This week, Reason reporter Eric Boehm joins editors Peter Suderman, Katherine Mangu-Ward, and Nick Gillespie to discuss the Supreme Court’s decision striking down President Donald Trump’s “emergency” tariffs. They examine the major questions doctrine, Justice Neil Gorsuch’s concurring opinion, and whether the ruling meaningfully restrains executive power or just invites years of new litigation. The panel also considers what the decision means for businesses and foreign governments that rushed to cut deals, and they talk about what Trump’s irritated response reveals about his next moves.

They then turn to the Middle East, where a rapid buildup of U.S. military forces has raised fresh fears of a possible war with Iran and renewed debate over how to respond to hostile regimes pursuing nuclear weapons. A listener asks whether a libertarian dream matchup of Rand Paul versus Jared Polis could ever happen and what it would take to convince reluctant candidates to run. The editors also discuss AI, surveillance, and privacy in light of new reporting on how tech companies handle user data.

0:00–Supreme Court ruling on Trump’s tariffs
10:33–Congressional authority over tariff policy
24:22–Are we going to war with Iran?
36:52–The Winter Olympics
46:45–Listener question on Rand Paul vs. Jared Polis
54:22–AI surveillance and privacy concerns
1:05:22–Weekly cultural recommendations

Mentioned in This Podcast

“Trump’s New Tariffs Are Probably Illegal Too,” by Eric Boehm
“Why Trump’s Section 122 Tariffs Are Illegal,” by Andrew McCarty
“Iran’s Nuclear Facilities Have Been Obliterated—and Suggestions Otherwise are Fake News,” by the White House
“The Hawks Are Lying Us Into Yet Another Middle Eastern War,” by Matthew Petti
“The Trump Administration Plans To Deport Iranians Amid Deadly Crackdown in Iran,” by Matthew Petti

• Producer: Paul Alexander
• Video Editor: Ian Keyser

The post Trump Replaces Old Illegal Tariffs With New Illegal Tariffs appeared first on Reason.com.

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From the webpage:

Applications are due by Monday, March 30th at midnight. If you have questions, please feel free to contact freespeechcenter@uci.edu or register for an info session. [Information Session: February 24, 2026, at 12pm PT | 3pm ET.]

About the Center

The UC National Center for Free Speech and Civic Engagement explores the intersection of expression, engagement and democratic learning and considers what can be done to restore trust in the value of free speech on college campuses and within society at large….

About the Fellowship

Each year, the Center selects fellows from a broad range of disciplines and backgrounds such as law, journalism, higher education, social science, technology and government. The Center welcomes candidates from all backgrounds to apply, and invites a wide range of innovative projects. As part of the University of California, the Center is committed to promoting diversity and equal opportunity in its education, services and administration, as well as research and creative activity.

Over the course of the fellowship, each fellow completes a project. Work products can take many forms such as (but not limited to) qualitative/quantitative research, curricular modules, toolkits or training programs/pilots. We are focused on projects that address current issues affecting students, staff, administrators and faculty and will have a direct impact on individuals and communities across campuses. For more information about the work of previous fellows, click here….

This 18 month non-residential fellowship will run from July 1, 2026 through December 31, 2027. Selected fellowships will be awarded $15,000 to support their work.

This year we are particularly interested in projects that address the following issues:

• How best to safeguard academic freedom in response to the national and global climate including executive and legislative assaults and other threats to the creation and transmission of knowledge;
• Exploring the interaction between anti-discrimination laws and expression on campus;
• Navigating values-based polarization and political partisanship in higher education;
• The role of AI and/or social media in the future of free speech and civic engagement in higher education;
• Higher education’s role in supporting democracy and democratic learning;
• Strategies for engaging students, faculty, and staff in democratic governance and policy making at the institutional, local, and national level;
• The relationship between civic engagement and anti-authoritarianism;
• The intersection of campus climate and expression, including the impact of national and international events.

Fellowship Expectations

Fellows will devote the first year of the fellowship to research and development of their work products, with completion expected by June 30, 2027. During this period, fellows will submit written updates on their progress to Center team members and receive feedback and guidance.

During the final six months, fellows will engage the broader public with their work. This engagement will include participation in Center programming or marketing initiatives, such as a Fellows in the Field workshop; writing an op-ed; submitting proposals for conference presentations or journal publications; presenting to a campus cohort or other university audiences.

Fellows are expected to engage with the incoming cohort of fellows as well as participate in monthly virtual meetings and two two-day colloquia, held at or near a UC campus or at the UC Center in Washington, D.C. These in-person meetings are typically held between August-October. Travel and accommodations will be covered by the Center.

Involvement and interaction with the UC community is critical to the Center’s mission. Over the course of the program, fellows will be provided access to resources and connections throughout the 10-campus UC system as befits their research.

How to Apply

Fill out the form at Call for Fellows 2026-2027, including the following:

• A current curriculum vitae/resume.
• A statement (not to exceed 1,250 words) describing your proposed project and how it will further the national conversation related to expression and democratic participation on college campuses. Please address the following:
  • The need for the project: Describe the problem, gap, or opportunity your project addresses. As appropriate, situate your project in relation to existing research, practice-based evidence, or relevant policy contexts.
  • Project objectives: Clearly state the goals of the project and what it seeks to accomplish.
  • Project methods: Describe what you will do and explain why your approach is appropriate for the project’s goals. Proposals involving empirical research should clearly describe the study design, data sources, and analytic approach.
  • Anticipated impact: Describe how the project may inform or influence campus communities, practices, or conversations related to expression and democratic participation.
  • Citations/references (not included in the 1,250 word limit).
• Please address (not to exceed 500 words) how your academic and/or professional experiences qualify you to complete this project, including access to any tools/resources/populations required.
• Please describe (not to exceed 250 words) what draws you to the UC National Center for Free Speech and Civic Engagement fellowship and how the Center’s mission and resources connect to your proposed project.

