Fox News Crushes Prime-Time With Highest Ratings In 24-Year History
Fox News dominated the basic cable news industry in February, according to a new report, which specifies the conservative news network hit the highest ratings in its 24-year history.
Fox averaged 3.53 million viewers, followed by MSNBC’s 1.78 million, and CNN’s 1.05 million for the month.
Fox’s prime time hosts, Sean Hannity, Tucker Carlson, and Laura Ingraham, had the top shows in all of cable.
Hannity had the most-watched show, finishing the month with about 4.3 million viewers, while Carlson was second with 4.115 million and Ingraham third with 3.6 million.
Ingraham is the first woman in all of cable news to reach an average viewership of more than 3 million views on any given month.
Fox had 13 of the highest-rated shows for the month in all of cable.
Year-over-year trends show Fox’s viewership increased by 35% this month while CNN fell 3%, and MSNBC plunged 9%.
The increase in viewership for Fox suggests more and more people are turning off liberal media and gravitating towards conservative networks.
Fox is dominating all of cable news as its primary left-leaning competitors are imploding.
“CNN is suffering a credibility crisis as viewership is in a mass exodus, fleeing the fake news network to more conservative networks, such as Fox News. There appears to be no plan of action by CNN or liberal media to fix the hemorrhaging of viewership, indicating the trend will persist through 2020,” we noted several months ago.
Earlier today, the Supreme Court decided to take yet another case involving the Affordable Care Act (AKA Obamacare). By my count, this is the fourth time the Court has considered a case challenging the legality of some portion of the ACA. I agree with most of what co-blogger Jonathan Adler writes about the case here. As Jonathan indicates, the core argument made by the plaintiffs—that all of Obamacare should fall if the now-largely neutered individual health insurance mandate is unconstitutional—is badly wrong. I doubt there will be five votes on the Court for that position.
To briefly recap, this case arose because, in December 2017, the then-GOP-controlled Congress passed a tax reform law that zeroed out the monetary penalty attached to the Obamacare health insurance mandate, but left the mandate itself on the books. The ACA still officially has a provision requiring most Americans to purchase government-approved health insurance. But violators suffer no penalty if they choose not to follow this requirement.
In its controversial 2012 ruling in NFIB v. Sebelius, the Court narrowly rejected a previous challenge to the constitutionality of the mandate. But Chief Justice John Roberts’ controlling opinion for the Court only reached this conclusion by reinterpreting the mandate as a tax, thereby saving it from being declared unconstitutional.
After the 2017 tax reform bill eliminated the monetary penalty attached to the mandate, twenty red states filed a lawsuit arguing that what’s left of the mandate was no longer constitutional, because it could not be a tax, if it doesn’t raise any revenue. Much more controversially, they also contended that the rest of Obamacare must fall with the mandate, because the latter is such an important part of the statute that it cannot be “severed” from it.
The Supreme Court’s decision to hear the case cuts short what might have been prolonged further litigation in the lower courts. We will probably have a definitive resolution of the case sometime within the next year or so.
In my view, what’s left of the individual mandate is indeed now unconstitutional under Roberts’ reasoning in NFIB v. Sebelius, Unlike most other commentators, I think this part of the case is actually important. I explained the reasons why here.
But I certainly understand why nearly everyone else is focused almost exclusively on the severability question. That is what will decide the future of the ACA. The status of the residual mandate may be an important constitutional question, but it has little if any significance for the immediate future of health care policy.
On the severability issue, I think the plaintiffs are badly wrong. I explained the reasons why here, and in my analyses of the trial court ruling and the Fifth Circuit decision. There are a number of different plausible ways to address severability issues. But none of them can justify the conclusion that a virtually toothless mandate is somehow so essential to the ACA that it cannot be severed from the rest. Along with a cross-ideological group of other legal scholars, Jonathan Adler and I addressed this point in greater detail in two amicus briefs we have filed in the case (see here and here). We may well file an updated version in the Supreme Court.
Why did the Court decide to hear this case rather than follow the more usual procedure of letting the lower court reach a final decision on the key issue (in this case severability)? I think Jonathan is probably right to think that it’s because of the political importance of the issue rather than because the legal arguments are particularly strong. The justices may want to avoid prolonging the uncertainty about the future of the health care system that this litigation unavoidably causes so long as it continues.
Like Jonathan, I also doubt that the plaintiffs will prevail on the severability question, though it’s entirely possible they will win on the issue of whether the residual mandate is now unconstitutional. At the same time, I am not as confident about these conclusions as many other commentators seem to be.
The history of Obamacare litigation is littered with erroneous predictions by academics and other experts. I myself have a mixed track record in that regard.
In the original Obamacare litigation, I correctly predicted that the case on the constitutionality of the mandate would be a very close decision (at a time when many experts thought it would be a slam dunk for the Obama administration), but did not expect the administration’s tax argument to succeed, and also did not expect the plaintiff states to prevail on the Medicaid aspect of the case (even though I favored their position myself). In the present case, I was surprised by Judge O’Connor’s to embrace the plaintiffs’ severability claim, but the Fifth Circuit’s reluctance to do so was much more consistent with my expectations, as was both courts’ willingness to rule that the residual mandate is now unconstitutional.
Given this history, a degree of humility is in order. It would be foolish to ignore the possibility that I —and other commentators—might turn out to be wrong about some of our predictions again.
Regardless of how the case turns out, the Supreme Court’s decision to take it ensures that Obamacare—and the Trump administration’s support for the plaintiff states’ lawsuit—will be in the news more often during the 2020 election year. Political conventional wisdom suggests that is good news for the Democrats, as Trump’s and the GOP Congress’ inept efforts to repeal the law have helped make the ACA’s popularity great again—indeed, greater than it ever has been before.
NOTE: Although I have joined two amicus briefs in this case, the opinions expressed in this and other posts about it reflect only my own views, not necessarily those of the other scholars who joined the briefs.
This is also a good place to point out that I did not join these briefs because I am a fan of Obamacare. Much the contrary. I authored an amicus brief against the Obamacare individual mandate in the initial 2011-12 challenge to its constitutionality, and also wrote a coauthored book and variousarticles arguing that it and some other parts of the law are unconstitutional.
