Category: reason

Shock therapy involves a shock: Argentine leftists seem to have misunderstood the words newly elected libertarian President Javier Milei was saying. In his inauguration speech, Milei assured Argentines that the economic situation would get better—but to brace for turbulence in the short run.

Argentina’s inflation rate is over 200 percent, above even nearby Venezuela’s. The country owes $45 billion to the IMF. Roughly 40 percent of the population lives in poverty. There’s no option but to attempt to dig the country out of the hole by implementing severe austerity measures. But that doesn’t mean the people—who remain, in many cases, disturbingly unaware of how they have been swindled for decades by Peronist leaders—are supportive of Milei’s plan.

Yesterday, thousands took to the streets in a protest slash work stoppage organized by some of the country’s most powerful unions. Quotes from protesters were just stunningly detached from reality, mostly because it seems people on the ground fail to grasp what shock therapy means.

Alicia Pereyra, a 63-year-old retiree who spoke to Al Jazeera, opposes Milei’s changes to labor law and scrapping of rent regulation. “He wants us to be slaves,” she told the publication.

“Before we used to have asados [barbecues] every Sunday. Not now. Even rice is very expensive,” Elizabeth Gutierrez—a nurse finishing up an overnight shift—told Al Jazeera. “Rents have shot up. You can’t live off your salary any more: It’s not enough.”

“The unions are the only ones that help and that are with the people, with the workers,” 78-year-old Víctor Saragusti told The New York Times.

The actual plan: After he took office, Milei deliberately devalued the Argentinian peso by 54 percent—so inflation shot up. He slashed the number of government ministries in half in order to cut public spending. Federal transfers to Argentina’s roughly two dozen provinces were slashed. “Real wages fell in December more than in any other month since at least 2002,” economist Santiago Manoukian told Al Jazeera.

Interestingly, Milei has also raised import tariffs (from 7.5 percent to 17.5 percent) and extended an export tariff (hovering at 15 percent), while fortifying the social safety net, ostensibly on a temporary basis. Argentina’s food stamp equivalent and child benefits will both double during this temporary period, despite Milei’s broader commitment to slashing government spending, seemingly to make sure poor people don’t starve amid this difficult time.

These details, of course, are not emphasized by the people protesting, who attribute their economic malaise to Milei, despite the fact that the situation had been dire right before he took office as well.

“There are two Argentinas,” Milei said before the protests. One is backward, and the other “puts us on the path to be a developed country.”

Unions are no longer running the show: Patricia Bullrich—who ran against Milei but now serves in his administration—called the unions who organized the strikes, and frequently attempt to block nonstriking folks from going to work, “guarantors of poverty.”

“Of 21 million workers, only 0.19% mobilized, if we consider La Cámpora and social organizations among the workers. 40 thousand people,” wrote Bullrich on X. “Total failure.”

“There is no strike that stops us, there is no threat that intimidates us,” she added.

There’s a lot of truth to Bullrich’s words. Milei has taken a hard line on protesters including cracking down on road blocking and docking pay for state employees who take part, measures meant to restore order in a country frequently crippled by union activity.

For more on Milei’s shock therapy, check out this article from The Economist, and this media malpractice post from my Twitter feed.

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Scenes from New York: “New York City declared Wednesday that it’s the first city to issue an advisory officially designating social media as an environmental toxin,” reported Axios. The city’s new guidance, from the Department of Health and Mental Hygiene, directs adults “to promote use of social media in a manner that is protective of youth mental health” by “implementing tech-free times and places in relevant settings that encourage in-person connection” and “modeling healthy social media use, including sharing use practices and how to be thoughtful with use.”

The city is also encouraging parents “to delay giving children access to a smartphone, or similar device that can access social media, until at least age 14, and then reassess based on the current evidence of harms and the child’s strengths and needs.”