• Please create a timeline for the research and development of your work product, to be completed by June 30, 2027, and plans for how you will utilize the final six months of the fellowship to share your work with the broader higher education community….

The post UC's National Center for Free Speech and Civic Engagement $15K Non-Residential Fellowships (Applications Due March 21) appeared first on Reason.com.

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Shortly after the Supreme Court ruled that the International Emergency Economic Powers Act (IEEPA) does not empower the president to impose tariffs, the Trump administration invoked one of several statutes that do explicitly authorize import taxes: Section 122 of the Trade Act of 1974. In a proclamation issued on Friday, President Donald Trump relied on that provision to impose “a temporary import surcharge of 10 percent.” In a Truth Social post the next day, he raised that to 15 percent, the maximum rate allowed by Section 122.

The official rationale for this use of Section 122 contradicts the position that the government’s lawyers took while litigating Trump’s interpretation of IEEPA. Before the Supreme Court rejected his reading of that law in Learning Resources v. Trump, the administration argued that Section 122 was an inadequate substitute because it addressed just one aspect of the concerns that led Trump to declare a “national emergency” involving the supposedly “unusual and extraordinary threat” posed by the longstanding U.S. trade deficit in goods. Now the White House has recharacterized those concerns to justify Trump’s invocation of Section 122.

That provision authorizes tariffs to address “large and serious United States balance-of-payments deficits” that present “fundamental international payments problems.” According to a White House “fact sheet,” that language fits Trump purposes because the newly announced tariffs “can stem the outflow of [U.S.] dollars to foreign producers and incentivize the return of domestic production.” And “by increasing its domestic production,” the White House adds, “the United States can correct its balance-of-payments deficit, while also creating good paying jobs.”

In other words, the goal of boosting U.S. manufacturing—the main rationale for the “reciprocal” tariffs that the Supreme Court said were illegal—is perfectly consistent with the goal of addressing “fundamental international payments problems.” But the government’s lawyers were singing a different tune when they defended Trump’s claim that IEEPA gave him “the power to impose tariffs on practically any products he wants, from any countries he chooses, in any amounts he selects,” as Justice Neil Gorsuch put it in his Learning Resources concurrence.

That case was combined with Trump v. VOS Selections, another challenge to the president’s interpretation of IEEPA. After the U.S. Court of International Trade (CIT) ruled against Trump in that case, Assistant Attorney General Brett Shumate urged the U.S. Court of Appeals for the Federal Circuit to overrule the CIT’s decision and reject the lower court’s take on Section 122.

“Congress’s enactment of Section 122 indicates that even ‘large and serious United States balance-of-payments deficits’ do not necessitate the use of emergency powers and justify only the President’s imposition of limited remedies subject to enumerated procedural constraints,” the CIT had said. “Section 122 removes the President’s power to impose remedies in response to balance-of-payments deficits, and specifically trade deficits, from the broader powers granted to a president during a national emergency under IEEPA by establishing an explicit non-emergency statute with greater limitations.”

Not so, Shumate and his colleagues argued. Section 122 “cannot be read to narrow the President’s IEEPA authority,” they said. It just “authorizes measures to address non-emergency balance-of-payments concerns. And IEEPA supplies a distinct, complementary authority to address balance-of-payments concerns and other issues when they constitute emergencies.” In fact, the brief said, Section 122 does not have “any obvious application here, where the concerns the President identified in declaring an emergency arise from trade deficits, which are conceptually distinct from balance-of- payments deficits.”

Neal Katyal, the attorney representing the U.S. businesses that challenged Trump’s tariffs in VOS Selections, questioned that distinction during oral argument on July 31. “I don’t think that there’s a difference between balance of payments and trade deficits,” he said. “The largest component of the balance of payments is the trade deficit.”

Katyal noted that the Commerce Department had been tracking the balance of payments since 1922. “The first entry in that ledger is the export of the debits, and that’s the imports coming into the country,” he said. “And then the first entry on the other side is the exports,” which is “the biggest component of it.”

After the oral argument, trade policy experts Marc L. Busch and Daniel Trefler likewise noted that “goods trade is the dominant component of the current account, which is at the heart of the balance of payments.” The upshot, they said, is that “more than 90 percent of the balance of payments is the trade deficit.”

By contrast, Judge Richard Taranto, who ended up dissenting from the Federal Circuit’s decision, thought the government’s lawyers had raised a valid point. During oral argument, Taranto noted that Trump’s executive order announcing “reciprocal” tariffs aimed at reducing the trade deficit “doesn’t mention balance of payments,” which he thought “should be obviously one reason that [Section] 122 might not apply.” Instead, Taranto said, Trump described “severe deficiencies in our manufacturing capacity” that he attributed to the trade deficit.

While part of the administration’s argument is “a linguistic point about balance of payments and balance of trade,” Taranto said, “part of it is a more substantive point. If there’s going to be a threat to the economy, you have to say what the concrete problem there is.”

Section 122 is “all about…monetary problems, exchange rates, reserves,” Taranto said. But Trump’s executive order “is not about that at all,” he continued. “It’s about a different set of problems, never mind the label, namely manufacturing deficiencies. [Section] 122 doesn’t address that at all.”