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Earlier today, the Supreme Court decided to take yet another case involving the Affordable Care Act (AKA Obamacare). By my count, this is the fourth time the Court has considered a case challenging the legality of some portion of the ACA. I agree with most of what co-blogger Jonathan Adler writes about the case here. As Jonathan indicates, the core argument made by the plaintiffs—that all of Obamacare should fall if the now-largely neutered individual health insurance mandate is unconstitutional—is badly wrong. I doubt there will be five votes on the Court for that position.
To briefly recap, this case arose because, in December 2017, the then-GOP-controlled Congress passed a tax reform law that zeroed out the monetary penalty attached to the Obamacare health insurance mandate, but left the mandate itself on the books. The ACA still officially has a provision requiring most Americans to purchase government-approved health insurance. But violators suffer no penalty if they choose not to follow this requirement.
In its controversial 2012 ruling in NFIB v. Sebelius, the Court narrowly rejected a previous challenge to the constitutionality of the mandate. But Chief Justice John Roberts’ controlling opinion for the Court only reached this conclusion by reinterpreting the mandate as a tax, thereby saving it from being declared unconstitutional.
After the 2017 tax reform bill eliminated the monetary penalty attached to the mandate, twenty red states filed a lawsuit arguing that what’s left of the mandate was no longer constitutional, because it could not be a tax, if it doesn’t raise any revenue. Much more controversially, they also contended that the rest of Obamacare must fall with the mandate, because the latter is such an important part of the statute that it cannot be “severed” from it.
The Supreme Court’s decision to hear the case cuts short what might have been prolonged further litigation in the lower courts. We will probably have a definitive resolution of the case sometime within the next year or so.
In my view, what’s left of the individual mandate is indeed now unconstitutional under Roberts’ reasoning in NFIB v. Sebelius, Unlike most other commentators, I think this part of the case is actually important. I explained the reasons why here.
But I recognize nearly everyone else is focused almost exclusively on the severability question. That is what will decide the future of the ACA. The status of the residual mandate is an important constitutional question, but it has little if any significance for the immediate future of health care policy.
On that issue, I think the plaintiffs are badly wrong. I explained the reasons why here, and in my analyses of the trial court ruling and the Fifth Circuit decision. There are a number of different plausible ways to address severability issues. But none of them can justify the conclusion that a virtually toothless mandate is somehow so essential to the ACA that it cannot be severed from the rest. Along with a cross-ideological group of other legal scholars, Jonathan Adler and I addressed this point in greater detail in two amicus briefs we have filed in the case (see here and here). We may well file an updated version in the Supreme Court.
Why did the Court decide to hear this case rather than follow the more usual procedure of letting the lower court reach a final decision on the key issue (in this case severability)? I think Jonathan is probably right to think that it’s because of the political importance of the issue rather than because the legal arguments are particularly strong. The justices may want to avoid prolonging the uncertainty about the future of the health care system that this litigation unavoidably causes so long as it continues.
Like Jonathan, I also doubt that the plaintiffs will prevail on the severability question, though it’s entirely possible they will win on the issue of whether the residual mandate is now unconstitutional. At the same time, I am not as confident about these conclusions as many other commentators seem to be.
The history of Obamacare litigation is littered with erroneous predictions by academics and other experts. I myself have a mixed track record in that regard.
In the original Obamacare litigation, I correctly predicted that the case on the constitutionality of the mandate would be a very close decision (at a time when many experts thought it would be a slam dunk for the Obama administration), but did not expect the administration’s tax argument to succeed, and also did not expect the plaintiff states to prevail on the Medicaid aspect of the case (even though I favored their position myself). In the present case, I was surprised by Judge O’Connor’s to embrace the plaintiffs’ severability claim, but the Fifth Circuit’s reluctance to do so was much more consistent with my expectations, as was both courts’ willingness to rule that the residual mandate is now unconstitutional.
Given this history, a degree of humility is in order. It would be foolish to ignore the possibility that I —and other commentators—might turn out to be wrong about some of our predictions again.
Regardless of how the case turns out, the Supreme Court’s decision to take it ensures that Obamacare—and the Trump administration’s support for the plaintiff states’ lawsuit—will be in the news more often during the 2020 election year. Political conventional wisdom suggests that is good news for the Democrats, as Trump’s and the GOP Congress’ inept efforts to repeal the law have helped make the ACA’s popularity great again—indeed, greater than it ever has been before.
NOTE: Although I have joined two amicus briefs in this case, the opinions expressed in this and other posts about it reflect only my own views, not necessarily those of the other scholars who joined the briefs.
This is also a good place to point out that I did not join these briefs because I am a fan of Obamacare. Much the contrary. I authored an amicus brief against the Obamacare individual mandate in the initial 2011-12 challenge to its constitutionality, and also wrote a coauthored book and variousarticles arguing that it and some other parts of the law are unconstitutional.
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In our modern world, information is power. We know all that. Whether if some information we find allows us to sleep at night, that´s a different question.
Technology has made readily available information we never thought could be possible. This has allowed the shaping of our society in ways we never imagined.
Under severe circumstances, those in control will take extreme measures to keep it. This is, has been, and very likely will continue being a norm. Losing control is the worst nightmare for politicians. They know, that once public law enforcement organizations have been overrun, they will be targeted. Should they have their conscience clean, that wouldn´t happen. But in every society of the world, with the extremely few exceptions, the norm seems to be these politicians don´t have it so clean. Therefore, they will do whatever they have to do, to avoid losing their grip.
How is China maintaining control?
Now let´s analyze Chinese idiosyncrasy. Their culture has been going on for thousands of years. They are right to be proud. Whether that strange and modern concept of “human rights” was respected, it´s not part of the equation. Poor people had “human” rights thousands of years ago? I am not by any means an expert in history; but I would say, most of the actual “empires” are on a basis of total lack of respect for individual rights.
How is it possible that 1.5 billion people are kept under control so they don´t take over the status quo? It´s a mystery for me. But the future is unpredictable and can be really surprising. Things can change. The only constant is change.
We never can underestimate how far the system can go, just to avoid that huge beast called “the masses” getting out of control. This being said, I am going to describe what is in the videos of the link I submit here. This is my personal opinion, strictly. I´m totally responsible.