None of these are bad ideas, but why are overpaid government bureaucrats telling me how to do my job as a parent? Does this type of guidance ever end up actually having the intended impact? Could these damn people in government just, like, competently tackle the rat problem or the migrant crisis or subway crime and cleanliness—the things they’re actually tasked with doing, yet never seem to make headway on—instead of filling their days writing utterly useless documents like this one?

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QUICK HITS

• I hereby present to you the worst takes of the internet this week, this time on Margot Robbie’s Oscar snub for her role in Barbie (which apparently means the patriarchy is alive and well, according to Twitter’s biggest brains):

Greta & Margot,

While it can sting to win the box office but not take home the gold, your millions of fans love you. 

You’re both so much more than Kenough.#HillaryBarbie

— Hillary Clinton (@HillaryClinton) January 24, 2024

 

• The free speech/DEI/antisemitism battles come to Cornell.
• Trump rallies now feature the most transparent/predictable song by The Smiths (but there are plenty of other viable picks). Meanwhile, the rest of us have our election season anthem locked and loaded.
• Our Amazon overlords have decided, at long last, that law enforcement must get a warrant to access Ring camera footage.
• “Manhattan’s District Attorney Is Quietly Preparing for a Trump Trial,” reads a front-page New York Times headline (so maybe not so quiet after all).
• When chatbots talk people out of suicidal ideation.
• The heads of semi-dueling civil liberties organizations—the Foundation for Individual Rights and Expression and the American Civil Liberties Union—are having an interesting back and forth about the state of free speech in America in the pages of The New York Review and Substack (with a Reason mention, of course, in Greg Lukianoff’s rebuttal to David Cole).
• “Few substances are simply good or bad, and none are miracle cures nor demon pills,” writes Reason‘s Nick Gillespie in a must-read thread on today’s drug war hysteria:

'Woman gets probation for fatal stabbing during weed-induced psychosis.'

Expect to read more headlines like this as the century-old drug war sputters to an end and various upholders of the status quo try to maintain prohibition by attributing magical superpowers to substances… pic.twitter.com/af38w2yE69

— Nick Gillespie (@nickgillespie) January 24, 2024

• Does anyone else feel like everything in mainstream American TV/movie culture is recycled or refurbished right now? We’re in the era of endless remakes—some good, others horrible—and the perpetual re-upping of old hosts, occasionally with fresh gimmicks. With this Jon Stewart news, I am reminded that there is only one truly wise and funny man in all of TV (Larry David, who is choosing to sunset Curb Your Enthusiasm after season 12 airs this spring).

Big news: JON MF STEWART is returning to host The Daily Show on Mondays through the election, with a deal to EP all nights and possibly stay through 2025. A big test of his appeal in a media landscape that’s changed A LOT since 2015, but for me this news is literally this gif: pic.twitter.com/Xce1U0ols3

— Matthew Belloni (@MattBelloni) January 24, 2024

• Live footage of the Biden/Trump matchup:

every day for the next ten months pic.twitter.com/aLhDuzg0ky

— siraj hashmi (@SirajAHashmi) January 24, 2024

The post Guarantors of Poverty appeared first on Reason.com.

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I’m delighted to pass along this item from Prof. Thomas Merrill (Columbia), whom readers might remember as a guest-blogger from a couple of years ago, and who is the author of The Chevron Doctrine: Its Rise, and Fall, and the Future of the Administrative State (2022):

Last week, the Supreme Court heard nearly four hours of argument about the Chevron doctrine—including whether it should be cast aside. Not surprisingly, much of the argument consisted of different conceptions of what Chevron means. The nub of the problem is to specify what must happen for a court to depart from ordinary statutory interpretation (Chevron‘s step one) and defer to a reasonable agency interpretation of the statute (Chevron‘s step two). The argument (in Loper Bright Enterprises, Inc. v. Raimondo and Relentless, Inc. v. Department of Commerce) largely proceeded on the assumption that a court must turn to step two if it concludes the statute is “ambiguous” or includes a “gap.” At some points, however, the advocates and the Justices thought that the critical question was whether Congress has implicitly “delegated” interpretive authority to the agency.