Katyal offered several responses. “First, it doesn’t make sense to think currency is different,” he said. “The trade deficits lead to currency depreciation, and so they’re part of the same problem. Second, the legislative history of [Section] 122 says that Congress [was] worried about trade deficits, and the oil trade in particular….Third, Section 122 has a separate provision to deal with the currency problems you’re talking about. The balance of payments occurs in a totally separate provision, so I think it would be wrong to read Section 122 as only about currency.”

In the end, the Federal Circuit’s decision did not hinge on the argument that Section 122 itself, by specifying the president’s authority to address trade deficits, precluded Trump’s use of IEEPA. But the appeals court did cite Section 122, along with other statutes explicitly authorizing tariffs, to support its observation that “whenever Congress intends to delegate to the President the authority to impose tariffs, it does so explicitly, either by using unequivocal terms like tariff and duty, or via an overall structure which makes clear that Congress is referring to tariffs.” The appeals court thought it “unlikely that Congress intended, in enacting IEEPA, to depart from its past practice and grant the President unlimited authority to impose tariffs,” noting that “the statute neither mentions tariffs (or any of its synonyms) nor has procedural safeguards that contain clear limits on the President’s power to impose tariffs.”

The Supreme Court’s reasoning was similar. “When Congress grants the power to impose tariffs, it does so clearly and with careful constraints,” Chief Justice John Roberts noted in Learning Resources. “It did neither here.”

Under Section 122, those “careful constraints” include a 15 percent cap on tariff rates and a 150-day time limit, which can be extended only with congressional approval. Reason‘s Eric Boehm suggests that Trump could try to evade the latter limit by letting the tariffs lapse and reimposing them based on supposedly new or persistent balance-of-payments problems. But Trump clearly preferred the unconstrained authority he claimed to find in IEEPA.

Now Trump has switched gears. Instead of insisting that the balance of payments addressed by Section 122 is “conceptually distinct” from the trade deficit and the threat it allegedly poses to U.S. manufacturers, he says the two concerns are pretty much synonymous. And instead of saying Section 122 has no “obvious application” to the supposed problem he wants to solve, he says the provision is clearly relevant. Will that fly?

One problem for Trump: The issue addressed by Section 122 does not really exist anymore. Bryan Riley, director of the Free Trade Initiative at the National Taxpayers Union, writes, “The United States does not have an international payments problem, fundamental or otherwise, and has not had one since we adopted a floating exchange rate more than five decades ago.”

National Review legal analyst Andrew McCarthy concurs. “Foreign investment in the United States, coupled with the advantages our nation accrues because the dollar is the world’s reserve currency, more than make up for the longstanding trade deficit in goods,” he writes. “Our overall payments are in balance. There is no crisis.”

The contrast between positions on Section 122 before and after the Supreme Court’s ruling cuts both ways, however. In the litigation leading up to that decision, Katyal and other opponents of Trump’s tariffs argued that the trade deficit and the balance of payments were essentially the same thing, making Section 122 the clear source of authority to address the former. Will tariff opponents now switch to arguing that Section 122 does not actually authorize import taxes aimed at reducing the trade deficit?

Trump can turn to other statutes to pursue his protectionist agenda, including laws aimed at protecting “national security,” countering allegedly discriminatory trade practices, and helping domestic manufacturers “adjust” to foreign competition. But like Section 122, all of those laws restrict presidential action by specifying acceptable rationales, requiring agency investigations, or limiting the size, scope, or duration of tariff hikes.

Trump sought to evade those “careful constraints” by asserting a previously unnoticed yet sweeping and essentially unreviewable tariff authority under a 1977 law that does not even mention import taxes and had never before been used to impose them. By rejecting that claim, the Supreme Court complicated Trump’s trade war. More important, it upheld the rule of law and the separation of powers, much to the president’s dismay.

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Andrew Mountbatten-Windsor may soon become the inmate formerly known as prince. British police arrested the king’s brother on his 66th birthday and questioned him for 12 hours over his association with Jeffrey Epstein before releasing him under investigation.

But the investigation is not about whether Mountbatten-Windsor participated in Epstein’s sex crimes. Instead, police said that they suspect Mountbatten-Windsor of “misconduct in public office.” While British authorities have not released details of the specific accusation, the Epstein Library released by the U.S. Department of Justice earlier this month shows Mountbatten-Windsor sharing sensitive information about his official trade missions to Asia and a government-sponsored investment opportunity in Afghanistan.

The association with Epstein is not the only corruption scandal to hit Mountbatten-Windsor, who is also accused of meeting with Chinese spies. (Reporting by Reason revealed that Mountbatten-Windsor tried to loop Epstein into a security-related business opportunity in Beijing.) Nor is Mountbatten-Windsor the only British politician embroiled in the Epstein scandal. Peter Mandelson, a former cabinet minister and ambassador to the United States, is being investigated on similar accusations of giving Epstein insider information.

While members of the public chase after increasingly lurid tales of Epstein and his associates purportedly eating babies, the British investigations get to the heart of what the Epstein scandal really was. Epstein traded in shady forms of influence, brokering secret deals and trying to convert political connections into business deals. Sex was just one part of the leverage he dealt with. The release of the Epstein files has done a lot to shed light on how that underworld operates.

“Make a list of ‘this person owes me a favor, this person owes me his life, this person owes me his job.’ We have to work it backwards. Right now you’re focused on opportunities. I need you to focus on your personal balance sheet,” Epstein said to his future business partner Ehud Barak in February 2013, as Barak was preparing to leave his job as Israeli defense minister the following month. The conversation, which made its way into the U.S. Department of Justice files because Epstein was taping it, sheds light on exactly how Epstein thought about business and state power.