Warning: The video has some strong violent scenes including female mistreating.
Expect violent measures
Never been in the military, but I know most of the uniformed forces all over the world some kind of protocol to counterattack every possible contingency. That is something great. Law-abiding citizens will applaud this. Including me of course. But things are different when the contingency is becoming increasingly…threatening.
And this is exactly what seems to be happening. The reactions are extremely violent. The actions are extreme, and it´s hard to understand, if everything is under control, then why this footage is online? Despite all the censorship? These are the dystopian methods used by a desperate government.
Remember, the doctor who first alerted about this outbreak was thrown in a corner to die. It was a plain death sentence. I don´t know in China, but in Venezuela, the time and effort needed to provide someone with the means to be a real, prepared and competent doctor in medicine (not like those posers in Cuba who just want to get off the island to ask for asylum and going to work in someone´s restaurant) is huge: 7 years, and 10 years with an specialty. This shameless contempt for human life, once the owner of such life decides to make a move against whatever affects the interests of the totalitarian regime in charge, is a trait that sooner or later will be the nemesis of such soulless machinery of propaganda, built to feed decadent bureaucrats. Those who have seen how creepy the uniformity of certain “party leadership” is, will understand perfectly what I intend to say.
Maybe some of those watching this video could understand the methodology.
I don´t, and please don´t ask me to do so. They act so violently, for being authorities, that one could think they seem to be on the verge of collective hysteria.
The video shows, in the first 20 seconds officers with masks dragging people out and immobilizing people on the floor. People are chased on the streets, by officers with sticks. Carried on hanging from legs and arms, by personnel with full-body hazmat suits.
An “officer” hits with both fists several times to a woman. Obviously he loses it after the woman reacts badly to his requests, and he starts throwing fists like a little girl. Shame on him.
Incredibly, a building gets its steel gates welded, shutting it closed for good. Officers in white hazmat suits barricade (on the outside!) a building gate. A pile of dirt and debris is found burying another gate. All of these buildings were suspicious of being infected with the disease.
Officers are seen fighting over people on the floor. They even kick the faces of some citizens. I know people can be annoying, but these officers don´t act like they´re controlling a disease: they look like thugs mobbing someone. I mean, how much time a trained officer lasts getting someone handcuffed? Dragging people on the streets is their idea of “crisis management”?
Another outrageous image is several people handcuffed, but chained by the waist to each other, just like circus monkeys. Jeez, I don´t even like monkeys being chained like that.
Desperate authorities are dangerous
Just to be clear, this is NOT a political article, God forbid it. This is a small exhibition of how the desperation of authorities can lead to very dangerous situations for us citizens. No matter where you are. Or even who you are.
Just imagine why I´m so concerned. I´m a foreigner in this country. The only person I care about, and the reason I am here, is a kid. I don´t have a fridge. I have to eat outside, or open a can otherwise.
Just think someday an outbreak makes its way here, and some sort of quarantine is enforced. What the heck am I going to do? Of course, I have some cans and water stored. A small couple of flashlights, and some other stuff. But I won´t be able to make it more than a week, and that is with luck.
What would happen if I have to defy the quarantine, get out the 7 blocks to the next supermarket, to buy some food (if there even is food left)…and a bunch of police throws me in a patrol car with other (possibly infected) guys?
If I never was exposed or contaminated, now I´m done. My only way to escape would be, to fight back (and with the risk they take my papers off me) and run. No one is going to get to look for me in any hospital or some other place. I would be on my own. (This book is an excellent guide to being prepared for quarantines so you can stay out of harm’s way.)
This is starting to be a situation that has been slowly occupying spaces in my mind. After all, 5 years ago I was sitting in my living room, enjoying a cold beer while playing videogames with my kiddo and torturing my annoying neighbors with the full power of my home theater.
5 months from here, God knows what will happen.
Do you see why I´m so concerned about this stuff? It´s amazing this has not made viral yet. The rest of the world (especially some countries in Latin America) seems not to give a f*** about the virus.
My brother-in-law is a really, really nice guy. I appreciate him a lot. I´m almost 20 years his senior but I see him as my (another) younger brother, indeed. He´s a simple man, a country boy now living in a huge city. Sent him the video and he said, immediately “Jose, this is serious. We will have to look for a place without so many people around! Your cottage would be the ideal place!! If you have some plan let me know.”
Thanks for your reading, and I look forward to your comments.
China Warns Of Looming “Locust Invasion” As Coronavirus Outbreak Fades
Is the world’s largest constitutionally atheist state facing a revival of the 10 biblical plagues of Egypt? It’s starting to look that way.
Just days after Beijing promised to send a a 1,000-duck “army” to Pakistan to help farmers fend off one of the largest locust swarms in decades, senior government officials warned that China could soon face an “invasion” of desert locusts and urged local authorities to prepare for battle, even as the country struggles to get back on its feet after being shut down for so long.
The locusts are reportedly approaching China via Pakistan and India. Swarms could enter Tibet from Pakistan and India, or the southwestern province of Yunnan through Myanmar, depending on climate conditions, the notice said. Swarms could also fly across Kazakhstan and into China’s Xinjiang region, according to Reuters.
To be sure, the National Forestry and Grassland Administrations said on its website that the risk of the swarm entering China and attacking farms is “low”. But if the swarms do arrive, Beijing will be limited by a paucity of knowledge about the locusts’ migratory patterns and techniques to fight them (aside from the ducks, apparently).
Swarms could also attack the southwestern province of Yunnan via Myanmar. It all depends on climate conditions. Swarms could also fly across Kazakhstan and into China’s Xinjiang region.
Chinese customs officials at Khunjerab, a crossing between China and Pakistan in southwestern Xinjiang, have started monitoring the surrounding 2 km for locusts. They inspect vehicles crossing the border and, if they find locusts or locust eggs hidden, they destroy them.
The desert locusts have already ravaged crops and pastures in several countries in Africa, as well as India and Pakistan.
Thankfully, as we mentioned above, Beijing has a secret weapon:
Long-running MSNBC primetime host Chris Matthews announced his retirement during his show’s opening on Monday night—implicitly due to allegations of sexual harassment recently revisited by critics and purported victims, as well as scrutiny over his questioning of Sen. Elizabeth Warren (D–Mass.) and wariness of Sen. Bernie Sanders (I–Vt.).
