and counteracting the network effects that help put the tech giant in such a position of strength. Here’s how Zingales and his colleague Guy Rolnik explain it: “If we owned our own social graph, we could sign into a Facebook competitor—call it MyBook—and, through that network, instantly reroute all our Facebook friends’ messages to MyBook, as we reroute a phone call. If I can reach my Facebook friends through a different social network and vice versa, I am more likely to try new social networks. Knowing they can attract existing Facebook customers, new social networks will emerge, restoring the benefit of competition.”

Yet it was a more limited form of this openness, albeit for developers and at the discretion of Facebook, that led to the biggest scandal in the firm’s history—or at least its biggest fine. Access to users’ social graph was what made the Cambridge Analytica breach possible, and it set in motion a series of events that ended with a $5 billion penalty for the tech giant. Keen to be seen to have responded decisively to the Cambridge Analytica scandal, Facebook has since tightened access. Leading researchers have complained that the move has hampered research into social networks, reduced Facebook’s accountability for its actions, and—most importantly for this discussion—secured the firm’s market position. “Contrary to popular belief,” writes Axel Bruns, the president of the Association of Internet Researchers, “these changes are as much about strengthening Facebook’s business model of data control as they are about actually improving data privacy for users.” 

If you are a citizen of an E.U. member state and you want the right to export your social graph, don’t hold your breath. GDPR may give you a right to data portability, but anything more extensive would likely be in breach of your online acquaintances’ newly strengthened privacy rights. Whether or not it is the solution Zingales argues it is, European regulators have decided that privacy is more important.

Indeed, it has been more than a year since GDPR came into effect and the impact on online openness and innovation in Europe has been stark. One study found that the law caused the venture capital invested in E.U. startups to fall by as much as 50 percent. The reach of Google’s third-party ad and data tracking services has actually increased, and Facebook’s has declined only slightly; the smallest companies have taken a hit of more than 30 percent. In one survey, 55 percent of respondents said they had worked on deals that fell apart because of concerns about a target company’s compliance with GDPR. 

Far from being a decisive blow against big tech, the legislation so far appears to have cemented the tech giants’ dominant market positions. Some techlash.

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We Have Now Entered the Twilight Zone

American democracy, and the constitutional system that supports it, appear to be entering an especially dark and dangerous period.

Here’s what we know about Ukraine-gate:** a complaint was filed under the Intelligence Community Whistleblower Act (50 USC 3033) regarding a matter of “urgent concern”—defined in the statute as a “serious or flagrant problem, abuse, violation of law or Executive order, or deficiency relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the Director of National Intelligence involving classified information.”

**As is often the case, Lawfare has an outstanding analysis (by Robert Litt) of the legal background of this matter. Highly recommended.

The complaint was sent (as required by statute) to the Intelligence Community Inspector General (ICIG)—a presidential appointee, by the way.  The statute provides that the ICIG “shall determine whether the complaint or information appears credible,” after which he/she “shall transmit to the Director of National Intelligence a notice of that determination, together with the complaint …”

The ICIG apparently found that the complaint did, indeed, “appear[ ] credible,” and he sent it to the DNI.

The statute says what happens next:

Upon receipt of a transmittal from the Inspector General … the Director shall, within 7 calendar days of such receipt, forward such transmittal to the congressional intelligence committees, together with any comments the Director considers appropriate.  Sec 3033(k)(5)(C) (emphasis added).

This, as everyone knows, has not happened; perhaps we will hear more about the reasons for the Administration’s decision not to follow the statutory command when Acting DNI Joseph McGuire appears before Congress on Thursday.

It means that neither the public nor Congress knows what’s in the complaint, and if I were more confident that we (or at least our elected representatives) would find out soon enough, I’d shut up and wait to see what our president did or did not say.

But I am not confident about that, and the basic contours of what we do know (based both on reporting in the Times, the Wall Street Journal, and the Washington Post, and on the President’s own acknowledgment and defenses that he is already putting forward***) are chilling enough.  Apparently, in late July—at a time when his Administration was withholding (at Trump’s explicit direction) almost $400 million in already-appropriated funds targeted for the Ukrainian military—Trump initiated a call to the Ukrainian president, during which he suggested/encouraged, repeatedly, that the Ukrainians coordinate with his personal lawyer (and chief consigliere) and open an investigation into supposed improprieties committed by Joe Biden (on behalf of his son Hunter) when Biden was vice-president.

***See his comments to reporters yesterday:) “The conversation I had [with President Zelensky] was largely congratulatory, with largely corruption, all of the corruption taking place and largely the fact that we don’t want our people like Vice President Biden and his son creating to the corruption already in the Ukraine …” And today, he hammered again on the anti-corruption theme: “If you don’t talk about corruption, why would you give money to a country that you think is corrupt?”

This is an almost unimaginable breach of his duties as president: trading our taxpayer dollars for political dirt on his opponents, and conditioning critical US foreign policy decisions on a foreign government’s help in his campaign for re-election. This is not just a presidential candidate publicly asking for help from a foreign government (“Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing”), as terrible as that was. This is the President of the United States using the power that We, the People have placed in his hands for his personal benefit.

The “anti-corruption” defense is truly laughable, and anyone who thinks that Trump’s true concern here is with rooting out corruption in Ukraine is being taken for a ride; he cares as much about corruption in Ukraine as he does about corruption in Russia, in Saudi Arabia, in the Philippines, or in North Korea, viz. not a whit.

I doubt that the conversation contained an explicit quid pro quo; even Trump would not say “Investigate Biden and I’ll release the money” any more than John Gotti would say “Kill that S.O.B. and I will promote you through the ranks.”  But I can already hear the Trump faithful: “See?!  No collusion!! Just good old corruption-fighting!” And I have faith—or at least hope—that the American people will treat that story with the contempt it deserves.

Presidents cannot act this way. Five or ten years ago, that would have been stating the obvious; are we really debating it now? The US government is not the Trump Organization, and the executive branch is not the Mafia. If our governing principle is “the President can do whatever he damn well wants to,” we are in a very, very perilous state indeed.

Where are the Republicans who will stand up to him on this? Trump famously—and grotesquely—boasted during the campaign that he could gun someone down on Fifth Avenue in broad daylight and not lose any voters; I did not think that he was including members of the House and Senate in this appraisal. The Republicans hold the key here if we are to avoid turning a genuine national crisis into a partisan shitshow.  I have to believe that there are still some Republican office-holders who will finally say: This is over the line. And I have to believe that there are some Republican senators who will, should it come to an impeachment trial, actually listen to the evidence and cast their vote accordingly.

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