So it was from the beginning of Epstein’s career in business. He was a “relentless scammer” who operated on the “edge of criminality” in the 1980s, lying and brown-nosing his way up through the financial sector. Some of that criminality was itself on the edge of government-sanctioned covert work; a handful of Epstein’s early business partners were involved in the Iran-contra weapons smuggling scandal. In the 1990s, Epstein reportedly helped cut a deal to move Southern Air Transport, a cargo company formerly owned by the CIA and involved in Iran-contra, from Florida to Ohio.

In a way, Epstein was an Iran-contra figure par excellence. He did not work directly for any government but always seemed to be one step removed from state power. While Epstein appeared useful to many political figures, he was ultimately loyal only to himself, and it’s hard to see where his work on behalf of others ended and his self-enrichment began.

One of Epstein’s last projects, his attempts to broker a solution to the Qatar crisis, demonstrates that throughline of his life. He leaned on his connections to Middle Eastern figures who had just left government service, with a wink and a nudge about whether they still spoke for their respective states. Epstein had those connections because of his business dealings, and he took meetings with political elites as an opportunity to pitch business ideas.

Of course, what set Epstein apart from other well-connected shady businessmen was his infamous sexual appetite and predatory behavior, especially toward teenagers. And the air of impunity around the case—from the FBI’s seeming failure to pursue tips about Epstein in 1996 and the “sweetheart deal” he was granted in 2007 to his death in custody in 2019 and the Trump administration’s attempted bait-and-switch around the Epstein files last year—has given rise to a feeling that someone in power was protecting Epstein’s sex crimes.

Sexual blackmail was part of the leverage Epstein collected, albeit not in the form of the pedophilia-for-hire ring that many Epstein truthers have been looking for. The Epstein files include several drafts of blackmail letters to Epstein’s powerful friends that mentioned consenting adult activities or vaguely gestured to knowledge Epstein had about their behavior. (Their tone suggests that these letters were weapons of last resort rather than something he sent regularly.) The files also show that Epstein was gathering information on the relationship between a banker’s son and a foreign supermodel represented by Epstein’s accomplice, modeling agent Jean-Luc Brunel.

Accusations of sexual misconduct brought Mountbatten-Windsor down from the royalty. He was stripped of his titles just before the release of Virginia Giuffre’s posthumous memoir, which accused the former prince of participating in Epstein’s sexual abuses. (Mountbatten-Windsor denies any misconduct.) But it was old-fashioned corruption that ultimately put Citizen Andrew in a police interrogation room.

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The Superior Court for the District of Columbia reinstated its contempt orders against rideshare alternative Empower and its CEO Joshua Sear on Friday, resuming daily multi-thousand-dollar fines against the company and Sear. With no clear path to continue operations, it seems likely that Empower will be forced to cease operations, depriving thousands of independent drivers and money-conscious riders in and around D.C. of a convenient, inexpensive transportation option.

The battle between the rideshare company and district officials has been years in the making and has centered around the legality of Empower’s operations in the city. Empower originally argued that it is not a private vehicle-for-hire company—and is thus not subject to certain district regulations and fees—because it did not employ drivers.

In October 2025, Empower ended any and all contractual relationships with riders and drivers in the district. The company argued this action removed it from the Department of For-Hire Vehicles’ (DFHV) jurisdiction, as the district code defines private vehicle-for-hire companies as those “that uses digital dispatch to connect passengers to a network of private vehicle-for-hire operators,” and operators as those who “provide private vehicle-for-hire service in contract with a private vehicle-for-hire company” (emphasis added). 

The Superior Court didn’t buy Empower’s argument, but stayed its contempt orders while Empower petitioned the D.C. Court of Appeals. Then, in November, and again in February, the D.C. Council updated the definition of private vehicle-for-hire operator to clarify that no contract is required between an operator and a private vehicle-for-hire company for either to qualify as such.

The new definition not only holds moving forward, but retroactively applies, beginning March 1, 2024. Since March 2024 precedes the DFHV’s cease and desist against Empower—the basis for the Superior Court’s contempt orders—Empower assumed the DFHV would withdraw this cease and desist and issue a new one, which would prolong legal proceedings.

This assumption was false.

In December, the District requested that the Superior Court lift the stay on its contempt orders, arguing that the Council’s “amendment resolves the question of statutory interpretation” regarding Empower’s status as a private vehicle-for-hire company. At a January 9 hearing, the Superior Court obliged. A month later, the Court of Appeals denied Empower’s motion for a stay pending appeal on the grounds that the company “failed to demonstrate that they are likely to succeed on the merits.”

On Friday, the District requested the Superior Court to reimpose fines against Empower and Sear, who was not present due to an illness. Chris Southcott, attorney for the District, called Sear’s illness “convenient timing” and requested a bench warrant for his arrest. Superior Court Judge Shana Frost Matini denied this request as inappropriate. 

Martini did find it appropriate, however, to reinstate the multi-thousand-dollar fines against Empower and Sear, who will tentatively appear before the Superior Court on March 23. With no obvious avenue of recourse remaining, it looks like the end for the embattled rideshare alternative, cherished by drivers and riders alike. 

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The Trump administration has approved a profoundly disturbing new immigration policy: collecting social media account information from anyone seeking to change their immigration status or obtain work or travel authorization. On February 11, the policy was approved for a one-year period.

Social media data will now be required of “the more than 3 million people applying each year for immigration status changes—such as seeking work or travel authorization, a green card, or citizenship,” notes Emile Ayoub of the Brennan Center for Justice. “In some cases, they must also provide the handles of their young children, spouses, and parents, many of whom are U.S. citizens, green card holders, or are otherwise in the United States legally.” 