If we attempt to solve the problem by parsing what was said in the 1984 Chevron case, we quickly encounter the difficulty that Justice Stevens said both things. He wrote, on the one hand, that the court should employ “traditional tools of statutory construction” to determine whether a statute is “silent or ambiguous with respect to the specific issue.” In other words, ambiguity is the key.

But, on the other hand, he also wrote that if Congress makes “an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation,” the agency’s interpretation will prevail unless it is “arbitrary, capricious, or manifestly contrary to the statute.” He immediately added: “Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit,” in which case also the court should accept “a reasonable interpretation made by the administrator of an agency.” In other words, explicit or implicit delegation to the agency to interpret is the key.

Some readers of Chevron, including Justice Scalia, have reconciled these statements by concluding that an ambiguity or a gap in a statute just is an implicit delegation by Congress to the agency. He admitted that equating ambiguity with an implicit delegation is a “fiction[],” but he argued it was a salutary one.

Justice Stevens’s opinion in Chevron did not explicitly link the two propositions in this fashion. Even if he did, the opinion in Chevron, which was regarded as a restatement of existing law when it was decided, should not be parsed as if were a constitutional provision.

In fact—for the point that I especially want to explore here—the “ambiguity” conception of Chevron and the “delegation” conception have very different implications for a number of difficult issues. This was abundantly revealed during the lengthy oral argument.

Perhaps the most far-reaching claim advanced by petitioners in the pending cases is that Chevron is unconstitutional because it violates a fundamental precept of Article III: that courts have an unfailing duty “to say what the law is” in cases that come before them (Marbury v. Madison). Chevron seems to say that courts should enforce the law only when it is unambiguous. Otherwise, agencies act as the primary interpreter, and courts must defer to the agency’s view.

Solicitor General Elizabeth Prelogar and several of the Justices parried the constitutional claim with counterexamples, such as review under the traditional writ of mandamus, where courts would intervene only if the law was clear, or review of final convictions on habeas corpus, where Congress has limited relief to clear violations of the law (Antiterrorism and Effective Death Penalty Act of 1996). And, of course, Chevron itself acknowledged that when Congress expressly delegates authority to an agency to define a statutory term, review is deferential.

Overall, the delegation characterization seems more consistent with the broad range of history, which indicates that it is up to Congress to decide when judicial review is available and what the standard of review should be.

Sensing perhaps that the Court was not going to buy the constitutional argument, petitioners took a step back and insisted that Chevron is inconsistent with the Administrative Procedure Act. Section 706 of the APA instructs reviewing courts to “decide all relevant questions of law” and to set aside agency action “not in accordance with law.” This seems to contemplate that courts must resolve all questions of law de novo, that is, in the exercise independent judgment about the meaning of the law. How, the petitioners repeatedly asked, can this be squared with a doctrine that requires courts to defer to an agency when the law is ambiguous?

Solicitor General Prelogar responded that Section 706 should be read in light of pre-APA precedents that gave varying degrees of deference to agency interpretations. Looking at the text of Section 706, however, there is nothing to suggest that the APA was ratifying such decisions (the legislative history on this point is contested).

A much better argument is one grounded in implicit delegation. As Henry Monaghan observed before Chevron, if a court concludes that Congress has delegated authority to an agency to resolve an ambiguity or gap, then the court is simply determining, as a matter of independent judgment, that the relevant rule of decision is the one adopted by the agency.

The petitioners also made much of the fact that if there is no agency in the picture, a court will determine the best meaning of a statute, including the meaning of any ambiguities or gaps it may contain. How, they asked, can this settled understanding about the judicial role be set aside merely because an agency enters the picture? If courts can and must resolve ambiguities in statutes when there is no agency, surely they must do the same when an agency has offered its view of the matter.