“After conversations with MSNBC, I decided tonight would be my last Hardball,” said Matthews. “Compliments on a woman’s appearance that some men, including me, might have once incorrectly thought were okay, were never okay. Not then and certainly not today. And for making such comments in the past, I’m sorry.”
Chris Matthews announces — on a Monday — he’s retiring and that today’s “Hardball” will be the last.
"After my conversation with NBC, I decided tonight will be my last Hardball. I’ll tell you why. The younger generations are ready to take the reigns." pic.twitter.com/Y3HV9Qy35l
His resignation followed days of criticism from various corners of the internet: from female journalists taking note of his alleged history of making sexist remarks toward female guests, from those in Warren’s camp who thought his recent questioning of her was too sharp, and from Sanders supporters who took umbrage with a World War II analogy that was unflattering toward their candidate.
On Saturday, GQ‘s Laura Bassett noted that Matthews “has a pattern of making comments about women’s appearances in demeaning ways,” and listed several of the accusations: calling co-worker Erin Burnett a “knockout,” saying Sarah Palin was “very attractive,” and allegedly making sexually-charged comments about female guests on his show—including Bassett, who claimed that he once told a makeup artist to keep putting makeup on her because “I’ll fall in love with her.”
“This tendency to objectify women in his orbit has bled into his treatment of female politicians and candidates,” she wrote.
There’s enough here for a reasonable person to be perturbed, and Matthews himself admitted that he said things he should not have said. Even so, the sudden resignation shows the punitive power of a #MeToo movement that has often failed to draw important distinctions between genuinely disturbing behavior and mere boorishness.
Moreover, the other two recent criticisms of Matthews—his handling of Warren, and a comment about Sanders—were incredibly overblown. Indeed, the Warren episode is a great example of why some people are justifiably concerned that #MeToo overreach will render important and necessary conversations between men and women impossible.
After the South Carolina debate, Matthews grilled Warren over her contention that former New York City Mayor Michael Bloomberg, a rival for the 2020 Democratic presidential nomination, had told a pregnant female employee to “kill it.” Bloomberg denied making this remark, and Matthews pressed Warren to state whether she thought he was lying. Here was how Bassett framed this exchange:
MSNBC host Chris Matthews, whose long history of sexist comments and behavior have somehow not yet gotten him fired, tested the boundaries of his own misogyny again on Wednesday night. After the tenth Democratic presidential debate, the Hardball anchor grilled Elizabeth Warren about one of her lines of attack against Mike Bloomberg during the debate: that a pregnant female employee accused Bloomberg of telling her to “kill it.”
“You believe he’s lying?” Matthews asked Warren of Bloomberg’s denial.
“And why would he lie?” Matthews said. “Just to protect himself?”
“Yeah, and why would she lie?” Warren responded pointedly.
“I just wanna make sure you’re clear about this,” Matthews said. Right there on America’s purportedly liberal network, the anchor spoke to a 70-year-old United States senator who is running for president—and a renowned Harvard Law professor, no less—like she couldn’t possibly understand her own words, as if she were a child choosing between a snack now or dessert later.
Bassett implied that it was a misogynistic act and a betrayal of liberal values to scrutinize Warren here. But this is nonsense: Warren’s credibility is very much an issue. She has a long history of misrepresenting her family’s situation. And when her surrogates accused Sanders of privately warning Warren that a woman couldn’t win the presidency, CNN implicitly took her side and failed to press the issue with her. Rather than being criticized, Matthews should be applauded for actually forcing Warren to stand by her smears.
Anyone who suggests that harshly scrutinizing Warren is a form of sexism—on the same spectrum of behavior as commenting about women’s appearances—is undermining the #MeToo movement’s more praiseworthy goals. They are conflating sexual harassment with the sometimes uncomfortable but vitally important job of forcing politicians to own what they say. It’s not sexist to make Warren explain in detail what she believes, and the candidate is more than capable of holding her own in such situations.
The Sanders incident, while not framed as a harassment issue, was similarly silly. Matthews had stated on air that Sanders’s victory in the Nevada caucus called to mind Nazi Germany’s sudden and decisive victory over France in 1940. Matthews was thus accused of likening Sanders supporters to Nazis, but obviously his analogy was merely referencing one side’s overwhelming advantage over an opponent, and had nothing to do with the ideology of the Third Reich.
Matthews has a had a long career, and it may or may not have been the right day for him to retire. But at a time when his flaws are on full display, it’s also worth remembering his positive attributes. Matthews was one of the more principled anti-interventionists on television: a Democrat with an independent streak who often seemed to intuitively grasp the appeal of Donald Trump better than his cable news colleagues. And he was not afraid to call out incompetence on his own side, recently lamenting—correctly—that the Iowa caucus debacle made it look like the Democratic Party was incapable of organizing even a “three-car funeral.” Alas, as the entire left-of-center media quickly pivots to woke cultural signaling, there was no longer room for someone like him.
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In 2018, the Trump Administration declared that possession of “bump stocks” was illegal under federal law. This was a legally questionable move, but was apparently more politically palatable than imploring Congress to enact a bump stock ban. Nonetheless, in Guedes v. Bureau of Alcohol, Tobacco and Firearmsthe U.S. Court of Appeals for the D.C. Circuit upheld the Trump Administration’s action.
Today, the Supreme Court denied certiorari in Guedes v. BATF. There was no recorded dissent, but Justice Gorsuch wrote a brief statement on the cert denial that was quite critical of both the Administration’s action and the rationale of the D.C. Circuit’s opinion. Specifically, Justice Gorsuch raised an eyebrow at the abrupt change in the federal government’s interpretation of the applicable statute, questioned the D.C. Circuit’s conclusion that an agency could receive Chevron deference even if the agency affirmatively waived any Chevron claim, and reiterated his view that Chevron deference is inappropriate in the criminal law context.