Under the new program, U.S. Citizenship and Immigration Services (USCIS) will ask applicants to provide all usernames or handles associated with any social media platform they have used in the past five years. The list of platforms it considers social media is long, including everything from the likes of Instagram, X, and TikTok to Discord, Telegram, Reddit, Twitch, YouTube, and all sorts of platforms popular in foreign countries.

This is a policy that seems tailor-made for rejecting people based not on any danger they pose but on their politics and beliefs. It’s antithetical to free speech values. It greatly lends itself to pretextual reasoning. If an administration decides it wants fewer immigrants of a certain ethnicity, religion, race, sexual orientation, etc., it can use social media postings as an excuse, citing even tepid criticism of the U.S. as evidence of a “hostile attitude.”

That people could be punished for protected speech is something of which the Trump administration has made no secret. More from the Brennan Center:

In reviving the proposal this year, USCIS said that gathering social media handles is necessary to comply with the administration’s new policy of screening people in the United States for “hostile attitudes” or “hateful ideology” toward Americans or U.S. culture and institutions. These are vague phrases that have been used to label and punish constitutionally protected speech.

In addition, USCIS announced in April that it would begin screening non-U.S. citizens’ social media for “antisemitic activity” and “anti-Americanism.” It provided no concrete definitions of these terms, enabling broad and indiscriminate targeting of protected speech. The agency later directed immigration officers to consider these views “an overwhelmingly negative factor” in discretionary reviews of immigration requests. The State Department has followed suit, directing consular officers to review visa applicants’ online presence for “anti-American” and “antisemitic” activities.

Requiring immigration officials to collect social media data demands that those who might want to work or study in the U.S., or those who are here temporarily and would like to get a green card or become a citizen, intensely censor themselves in public. People who know their future immigration status may depend on what they do (or don’t) post online will be effectively silenced.

That’s bad for those silenced, of course, but it’s also bad for American society more generally. We will lose people willing to speak out truthfully about what’s going on in immigrant communities. We will lose people willing to make their voices heard about U.S. policies and politics. We will lose the perspective of current and future immigrants.

The Department of Homeland Security (DHS) argues that all of this is necessary for security purposes. But we have a long history of Homeland Security using “security” to justify all manner of privacy abuses. And we’ve already seen the current administration use First Amendment-protected online speech as justification for arrests, attempted deportations, and more. It’s recently been attempting to unmask social media accounts that are critical of Immigration and Customs Enforcement (ICE).

Besides, in documents first obtained by the Knight First Amendment Institute through a Freedom of Information Act request, federal officials even say that requiring social media handles would have “very little impact on improving the screening accuracy of relevant systems.”

Meanwhile, the potential for abuse also goes beyond immigration decisions. “The long-term retention and sharing of these handles also violates federal privacy law and enables the continuous surveillance of millions of people in the United States—all with little to no oversight to protect privacy and civil liberties,” Ayoub points out.

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In The News

A date spot for people with AI companions is here! Except…not really. “Now you can take your AI chatbot on an actual date at NYC’s ‘world first’ companion cafe,” says a recent New York Post headline. “On Wednesday night, Same Same Wine Bar was filled with patrons sitting at tables for one-ish, with their tech devices propped up on stands to make video calls to their virtual partners and headphones to hear them,” the article explains.

I’m sure tech doomers everywhere found their take typing fingers itching upon reading that. But read down a bit and you’ll find this:

Milling around the room on opening night, it was clear that most attendees were either fellow members of the media, influencers, or curious techies. Richter was one of the few genuine patrons.

Not only were there very few people actually taking chatbots out for a romantic drink, but the locale in question has not actually become a full-time companion cafe, despite what the Post headline implies. It was simply hosting a one-night event put on by EvaAI, an app that allows people to text or video chat with AI personalities.

It seems this was a marketing stunt, not a reason to hit the “humanity is doomed” alarm.

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On Substack

“Don’t ask if AI data centers use a lot of water. Ask if they’re worth it,” writes Bonnie Kristian on Substack. Her piece looks at a BBC article that shirks rigorous reporting in favor of promoting an alarmist view of artificial intelligence. Then Kristian steps back to consider the broader media landscape surrounding AI and water use:

It’s true that data centers, whether they’re purpose-built for AI or not, often use water for cooling. It’s also true that what these usages vary widely by build type and physical environment. Undark has what strikes me as a nuanced article explaining some key differences here, and this (very long!) Substack post on AI and water from Andy Masley seems well-researched and sensible, deserving of the attention it has received, even if I don’t share the wider conclusions of that attention.

From reading these and other sources, my sense is it’d be prudent to use closed-loop cooling designs (instead of designs where a lot of water evaporates) and to concentrate centers in colder places with lots of water whenever those choices are available.

What seems rather less prudent is a lot of reporting on this topic. It’s sensationalist and ill-informed, tossing out lots of big numbers (millions of gallons a day!) without explaining exactly what those numbers mean for a specific center design or how they fit into extant water usage and needs in a specific geographic location.

Kristian goes on to point out that data centers don’t only power AI and data centers aren’t the only types of businesses that use a whole lot of water. The correct way to think about water use is probably not to simply look at how much water a given industry or purpose uses but to consider the value of that use.

In short: Is it worth it?

Whether you think so will depend a lot on your attitudes toward AI, of course. The actual value here is up for much debate. But we should be having the debate on those terms, not simply gasping at big numbers.