SG Prelogar and the Justices sympathetic to Chevron tried to rebut this point by saying that agencies are likely to do a better job at resolving ambiguities and gaps, because of their expertise and familiarity with the statutory regime. As the petitioners pointed out, however, courts do not need Chevron to tap into the superior expertise of agencies. Courts can take advantage of agency insights under the Skidmore standard of review, which requires courts to consider agency interpretations from a variety of perspectives and endorse them if they are persuasive, but leaves the final judgment up to the court.

Once again, the implied-delegation theory offers a more principled justification for deferring to agency interpretations of statutes. If Congress has directed the agency to do the interpreting, then of course the courts should defer to the agency.

A further puzzle debated by the Justices concerned how disruptive it would be to overrule Chevron. The petitioners argued that none of the results reached in the thousands of cases that have been decided under Chevron would have to be relitigated, because Chevron is simply a method of deciding cases rather than a specific legal rule. As such, it is entitled to little weight as a matter of stare decisis.

Justice Barrett pointed out, however, that any prior decision upholding an agency interpretation at step two would be vulnerable to being relitigated if Chevron were overruled, because claimants could ask for a different outcome based on a court’s determination of the best understanding of the statute. In effect, under the view that Chevron is triggered by ambiguities or gaps, overruling Chevron would open the door to massive relitigation of any case decided at step two.

Under the delegation conception, in contrast, the only thing settled by prior step-two decisions is that Congress has implicitly delegated authority to the agency to resolve the issue. This determination would be given effect as a matter of stare decisis, and relitigation of the determination would presumably be ruled out.

Finally, the petitioners made much of the Court’s 2005 decision in National Cable & Telecommunications Association v. Brand X Internet Services, holding that agencies can override judicial decisions when the conditions for applying Chevron are met. This, they said, inverts the usual hierarchical relationship between agencies and reviewing courts, and promotes instability as one administration reverses the interpretations offered by the previous administration. These results would not be possible under Skidmore-type review, they pointed out, since all interpretations would be made by courts (giving appropriate consideration to agency views) and the judicial judgments reached would be final and binding as a matter of stare decisis. SG Prelogar endorsed Brand X, but she did not explain why it was correct.

The answer, once again, is that Brand X is required by the delegation conception of Chevron. If Congress has delegated interpretive authority to agencies, then agencies exercising that authority should be able to override contrary judicial interpretations. Judges may not like this, and the Court has strained to interpret its own precedents as step-one decisions to avoid this result (see T. Merrill, The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State 148–58 (Harv. Univ. Press 2022) (discussing “Chevron and Conflicting Judicial Precedent”)). To be sure, the petitioners’ point about instability is well taken. But rather than replace Chevron with Skidmore, a better solution is to incorporate the traditional canon about the importance of longstanding and consistent agency interpretations into the “reasonableness” review that takes place under step two.

In sum, the defenders of Chevron had multiple reasons to endorse the delegation reading rather than the ambiguity reading. The ability of Congress to delegate interpretive authority to different entities defeats the Article III argument, explains why Chevron is consistent with the APA, distinguishes cases of agency review from cases where there is no agency in the picture, bolsters the case for preserving Chevron as a matter of stare decisis, and rationalizes Brand X. Unfortunately, the defenders of Chevron, by switching back and forth between the ambiguity conception and the delegation conception, made the logic of the doctrine harder to discern.

How would the Chevron doctrine change if the Court affirmed that it is based on delegation rather than ambiguity? One potential change is that courts would have to engage in a more wide-ranging inquiry at step one. It would not be possible to zero in on a single word or gap, declare it ambiguous, and endorse the agency interpretation. Sometimes an implicit delegation would be obvious, as when Congress directs an agency to set “reasonable” rates or “appropriate” environmental standards. The petitioners conceded that Congress can delegate authority to make “policy” in these ways, but the delegations also entail authority to resolve a variety of legal questions (such as whether a reasonable rate includes a risk-adjusted rate of return or whether appropriate standards require a consideration of costs).