Wrote Gorsuch:
Does owning a bump stock expose a citizen to a decade in federal prison? For years, the government didn’t think so. But recently the Bureau of Alcohol, Tobacco, Firearms and Explosives changed its mind. Now, according to a new interpretive rule from the agency, owning a bump stock is forbidden by a longstanding federal statute that outlaws the”possession [of] a machinegun.” 26 U. S. C. §5685(b), 18 U. S. C. §924(a)(2). Whether bump stocks can be fairly reclassified and effectively outlawed as machineguns under existing statutory definitions, I do not know and could not say without briefing and argument. Nor do I question that Congress might seek to enact new legislation directly regulating the use and possession of bump stocks. But at least one thing should be clear: Contrary to the court of appeals’s decision in this case, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. 467 U. S. 837 (1984), has nothing to say about the proper interpretation of the law before us.
In the first place, the government expressly waived reliance on Chevron. The government told the court of appeals that, if the validity of its rule (re)interpreting the machinegun statute “turns on the applicability of Chevron, it would prefer that the [r]ule be set aside rather than upheld.” 920 F. 3d 1, 21 (CADC 2019) (Henderson, J., concurring in part and dissenting in part) (noting concession). Yet, despite this concession, the court proceeded to upholdthe agency’s new rule only on the strength of Chevron deference. Think about it this way. The executive branch and affected citizens asked the court to do what courts usuallydo in statutory interpretation disputes: supply its best independent judgment about what the law means. But, instead of deciding the case the old-fashioned way, the court placed an uninvited thumb on the scale in favor of the government.
That was mistaken. This Court has often declined to apply Chevron deference when the government fails to invoke it. . . . Even when Chevron deference is sought, this Court has found it inappropriate where “the Executive seems of two minds” about the result it prefers. . . . Nor is it a surprise that the government can lose the benefit of Chevron in situations like these and ours. If the justification for Chevron is that “‘policy choices’ should be left to executive branch officials ‘directly accountable to the people,'” . . . then courts must equally respect the Executive’s decision not to make policy choices in the interpretation of Congress’s handiwork.
I would actually go farther than Justice Gorsuch here. Under SEC v. Chenery, an agency action may only be upheld on the rationale relied upon by the agency. Therefore if the agency did not conclude that the statute was ambiguous and did not make an affirmative decision to resolve the ambiguity in a particular fashion, then the agency’s action should not be upheld on that basis.
The underlying logic of Chevron, as interpreted and expounded upon in subsequent cases such as Mead, reinforces this conclusion. As I explain in my essay “Restoring Chevron‘s Domain,”Chevron deference is premised upon the idea that Congress has delegated to an agency the power to resolve an ambiguity in the statute at issue. Moreover, as Mead and related cases make explicit, for an agency to take advantage of such deference, it must actually exercise the power that Congress delegated in the course of reaching and declaring its interpretation of the statute. Thus it should follow that if an agency does not seek to exercise such delegated power, and disavows any reliance upon Chevron, then Chevron deference should not be available.
Gorsuch goes on:
To make matters worse, the law before us carries the possibility of criminal sanctions. And, as the government itself may have recognized in offering its disclaimer, whatever else one thinks about Chevron, it has no role to play when liberty is at stake. Under our Constitution, “[o]nly the people’s elected representatives in the legislature are authorized to ‘make an act a crime.'” United States v. Davis, 588 U. S. ___, ___ (2019) . . . . Before courts may send people to prison, we owe them an independent determination that the law actually forbids their conduct. A “reasonable” prosecutor’s say-so is cold comfort in comparison.That’s why this Court has “never held that the Government’s reading of a criminal statute is entitled to any deference.” United States v. Apel, 571 U. S. 359, 369 (2014). Instead, we have emphasized, courts bear an “obligation” to determine independently what the law allows and forbids. . . . That obligation went unfulfilled here.
I understand Justice Gorsuch’s disquiet with the application of Chevron to statutes that impose criminal penalties, but denying Chevron deference in such cases is not so simple. The U.S. Code is filled with regulatory statutes with provisions that may be applied both civilly and criminally. It would be quite odd to conclude that these provisions can have one meaning when applied by an agency to a civil violation, but another when applied in a criminal context. Thus to deny Chevron deference where criminal sanctions are on the table would be, in effect, to deny Chevron deference across a wide range of subject matter, if not to throw Chevron out altogether. As I am not (yet) convinced Chevron deference is at the root of the problems with the administrative state, I am not convinced this is the wisest course.
Gorsuch continues:
Chevron‘s application in this case may be doubtful for other reasons too. The agency used to tell everyone that bump stocks don’t qualify as “machineguns.” Now it says the opposite. The law hasn’t changed, only an agency’s interpretation of it. And these days it sometimes seems agencies change their statutory interpretations almost as often as elections change administrations. How, in all this, can ordinary citizens be expected to keep up—required not only to conform their conduct to the fairest reading of the law they might expect from a neutral judge, but forced to guess whether the statute will be declared ambiguous; to guess again whether the agency’s initial interpretation of the law will be declared “reasonable”; and to guess again whether a later and opposing agency interpretation will also be held “reasonable”? And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?
Despite these concerns, I agree with my colleagues that the interlocutory petition before us does not merit review. The errors apparent in this preliminary ruling might yet be corrected before final judgment. Further, other courts of appeals are actively considering challenges to the same regulation. Before deciding whether to weigh in, we would benefit from hearing their considered judgments—provided, of course, that they are not afflicted with the same problems. But waiting should not be mistaken for lack of concern.
Indeed, while the Court did not take this case, it could well take another raising similar issues, if not one actually challenging the bump stock ban itself. To be continued.
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The Creepy Line is a particularly sinister term used in an unguarded remark by former Google CEO Eric Schmidt in 2010. In hindsight, what is most disturbing about the comment is how casually he explained Google’s policy regarding invading the privacy of its customers and clients.
“Google policy on a lot of these things,” Schmidt says about 45 seconds into the introduction, “is to get right up to the creepy line and not cross it.” Time pointer needed.
For now, it is available for free at Amazon Prime, but I’m not sure how long it will be offered there considering many current concerns regarding censorship of anti-establishment themes on various social media platforms.
This film offers a very frank look at the number one source of news in our country: Facebook and Google.
Early in the film, you will discover how Google acquired an enormous and permanent cache of data about users. Initially, the data was used to refine search algorithms used to help index the websites and information uploaded to the world wide web. Now, however, it is used to fine-tune ads and content that most suits your interests, storing the information to better provide content suggestions for you. But, this film will give you a really disquieting idea (at least it should) about what else they may be doing with that data.