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Read This Thread

Oops. Turns out Persona, Discord’s age-verification service, was secretly screening selfies against government watchlists AND accessible by the feds. It's backed by Peter Thiel. “The state wants to see everything. The corporations want to see everything. And they've learned to work together.”

— Mike Stabile (@mikestabile.bsky.social) 2026-02-21T22:57:32.620Z

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More Sex & Tech News

• Anyone who wants to force you to identify yourself to the government as a precondition for querying or speaking on the internet has other goals in mind,” said…the State Department’s undersecretary for public diplomacy? Wow.

•”As a sex worker, I’m better off as an entrepreneur—not an employee,” suggests brothel worker and sex worker rights advocate Alice Little in a Nevada Independent piece opposing brothel worker unionization. Working as an independent contractor “has allowed me to set my own schedule, set my own rates, offer the services I choose and have the ability to turn away guests for any reason,” Little writes. “I am solely in control of my image, my brand and my website. I decide how I want to advertise myself, how I want to communicate with clients and how I want to manage my business.…A union cannot and should not be responsible for negotiating my personal boundaries.”

• A coincidental traffic stop or AI-powered surveillance?

• How bad tech studies become “proof” when they support the right narrative:

r = .04. p < .05. Cue the moral panic.
This post breaks down how weak effects become “proof” when they fit the right story. – When Small Effects Make Big Headlines, by @DocGrawitch Shoutout to @CJFerguson1111 for the stimulus for this. https://t.co/Xtad5WuNwv pic.twitter.com/NBLzs3gyUT

— Matt Grawitch (@DocGrawitch) February 17, 2026

• The New York Times looks at why federal prosecutors increasingly bring sex trafficking charges against people accused of other sex crimes. The answer is basically that trafficking statutes are pretty broad and somewhat malleable, which means they can potentially apply to all sorts of crimes. (That might be good news for prosecutors looking to win cases, but it doesn’t always serve the interest of justice. See, for instance, the way the feds have stretched trafficking parameters in the OneTaste case.)

• Have you checked out the Reason app yet? It just got a redesign.

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Today, The Dispatch published my new article (gift link) on the Supreme Court’s tariff decision, entitled “The Supreme Court Spurns a Presidential Power Grab.” Here’s an excerpt:

On Friday, the Supreme Court ruled on three cases challenging President Donald Trump’s massive system of tariffs imposed under the International Emergency Economic Powers Act of 1977 (IEEPA). In a 6-3 decision, the court rightly held that IEEPA does not give the president the power to impose tariffs. Among the cases decided was VOS Selections Inc. v. Trump, which the Liberty Justice Center and I filed on behalf of five small American businesses harmed by the tariffs (we were later joined by prominent litigators Neal Katyal and Michael McConnell). The decision is important for its impact on tariffs, and as a rejection of a sweeping executive power grab. But it also raises a crucial broader—and as yet unresolved—issue: how much deference to give presidential invocations of sweeping emergency powers. That issue is central to various cases working their way through the courts, and may soon arise again in the tariff context….

The main basis for the court’s ruling is that IEEPA does not even mention the word “tariff,” and has never been used to impose them by any previous president during the statute’s nearly 50-year history. The power to “regulate” importation, which IEEPA does grant in some situations, does not include a power to impose taxes.

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Every year, thousands of prisoners in the U.S. are placed in solitary confinement, where they endure isolation, abuse, and mental suffering. This practice might soon become rarer for some inmates in Oklahoma, thanks to the efforts of activists in the state.

Earlier this month, the American Civil Liberties Union (ACLU) of Oklahoma announced that the Oklahoma State Penitentiary in McAlester had ended the practice of indefinite solitary confinement for “the vast majority” of death row prisoners.

The ACLU’s advocacy on this effort began in 2019, when the organization, along with the National Prison Project and other advocacy groups, investigated conditions at the prison’s H-Unit, which houses men on death row. The prison’s H-Unit opened in 1991 and quickly drew attention from Amnesty International for its inhumane conditions, including the use of automatic solitary confinement for people on death row and a lack of natural light and air in cells, which produces a burial-like confinement. Despite these findings, practices at H-Unit continued.

In 2019, the ACLU sent a letter to the state Department of Corrections demanding changes. In the letter, the group outlined “unconstitutional policies and practices” at H-Unit, which “subject [prisoners] to dangerous and injurious conditions.” Indeed, men on death row are automatically sentenced to this unit, where they are indefinitely confined to their cells for 22 to 24 hours per day and are only offered 15 minutes to shower three times per week, according to the ACLU. Meanwhile, their one hour (if that) of exercise time per day is confined to a cell of similar dimensions to the one they spend most of their time in.

Meanwhile, the construction of the unit, which is mostly concrete with no windows to the outside world, is built in a way that “effectively constitute[s] a dim underground bunker.” This manufactured isolation is evident in the prison’s policies on human contact; any visits with other human beings are non-contact, including when they speak to mental health professionals, which happens through the hole in their cell door. Visits they get with loved ones are through plexiglass, using a telephone. One prisoner described this experience as being “buried alive.”

Religious freedoms are also violated within H-Unit. When the cell block first opened, prisoners were allowed to worship communally (albeit in chains and handcuffs) twice per month. This changed in 2009 when the warden of the prison at the time banned religious congregating for all death row inmates. This policy, as the ACLU pointed out in 2019, violated federal law that protects the religious freedoms of the incarcerated.

These policies have had an indelible effect on prisoners in H-Unit. From 2012 to 2015, “nine prisoners at OSP-McAlester died by suicide, giving the prison the highest suicide rate in the state, six times higher than the prison with the second highest rate,” according to the ACLU.