In other cases, step one would require a more far-reaching examination of whether Congress’s use of terms of art, like “navigable waters,” imports a delegation of interpretive authority (Sackett v. EPA, 2023), or whether the context in which terms appear, such as a delegation of authority to “modify” tariff-filing requirements, imports authority to deregulate an industry (MCI v. AT&T, 1994). In still other cases, a sequence of legislative enactments would suggest that Congress has or has not delegated authority to interpret broad terms in particular ways (FDA v. Brown & Williamson Tobacco Corp., 2000). The Supreme Court has been moving strongly in the direction of this kind of wide-ranging consideration of context in statutory interpretation cases in any event, so this clarification of step one would not be that remarkable.

Would changing the focus from ambiguity to delegation create more uncertainty about whether it is appropriate to move to step two? Perhaps. But as Justice Kavanaugh has insisted in extrajudicial writing and as he stressed again in the argument, the ambiguity trigger has proved to be a great source of uncertainty itself. He pointed out that lower court judges have very different notions about what constitutes “ambiguity.” Some find ambiguity all the time, and others never find it. And the petitioners could point to the two decisions under review: the D.C. Circuit (in Loper Bright) found the statute ambiguous and deferred to the agency under step two, but the First Circuit (in Relentless) concluded that the statute is clear and supported the agency interpretation.

In determining whether an agency has been delegated authority to interpret, Prelogar pointed out that in United States v. Mead Corp. (2001), the Court limited Chevron to cases where Congress has delegated authority to the agency to act with the force of law. An agency cannot act with the force of law unless it has been delegated regulatory authority over the question at issue; so answering the Mead question gets a court a fair way toward answering whether the agency has been delegated authority to interpret.

Another implication is that the Court would probably want to beef up step two. As recognized in Chevron and as acknowledged by the petitioners, exercises of delegated authority by agencies are subject to arbitrary-and-capricious review. Usually this is more searching than a perfunctory conclusion that the agency’s interpretation is minimally rational. Two candidates for a beefed-up step two would be (1) to require courts to consider the consistency with which the agency has maintained its interpretation and the reasons it has given for any change and (2) to give agencies additional points for rendering interpretations in formats in which the public has been given notice and an opportunity to make its views known to the agency. Prelogar seemed to endorse these modifications in a sympathetic back-and forth with Justice Kagan near the end of the marathon argument.

A deeper reason why the delegation model of the Chevron doctrine may encounter resistance is the campaign of the conservative Justices to limit the power of Congress to delegate authority to administrative agencies. Justices who seem to allude fondly to returning to the pre-1935 conception of permissible delegation or even who create the “major questions doctrine” as a kind of reverse-Chevron are unlikely to embrace a conception of Chevron as grounded in a delegation to the agency of interpretive authority. Overruling Chevron and making Skidmore the universal standard for judicial review of agency interpretations of law would be more consistent with this campaign, as Michael Dorf has explained in a series of blog posts. But writing an opinion reaching this result is made difficult by the logic of delegation, which is very much embedded in Chevron jurisprudence—and provides the superior rationale for the doctrine.

The post Prof. Thomas Merrill on "The <i>Chevron</i> Argument: Ambiguity Versus Delegation" appeared first on Reason.com.

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1/25/1819: Thomas Jefferson charters the University of Virginia. 176 years later, the Supreme Court would decide Rosenberger v. Rector and Visitors of the University of Virginia (1995).

 

The post Today in Supreme Court History: January 25, 1819 appeared first on Reason.com.

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Alexander Cheung’s nine-year-old son has autism and ADHD. He struggled socially and emotionally in public school both in California and after the family moved to Liberty, Utah. After researching the benefits neurodivergent kids get from being in nature, Cheung started the Wilderland Academy, an outdoor microschool for self-directed learners. But then he tried to build a small building on land a community member was letting them use.

“[The county] would send us a question, or say we need more information,” Cheung tells Reason. “And then they would take four to eight weeks to get back to us with an answer.”

The estimated cost to check every box and build the building? Anywhere from $500,000 to $1 million, just for a 1,000-square-foot building.