Initially, Google was simply the most popular Search engine, basically the largest available “indexing” algorithm on the net. Then, Google came up with Google Chrome, a browser, to track and log not only what you look for but also where you go and every keystroke you make while there. In fact, Google realized they could serve you best if they know what you are doing even when offline, which is why the the Android system can track you everywhere you take your phone. With all the free apps available and used globally, Google has a very accurate picture of what everyone’s daily life looks like anywhere in the world.
At intervals during the presentation, Professor Jordan Peterson offers insight from his own experience with social media and agenda setting. For those unfamiliar with Peterson, he was propelled into fame when he very publicly refused to use the new gender pronouns approved by Canada’s Political Correct Policy. Peterson’s outspoken refusal to yield to the thought police led to him being interviewed as being a spokesman for the Millennial Mindset, especially their willingness to accept new technology without questioning it.
“These are all free services but obviously they’re not,” notes Peterson, during his commentary, as he discusses the impact upon his life his sudden notoriety and the negative publicity Google and You Tube caused for him. He discusses his own battle with depression as well as insights into his daughter’s experiences with social media, which gives him special psychiatric insight into teenage (millennial) angst, perhaps. Some may find his frank openness about the issues off-putting, but he comes across to me as a man who has walked through hell and doesn’t want to talk about it, but has decided he will do so, if you are interested. I find Peterson’s point of view extremely relevant, especially in light of the the news regarding Peak Prosperity’s de-platforming today and the implications for our own sources of information going forward.
He is not the main speaker during the film, but Peterson does an excellent job explaining how the surveillance business model works. This leads to a discussion of how Google Maps, Google Docs, and the use of Gmail (even drafts of emails you don’t send!) combine together to form and shape your thoughts and behavior, similar to a bunch of people in a control room with dials which monitor and control your every interaction with the world. (15:28)
Less than ten minutes into the movie, you might have already decided to turn to non-Google search engines, but there is no hope of your retrieving any information they already have on you. It belongs to them, a legal point discussed several times during the presentation.
We already know Facebook censors conservative views and downplays trending stories favorable to conservatives, and the movie assures us Google and You Tube work on similar algorithms. Algorithmic choices must be based on something, but to remain supposedly objective, nothing should be completely filtered out, only put into some sort of rational order. Rational could be chronological, or most viewed, or relevant, for instance, but for that rational variable in the algorithm, something will come first.
As long as nothing is excluded, albeit, as long as you can find them on the list somewhere, there is at least a rational reason for their placement and the semblance of objectivity is retained. Whether you agree with the rationality is not relevant at this point. Except, that we know filters are restricting information for very irrational reasons.
In the discussion, we discover Facebook Social Engineers insert stories into news feeds which they want people to see. This means not only is Facebook a gatekeeper for your news, they are also propaganda pushers. The concerns that Facebook could easily influence elections by sending messages to certain types of individuals most likely to be influenced deserves at least some discussion by some governmental agency, doesn’t it?
Well? the discussion with Zuckerberg during the film shows his disregard for users’ privacy concerns. That CYA attitude is obvious throughout when we are reminded of all the “terms of use” we have agreed to over the years.
Facebook and these other internet entities claiming company rights without accountability are communities without voting citizens. Since the majority of voters claim to get their news from Facebook or Google associated sources, this is an issue people should realize really will impact our ability to use social media for reliable news. We have no access to details concerning how decisions are made regarding censorship on any of these platforms. We have every reason to believe they are not necessarily rational or definitely are not ethical. While Facebook seemed at one time to be a wonderful way to connect humanity across the world, it brought with that connection an overabundance of unintended consequences which may introduce a new Dark Age.
Google and Facebook are a kind of corporate partnership which has unprecedented power and influence over public opinion. Psychologist and Google critic Robert Epstein (a large contributor to the documentary) found that, by sheer coincidence, the day after he wrote an article called “Could Google Tilt a Close Election?” he couldn’t access the Internet through any browser. If you are time-constrained and hope for the meat of the matter, around the 34-minute point, Peterson discusses his reaction to Former Google CEO Eric Schmidt’s comment about getting close to the creepy line but not crossing it. He suggests cultures once taught children to stay away from the creepy line, but that somehow, digital capability has altered the understanding of what the creepy line represents.
The movie discusses the concepts behind Search Engine Manipulation Effect (SEME) which has powerful implications since 90% of searchers select the first on the list. At 38:30 a good introduction to the impact of Negativity Bias helps explain the ability to suppress ideas deemed “negative” in public opinion.
“If they have this kind of power then democracy is an illusion,” says Roger Epstein.
“There have to be in place numerous safeguards to make sure not only that they don’t exercise these powers but that they can’t exercise these powers.”
At 44:28, you will discover that the Federal Government runs on Google and when you learn how much of our nations classified data is trusted to Google, it should make most of us even more aware of our lapses in internet discernment in days gone by.
I believe, it is vital to note the film was made by the makers of “Clinton Cash.”
And Google executive Eric Schmidt, infamous for his “creepy line” comment, became part of the Clinton campaign in 2016 but by then, we’d all come to realize there was something a little creepy about Google, anyway, hadn’t we? While the video does provide a lot of anecdotal evidence with some scientific (social statistics) analysis to support the idea that internet gatekeepers introduce liberal bias, the evidence is sketchy about how internet platforms are monetized and what we might do to resist the influence these tech giants possess in our government institutions.
This is a discussion we should force our federal servants to have because those agencies have become part of the hiring grounds for big tech companies. They simply hire influence. It is a discussion we do need to have as we face the direction technology is pushing us toward: Artificial Intelligence (AI) and Artificially Intelligent Decisions.
Instead of War Games’ discovery there is no way to win, AI may decide nobody really has a need to know who won. Google got caught before favoring its own commercial services by antitrust regulators, which is discussed in the movie. Assuming those who control Google might very well show favor in politics is a valid worry when considering the ability of many of their hired “monitors” to delete or insert content based on their own bias at will. (The video discusses several known instances of this happening.)