Rather than filing a lawsuit to remedy the situation, the ACLU entered into negotiations with the state, which have yielded positive results: several men on death row have been transferred to A-Unit, where they enjoy outdoor yard time, jobs, religious ceremonies, and contact visits from family members. “Many of these men have been able to touch grass and feel the warmth of the sun for the first time in ten years,” said Megan Lambert, legal director of ACLU Oklahoma, in a press release. “One man was able to hold his grandchild for the first time.”

By outlawing indefinite solitary confinement for death row inmates, Oklahoma joins states like Hawaii, Connecticut, and New York, which have ended this practice in recent years. Some prisoners remain in H-Unit, but thanks to the efforts of these organizations, more people will be able to enjoy their basic, constitutionally protected rights.

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Whom can you trust?

Trust in institutions is at an all-time low. Trust in the media has collapsed. 

“Meanwhile, during that same 25-year period, Wikipedia has gone from being kind of a joke to one of the few things people trust,” says Wikipedia founder Jimmy Wales, whose new book The Seven Rules of Trust: A Blueprint for Building Things That Last shares lessons he learned about building trust while creating the world’s largest crowdsourced encyclopedia.  

He’s right that many of us turn to Wikipedia as one of the last trusted sources for information online.   

But can we really trust it?

Wikipedia shapes our perception of reality today more than ever before because it informs the large language models like ChatGPT that we increasingly turn to for answers. Wikipedia pops up as an authoritative source at the top of Google searches and under YouTube videos on controversial topics.

But Elon Musk calls Wikipedia an “extension of legacy media propaganda,” recently launching an AI-based competitor called Grokipedia. 

“Wikipedia has come to be dominated by the Left,” says Wikipedia co-founder Larry Sanger, who compares it to the Catholic Church before the Reformation. He posted Nine Theses to his Wikipedia user page in the spirit of Martin Luther. Wikipedia became “the voice of the establishment. It’s just that the establishment itself is working behind the scenes.”

Wales tells Reason, “This idea that we’ve been taken over by woke activists just doesn’t really track” and the notion that nefarious forces are manipulating Wikipedia behind the scenes is “absolute fucking nonsense.”

Welcome to the Wiki Wars. 

The most controversial Wikipedia page might be the one belonging to Donald John Trump. 

He’s described as an “American politician, media personality, and businessman who is the 47th president of the United States.” Biographical details include his time as a real estate developer, reality show host, and his 2016 presidential victory over Hillary Clinton. So far, no disagreements.

But the first policy mentioned is a travel ban against seven Muslim-majority countries, expanding the border wall, family separations, rolling back environmental and business regulations, downplaying the severity of the COVID-19 pandemic, refusing to concede the 2020 election, and getting impeached. Then comes a recounting of his legal battles, his second term involving “mass layoffs of federal workers,” “targeting of political opponents,” the “revers[al] of pro-diversity policies,” and “persecution of transgender people.” 

The final paragraph concludes that “many of his comments and actions have been characterized as racist or misogynistic” and that “he has made many false or misleading statements during his campaigns and presidency, to a degree unprecedented in American politics.” It also states that his  actions “have been described as authoritarian” and “historians ranked him as one of the worst presidents in American history.”

Tell us how you really feel, Wikipedians.

“In order to be neutral, it should be impossible for a well-informed reader to tell whether, or what position the writers of the article take on controversial questions that are raised in the article,” says Sanger, critiquing what he sees as the site’s mission drift.

But Wales defends the Trump article, saying, “If you get a negative view of Donald Trump from reading it, that’s not our fault.” 

Former Wikipedia editor Betty Wills says her experience with Wikipedia changed “quite noticeably” after Trump came on the political scene in 2015. Wills began editing Wikipedia under the username Atsme in 2011. A self-described political centrist, she started contributing to the site by editing a page about the alligator gar, drawing on her expertise in producing a documentary on the topic for PBS. She also weighed in on pain management, pit bulls, and the Taj Mahal, once earning an “Editor of the Week” award for being “one of the best contributors to Wikipedia.”  

Then Trump ran for president. 

“I was doing well until I got involved in politics,” says Wills. 

She says the editors on Trump’s page were constantly trying to insert that he was a “liar, racist, that he had a mental condition” in his Wikipedia page. One argument was over whether Wikipedia should assert that Trump referred to immigrants from Haiti and El Salvador as coming from “shithole” countries. Wills wanted to note that Sens. Tom Cotton (R–Ark.) and David Perdue (R–Ga.) were in the room and denied hearing the president say the phrase. 

Another Wikipedia editor who goes by Mr. X overruled her on the grounds that “most (reliable) sources factually state that the comment was made.”

Another argument erupted over a Wikipedia page article titled “Racial Views of Donald Trump,” which Wills and others wanted to change to “Accusations of Racism against Donald Trump.” 

“I wanted it to be objective and neutral,” says Wills.

 “Absolutely not,” said Mr. X on the article’s talk page, shooting down the title change. “This article is not about accusations; it’s about Trump’s 45 year documented history of racially-provocative remarks….This is not creative writing where we try to turn the tables and make the so called accusers look like the bad guys.” 

“Mr X., we’re not supposed to make anyone look like the ‘bad guys’…including Trump,” replied Wills.

A few weeks later, Mr. X brought an arbitration case against Wills, accusing her of violating, among other rules, Wikipedia’s “gaslighting” policy by “repeatedly discrediting reliable sources; claiming bias and propaganda in reliable sources.”

Wills says that Mr. X created the “gaslighting” policy and altered it to target her. 