That’s why Cheung and other education entrepreneurs are supporting Senate Bill 13 in Utah, which is currently moving through the legislature. It would treat microschools as Group B buildings, meaning they would have similar health and safety requirements as dance studios or other places where kids do extracurricular activities. It would also permit microschools in all zones. No longer would they legally need an extensive $100,000 fire suppression system, four bathrooms, and a commercial kitchen. 

Many people know microschools as learning pods that grew in popularity during the COVID-19 pandemic. But microschools can be any education set-up that serves a small group of students. They can give a classical education, be more student-directed, or have flexible schedules to accommodate homeschoolers or neurodivergent learners.

Jon England, an education policy analyst at the Utah-based Libertas Institute, believes zoning commissions are trying to do what’s right. But microschools are so new they can be difficult to categorize into existing categories.

“You show up to a city. And you say, ‘Hey, I have this thing. It’s not really a school.…It’s not a tutoring center necessarily,'” England tells Reason. “It’s not any of these things that fit into the boxes that government bureaucrats look at. And so a lot of times cities are just like, ‘We don’t know what this is, so, no, you can’t come into our city.'”

It’s unclear how many microschools exist in Utah because new ones keep popping up, but England estimates there are more than 100 everywhere from big cities to rural towns.

England says most education entrepreneurs are not millionaires, but former public school teachers like him: “That’s probably like 60 to 70 percent of them. The other ones are parents.”

“We put 10 kids into a church classroom with one adult that could teach the Bible on Sunday. But if you teach them math or science on Monday through Friday, they are now violating those buildings’ occupancy standards,” England says. “They are safe buildings. Most of them already have sprinklers….They have multiple exits. They have multiple bathrooms in the building already. But when you add that extra layer from the educational occupancy, you start to get a lot more requirements that don’t make sense with the smaller school population.”

If the legislation passes, cities could still regulate aspects like traffic or parking. The number of students in a microschool building would also be capped at 16. 

While prospective microschool families and leaders wait for the regulatory relief of Senate Bill 13, Cheung told the Utah Senate Education Committee the difference his microschool has already made: “We have seen our son and many other children in our microschool transform from someone who resisted going to school to someone who can’t wait to get there and often doesn’t want to leave.”

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All investment is risky. What better way to avoid that risk than to use other people’s money? Federal, state, and local governments dispense gifts, grants, and loans to private companies, generously funded by taxpayers and usually with vague promises of economic development in return. While politicians say they don’t like to pick winners and losers, even the “winners” sometimes turn out to be losers for taxpayers.

General Motors I.T.
Innovation Center
Chandler, Arizona
General Motors announced in 2013 that it had picked Chandler for the site of its fourth Information Technology Innovation Center, an internal software development facility. The company would invest $21 million and create 1,000 jobs, and in return Chandler promised over $1 million in economic incentives between 2015 and 2017. In August 2023, G.M. announced that it would close the facility, laying off 940 out of 1,029 workers by the end of October. Chandler’s development director told local news that the announcement “came as a complete surprise.”

Lordstown Motors
Lordstown, Ohio
Amid the financial crisis in 2009, General Motors (G.M.) received $60 million in tax breaks to expand its Lordstown plant. All the company had to do was keep the plant open through at least 2039; instead, G.M. closed the plant in 2019. Rather than claw back the full amount, the Ohio government settled for a $20 million repayment. G.M. then sold the factory to upstart electric vehicle–maker Lordstown Motors, which received another $24.5 million in grants and tax credits. In June 2023, after delivering fewer than 40 vehicles to customers, Lordstown Motors filed for bankruptcy.

Tesla and SolarCity
Buffalo, New York
In 2013, New York pledged as much as $1 billion toward economic development projects to revitalize Buffalo as a manufacturing hub. The largest beneficiary was SolarCity, a solar panel manufacturer later acquired by Tesla in 2016. The state offered $1.25 billion in grants and tax credits in exchange for a factory that would create 5,000 jobs and generate 1,000 solar panel installations per week. But in 2023, after eight years of lowered job requirements and shifting deadlines, the factory employed just 1,700 people (mostly Tesla analysts) and averaged 21 solar panel installs per week.