Unfortunately, there is not an obvious solution, but one suggestion is that Google, Facebook, YouTube, et al be legally defined as media companies and be subject to the same legal burdens which apply to mainstream media corporations. In other words, the suggestion is that they be held accountable for their actions. These enormous companies have created algorithms that in turn have created sorting systems that attempt to direct and control (quite successfully) every aspect of our lives, without our even being fully aware of their impact on our decisions.
It is time we educate ourselves before we become “re-educated.”
Overall, I think The Creepy Line is a good way to begin a much needed public debate, but it is at least a way to get yourself educated a bit about why you should send a donation to The Burning Platform today and thank Jim Quinn for continuing to host a wide variety of contributors here at this page while he can.
Long-running MSNBC primetime host Chris Matthews announced his retirement during his show’s opening on Monday night—implicitly due to allegations of sexual harassment recently revisited by critics and purported victims, as well as scrutiny over his questioning of Sen. Elizabeth Warren (D–Mass.) and wariness of Sen. Bernie Sanders (I–Vt.).
“After conversations with MSNBC, I decided tonight would be my last Hardball,” said Matthews. “Compliments on a woman’s appearance that some men, including me, might have once incorrectly thought were okay, were never okay. Not then and certainly not today. And for making such comments in the past, I’m sorry.”
Chris Matthews announces — on a Monday — he’s retiring and that today’s “Hardball” will be the last.
"After my conversation with NBC, I decided tonight will be my last Hardball. I’ll tell you why. The younger generations are ready to take the reigns." pic.twitter.com/Y3HV9Qy35l
His resignation followed days of criticism from various corners of the internet: from female journalists taking note of his alleged history of making sexist remarks toward female guests, from those in Warren’s camp who thought his recent questioning of her was too sharp, and from Sanders supporters who took umbrage with a World War II analogy that was unflattering toward their candidate.
On Saturday, GQ‘s Laura Bassett noted that Matthews “has a pattern of making comments about women’s appearances in demeaning ways,” and listed several of the accusations: calling co-worker Erin Burnett a “knockout,” saying Sarah Palin was “very attractive,” and allegedly making sexually-charged comments about female guests on his show—including Bassett, who claimed that he once told a makeup artist to keep putting makeup on her because “I’ll fall in love with her.”
“This tendency to objectify women in his orbit has bled into his treatment of female politicians and candidates,” she wrote.
There’s enough here for a reasonable person to be perturbed, and Matthews himself admitted that he said things he should not have said. Even so, the sudden resignation shows the punitive power of a #MeToo movement that has often failed to draw important distinctions between genuinely disturbing behavior and mere boorishness.
Moreover, the other two recent criticisms of Matthews—his handling of Warren, and a comment about Sanders—were incredibly overblown. Indeed, the Warren episode is a great example of why some people are justifiably concerned that #MeToo overreach will render important and necessary conversations between men and women impossible.
After the South Carolina debate, Matthews grilled Warren over her contention that former New York City Mayor Michael Bloomberg, a rival for the 2020 Democratic presidential nomination, had told a pregnant female employee to “kill it.” Bloomberg denied making this remark, and Matthews pressed Warren to state whether she thought he was lying. Here was how Bassett framed this exchange:
MSNBC host Chris Matthews, whose long history of sexist comments and behavior have somehow not yet gotten him fired, tested the boundaries of his own misogyny again on Wednesday night. After the tenth Democratic presidential debate, the Hardball anchor grilled Elizabeth Warren about one of her lines of attack against Mike Bloomberg during the debate: that a pregnant female employee accused Bloomberg of telling her to “kill it.”
“You believe he’s lying?” Matthews asked Warren of Bloomberg’s denial.
“And why would he lie?” Matthews said. “Just to protect himself?”
“Yeah, and why would she lie?” Warren responded pointedly.
“I just wanna make sure you’re clear about this,” Matthews said. Right there on America’s purportedly liberal network, the anchor spoke to a 70-year-old United States senator who is running for president—and a renowned Harvard Law professor, no less—like she couldn’t possibly understand her own words, as if she were a child choosing between a snack now or dessert later.
Bassett implied that it was a misogynistic act and a betrayal of liberal values to scrutinize Warren here. But this is nonsense: Warren’s credibility is very much an issue. She has a long history of misrepresenting her family’s situation. And when her surrogates accused Sanders of privately warning Warren that a woman couldn’t win the presidency, CNN implicitly took her side and failed to press the issue with her. Rather than being criticized, Matthews should be applauded for actually forcing Warren to stand by her smears.
Anyone who suggests that harshly scrutinizing Warren is a form of sexism—on the same spectrum of behavior as commenting about women’s appearances—is undermining the #MeToo movement’s more praiseworthy goals. They are conflating sexual harassment with the sometimes uncomfortable but vitally important job of forcing politicians to own what they say. It’s not sexist to make Warren explain in detail what she believes, and the candidate is more than capable of holding her own in such situations.
The Sanders incident, while not framed as a harassment issue, was similarly silly. Matthews had stated on air that Sanders’s victory in the Nevada caucus called to mind Nazi Germany’s sudden and decisive victory over France in 1940. Matthews was thus accused of likening Sanders supporters to Nazis, but obviously his analogy was merely referencing one side’s overwhelming advantage over an opponent, and had nothing to do with the ideology of the Third Reich.
Matthews has a had a long career, and it may or may not have been the right day for him to retire. But at a time when his flaws are on full display, it’s also worth remembering his positive attributes. Matthews was one of the more principled anti-interventionists on television: a Democrat with an independent streak who often seemed to intuitively grasp the appeal of Donald Trump better than his cable news colleagues. And he was not afraid to call out incompetence on his own side, recently lamenting—correctly—that the Iowa caucus debacle made it look like the Democratic Party was incapable of organizing even a “three-car funeral.” Alas, as the entire left-of-center media quickly pivots to woke cultural signaling, there was no longer room for someone like him.
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In 2018, the Trump Administration declared that possession of “bump stocks” was illegal under federal law. This was a legally questionable move, but was apparently more politically palatable than imploring Congress to enact a bump stock ban. Nonetheless, in Guedes v. Bureau of Alcohol, Tobacco and Firearmsthe U.S. Court of Appeals for the D.C. Circuit upheld the Trump Administration’s action.
Today, the Supreme Court denied certiorari in Guedes v. BATF. There was no recorded dissent, but Justice Gorsuch wrote a brief statement on the cert denial that was quite critical of both the Administration’s action and the rationale of the D.C. Circuit’s opinion. Specifically, Justice Gorsuch raised an eyebrow at the abrupt change in the federal government’s interpretation of the applicable statute, questioned the D.C. Circuit’s conclusion that an agency could receive Chevron deference even if the agency affirmatively waived any Chevron claim, and reiterated his view that Chevron deference is inappropriate in the criminal law context.
Wrote Gorsuch:
Does owning a bump stock expose a citizen to a decade in federal prison? For years, the government didn’t think so. But recently the Bureau of Alcohol, Tobacco, Firearms and Explosives changed its mind. Now, according to a new interpretive rule from the agency, owning a bump stock is forbidden by a longstanding federal statute that outlaws the”possession [of] a machinegun.” 26 U. S. C. §5685(b), 18 U. S. C. §924(a)(2). Whether bump stocks can be fairly reclassified and effectively outlawed as machineguns under existing statutory definitions, I do not know and could not say without briefing and argument. Nor do I question that Congress might seek to enact new legislation directly regulating the use and possession of bump stocks. But at least one thing should be clear: Contrary to the court of appeals’s decision in this case, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. 467 U. S. 837 (1984), has nothing to say about the proper interpretation of the law before us.
In the first place, the government expressly waived reliance on Chevron. The government told the court of appeals that, if the validity of its rule (re)interpreting the machinegun statute “turns on the applicability of Chevron, it would prefer that the [r]ule be set aside rather than upheld.” 920 F. 3d 1, 21 (CADC 2019) (Henderson, J., concurring in part and dissenting in part) (noting concession). Yet, despite this concession, the court proceeded to upholdthe agency’s new rule only on the strength of Chevron deference. Think about it this way. The executive branch and affected citizens asked the court to do what courts usuallydo in statutory interpretation disputes: supply its best independent judgment about what the law means. But, instead of deciding the case the old-fashioned way, the court placed an uninvited thumb on the scale in favor of the government.
That was mistaken. This Court has often declined to apply Chevron deference when the government fails to invoke it. . . . Even when Chevron deference is sought, this Court has found it inappropriate where “the Executive seems of two minds” about the result it prefers. . . . Nor is it a surprise that the government can lose the benefit of Chevron in situations like these and ours. If the justification for Chevron is that “‘policy choices’ should be left to executive branch officials ‘directly accountable to the people,'” . . . then courts must equally respect the Executive’s decision not to make policy choices in the interpretation of Congress’s handiwork.
I would actually go farther than Justice Gorsuch here. Under SEC v. Chenery, an agency action may only be upheld on the rationale relied upon by the agency. Therefore if the agency did not conclude that the statute was ambiguous and did not make an affirmative decision to resolve the ambiguity in a particular fashion, then the agency’s action should not be upheld on that basis.
The underlying logic of Chevron, as interpreted and expounded upon in subsequent cases such as Mead, reinforces this conclusion. As I explain in my essay “Restoring Chevron‘s Domain,”Chevron deference is premised upon the idea that Congress has delegated to an agency the power to resolve an ambiguity in the statute at issue. Moreover, as Mead and related cases make explicit, for an agency to take advantage of such deference, it must actually exercise the power that Congress delegated in the course of reaching and declaring its interpretation of the statute. Thus it should follow that if an agency does not seek to exercise such delegated power, and disavows any reliance upon Chevron, then Chevron deference should not be available.
Gorsuch goes on:
To make matters worse, the law before us carries the possibility of criminal sanctions. And, as the government itself may have recognized in offering its disclaimer, whatever else one thinks about Chevron, it has no role to play when liberty is at stake. Under our Constitution, “[o]nly the people’s elected representatives in the legislature are authorized to ‘make an act a crime.'” United States v. Davis, 588 U. S. ___, ___ (2019) . . . . Before courts may send people to prison, we owe them an independent determination that the law actually forbids their conduct. A “reasonable” prosecutor’s say-so is cold comfort in comparison.That’s why this Court has “never held that the Government’s reading of a criminal statute is entitled to any deference.” United States v. Apel, 571 U. S. 359, 369 (2014). Instead, we have emphasized, courts bear an “obligation” to determine independently what the law allows and forbids. . . . That obligation went unfulfilled here.
I understand Justice Gorsuch’s disquiet with the application of Chevron to statutes that impose criminal penalties, but denying Chevron deference in such cases is not so simple. The U.S. Code is filled with regulatory statutes with provisions that may be applied both civilly and criminally. It would be quite odd to conclude that these provisions can have one meaning when applied by an agency to a civil violation, but another when applied in a criminal context. Thus to deny Chevron deference where criminal sanctions are on the table would be, in effect, to deny Chevron deference across a wide range of subject matter, if not to throw Chevron out altogether. As I am not (yet) convinced Chevron deference is at the root of the problems with the administrative state, I am not convinced this is the wisest course.
Gorsuch continues:
Chevron‘s application in this case may be doubtful for other reasons too. The agency used to tell everyone that bump stocks don’t qualify as “machineguns.” Now it says the opposite. The law hasn’t changed, only an agency’s interpretation of it. And these days it sometimes seems agencies change their statutory interpretations almost as often as elections change administrations. How, in all this, can ordinary citizens be expected to keep up—required not only to conform their conduct to the fairest reading of the law they might expect from a neutral judge, but forced to guess whether the statute will be declared ambiguous; to guess again whether the agency’s initial interpretation of the law will be declared “reasonable”; and to guess again whether a later and opposing agency interpretation will also be held “reasonable”? And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?
Despite these concerns, I agree with my colleagues that the interlocutory petition before us does not merit review. The errors apparent in this preliminary ruling might yet be corrected before final judgment. Further, other courts of appeals are actively considering challenges to the same regulation. Before deciding whether to weigh in, we would benefit from hearing their considered judgments—provided, of course, that they are not afflicted with the same problems. But waiting should not be mistaken for lack of concern.
Indeed, while the Court did not take this case, it could well take another raising similar issues, if not one actually challenging the bump stock ban itself. To be continued.
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