Yellow Corporation
Overland Park, Kansas
In 2020, the Treasury Department was apportioned $17 billion in pandemic relief funds to disburse to companies it deemed vital to national security. It loaned $700 million of those funds to Yellow Corporation, a freight trucking company worth only $70 million that had lost $104 million the prior year. According to an audit released in 2023, Yellow had an outstanding balance of $729 million in March and had paid only a measly $230 toward the loan’s principal. Yellow filed for bankruptcy in August 2023.

Amazon HQ2
Arlington, Virginia
When Amazon announced plans in 2017 to open a second headquarters (“HQ2”), it encouraged “local and state government leaders” to compete for the project. After receiving several multibillion-dollar offers, Amazon chose Arlington—directly adjacent to Washington, D.C. The state offered as much as $750 million in conditional grants for Amazon to build its campus in Virginia, and in April 2023, the company requested its first tranche of taxpayer funds—over $152 million. While phase one of the project was completed in May 2023, construction is paused indefinitely on phase two.

The post The Government Is Better at Picking Losers Than Winners appeared first on Reason.com.

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The city of San Francisco put almost five years and over half a million dollars into an effort to design and deploy the perfect garbage can. Now, that effort has been put on hold due to an $800 million budget deficit. Mayor London Breed called on all departments to cut at least 10 percent from their budgets. The Department of Public Works said it will not go ahead with plans to purchase the cans, which could each cost thousands of dollars to make.

The post Brickbat: Expensive Garbage appeared first on Reason.com.

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In 1968, Sen. Eugene McCarthy (D-Minn.) stunned the nation by getting 42% of the vote against incumbent President Lyndon B. Johnson.  President Johnson ended up withdrawing from the presidential race.  On Tuesday, Nikki Haley, who has never been elected to any national office before, just pulled in 43.3% of the vote running against a former Republican President with universal name id who is, in effect, an incumbent.  This is an extremely strong showing, which suggests that Donald Trump cannot beat Joe Biden in November 2024.  Seventy percent of the voters who backed Haley were unregistered, independent voters.  These are the kinds of voters Republicans would need to win if they are to beat Joe Biden.  Nikki Haley is getting those voters, and Donald Trump is losing them big time.

Nikki Haley should stay in this race until every state in the nation has voted just as George Herbert Walker Bush did in 1980 when he ran against Ronald Reagan.  At the moment, we do not even know if the Supreme Court is going to allow Donald Trump’s name to be printed on the ballot!  And, no matter how the Court rules in Trump v. Anderson, do not expect Senate President Kamala Harris or a Democratic majority in the House of Representatives, on January 6, 2025, to count electoral votes cast for Donald Trump who all Democrats believe is disqualified from being re-elected as President by Section 3 of the Fourteenth Amendment.  The President of the Senate and a Democratic majority in the House of Representatives will not feel bound to follow the ruling of a Republican Supreme Court.  And, that is even without factoring in the likelihood that Trump will be convicted of at least some of the 91 charges on which he has been indicted and that he may lose the popular vote even if he wins in the Electoral College.

Do I think this would be unfair and wrong as a matter of constitutional law?  Of course, I do!  I, after all, signed a brief by three former Republican Attorneys General in Trump v. Anderson saying that Donald Trump is not barred from being re-elected by Section 3 of the Fourteenth Amendment.  But, if you want to know what Democrats think about this, and what they will do on January 6, 2025, take the time to read Yale Sterling Professor of Law Akhil Reed Amar’s amicus brief, co-written with his brother Vikram, in Trump v. Anderson.  The Amar brothers think a Democratic President of the Senate and a Democratic majority in the House are not bound by the Republican Supreme Court’s ruling in Trump v. Anderson. I would be stunned if all of legal academia and the press did not end up agreeing with them along with some conservative legal academics.  So, even if Donald Trump were to win in the Electoral College in 2024, Kamala Harris and the House of Representatives would not count his electoral votes.  There is simply no way that Donald Trump can win the 2024 presidential election.

What that means is that there is only one person who is running for the Republican nomination for President in 2024 whose electoral votes will be counted and who will pardon Donald Trump if she is elected:  Nikki Haley.  Republicans should pray for Haley to stay in this race until all fifty states have voted in the Republican primaries and caucuses.

 

The post Nikki Haley and Donald Trump appeared first on Reason.com.

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An interesting and, I think, sound analysis by Greg Lukianoff (FIRE), responding to ACLU National Legal Director (and Georgetown law professor) David Cole’s review of Lukianoff & Rikki Schlott’s The Canceling of the American Mind in the New York Review of Books. An excerpt:

[A]fter 9/11 only about three professors lost their jobs for speech related to the attacks or the subsequent wars, and all three were fired for reasons that extended well beyond protected speech. Meanwhile, since the dawn of Cancel Culture in 2014 there have been more than 1,000 professor cancelation attempts, with two-thirds resulting in some form of sanction and one-fifth resulting in termination ….

It’s also important to note that the problem will only get worse as older faculty, who are generally far better on free speech, begin to retire in large numbers. In our 2022 survey of faculty, we saw that the younger the faculty were, the more acceptable they found anti-speech activity ….

What about students, though? Using data from UCLA’s Higher Education Research Institute, Jean Twenge has shown that support for censoring extreme speakers on campus has spiked in recent years: “While only 1 out of 4 students wanted to ban extreme speakers during the 1970s and 1980s, the majority wanted to do so in 2019.” …

There’s much more at the link.

The post "Yes, the Last 10 Years Really Have Been Worse for Free Speech" (Focusing on Universities) appeared first on Reason.com.

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I’m not sure where I stand on qualified immunity—I haven’t looked at its history closely enough—but I thought this was well put, in Judge Willett’s dissent yesterday in Villarreal v. City of Laredo (en banc):

[O]ne of the justifications so frequently invoked in defense of qualified immunity—that law enforcement officers need “breathing room” to make “split-second judgments”—is altogether absent in this case. This was no fast-moving, high-pressure, life-and-death situation. Those who arrested, handcuffed, jailed, mocked, and prosecuted Priscilla Villarreal, far from having to make a snap decision or heat-of-the-moment gut call, spent several months plotting Villarreal’s takedown, dusting off and weaponizing a dormant Texas statute never successfully wielded in the statute’s near-quarter-century of existence. This was not the hot pursuit of a presumed criminal; it was the premeditated pursuit of a confirmed critic.

Also, while the majority says the officers could not have “predicted” that their thought-out plan to lock up a citizen-journalist for asking questions would violate the First Amendment—a plan cooked up with legal advice from the Webb County District Attorney’s Office, mind you—the majority simultaneously indulges the notion that Villarreal had zero excuse for not knowing that her actions might implicate an obscure, never-used provision of the Texas Penal Code. In other words, encyclopedic jurisprudential knowledge is imputed to Villarreal, but the government agents targeting her are free to plead (or feign) ignorance of bedrock constitutional guarantees.

In the upside-down world of qualified immunity, everyday citizens are demanded to know the law’s every jot and tittle, but those charged with enforcing the law are only expected to know the “clearly established” ones. Turns out, ignorance of the law is an excuse—for government officials. Such blithe “rules for thee but not for me” nonchalance is less qualified immunity than unqualified impunity. The irony would be sweet if Villarreal’s resulting jailtime were not so bitter, and it lays bare the “fair warning” fiction that has become the touchstone of what counts as “clearly established law.”

The post Nice Dig at Qualified Immunity, by Judge Don Willett (5th Cir.) appeared first on Reason.com.

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