“He added gaslighting, changed it around to make it fit me, OK. I wasn’t gaslighting anybody. All I was doing was telling the truth,” says Wills.

Wikipedia banned Wills from editing the Trump page.

The conflict partly revolved around what constitutes a “reliable source,” which Wikipedia lists in color-coded fashion on its “perennial sources” page, also created by Mr. X.  Reason would have reached out to him for comment, but Mr. X, whose identity is secret,  announced he was taking a break from Wikipedia in 2020, returned in 2022 to thank his well-wishers, and has since disappeared.

Sources like the Associated Press, Reuters, and Reason are marked green as “generally reliable in its areas of expertise.” Publications marked yellow, like Buzzfeed, Cosmopolitan, and The Daily Beast, have no consensus on reliability. Red sources like the Daily Caller, The Epoch Times, and The Federalist are considered “generally unreliable,” while greyed out sources like Breitbart are blacklisted for alleged “persistent abuse,” such as doxxing anonymous Wikipedia editors. 

“The number of heavily restricted, I would simply use the word blacklisted sources on Wikipedia that are left wing, it’s very small,” says Sanger. 

Daily Kos, Alternet, and Counterpunch are among the left-wing publications that Wikipedia editors approach with caution. But Sanger is right that far more right-wing sources are marked as questionable. Wales says this reflects the quality of available conservative media.

“The Right tends to have a few more low-quality sources out there,” says Wales. “Maybe some right-wing billionaire funders should fund some quality media….I think that would be wonderful for the world, but that’s not a Wikipedia problem.” 

But Sanger says Wikipedians feign naivete about the real cause of this imbalance.

“I don’t think they’re quite as naive as they’re letting on. But they would have you believe that they think that there are objective facts that all responsible people agree upon, and they appear in the greenlit sources. And those other sources are uncontrovertibly bad sources. They are sources of misinformation. Basically, all epistemic virtue is on one side and there’s none on the other.”

At one point, Wikipedia banned Wills from editing all pages related to American politics. The ban was lifted, but soured by the experience, Wills launched Justapedia, where editors revise Wikipedia articles, aiming to live up to the site’s motto, “where neutrality meets objective truth.”

Justapedia’s Trump page begins by describing his biographical details, similar to his Wikipedia entry. It summarizes his first term as having “delivered tax cuts, three Supreme Court Justices, and…[a] border wall.” It notes his legal troubles, though mentions that House Republicans called his trials “politically motivated” and concludes that “he set a historic record as the first Republican in 20 years to win the popular vote…swept all seven swing states, and secured 312 electoral votes, surviving two assassination attempts.”

Kamala Harris’ entry notes in the second paragraph that her paternal grandfather was “a prominent slave owner,” later says she “has been referred to by her opposition as ‘an elitist radical,'” and concludes that she’s “received substantial criticism” for her role as border czar “in light of 10 million undocumented immigrants entering the U.S.” during her tenure. None of these details appear on Harris’ Wikipedia page, which describes her as “the first female, first African American, and first Asian American U.S. vice president, and the highest-ranking female and Asian American official in U.S. history.”

Is it possible to achieve real neutrality and objectivity in a digital landscape flooded with conflicting information and opinion? Or is the best we can hope for a conservative-flavored Wikipedia clone? Sanger says the ideal online encyclopedia should include diverse perspectives and let readers decide.

He says Wikipedia’s original neutrality policy was meant to encourage editors to present multiple points of view about a controversy without unduly tilting the scale. 

For example, Sanger’s Wikipedia page says his “status as co-founder has been questioned by [Wikipedia’s other co-founder Jimmy] Wales, but is generally accepted.” This notes the majority opinion but adds a notable dissenting view. 

Sanger, who was laid off in 2002, less than a year after Wikipedia’s launch, has criticized the site for years and tried several times to launch competitors. 

“In the early days, there was a lot of just plain disrespect for experts who would come by. And that bothered me,” says Sanger, “Jimmy Wales, he failed to rein these people in, and he allowed those people to drive off a lot of really good editors.”

Sanger says that over the years, Wikipedia’s most aggressive and ideological editors worked their way up the ladder. 

“The inmates took over the asylum, and they’re still in charge,” says Sanger. “Wikipedia has come to be dominated by the Left and, generally speaking, people who are, for whatever reason, interested in a particular topic.”

Much of that interest among unpaid editors is sparked by a genuine commitment to accuracy and advancing knowledge, but Wikipedia is in a constant battle with vested interests, including P.R. firms revamping client pages and state actors pushing a political agenda.

The Taiwan page is under constant siege, and a vote had to be taken on whether to call it a country before locking that part of the page. Wikimedia Foundation banned seven members of the Chinese Mainland Wikipedia group in 2021, with a V.P. announcing that “community ‘capture’ is a real and present threat.”

In 2024, a pro-Palestine group coordinating over Discord to mass edit pages related to the Israel-Palestine conflict was exposed in a 244-page dossier compiled by the Jewish Journal.  

Wikipedia’s arbitration committee eventually sanctioned three of the editors affiliated with the Discord server. 

American political activists are also fighting an ideological information war in the bowels of Wikipedia talk pages, with many accounts spending full work days editing Wikipedia pages. According to Sanger, so too are U.S. intelligence agencies. 

“One of the main things that intelligence is supposed to be about these days is the massaging of public opinion. They would be falling down on the job if they weren’t doing that with respect to Wikipedia. That’s just low hanging fruit,” says Sanger.

In 2007, a California Institute of Technology grad student named Virgil Griffith built a tool called WikiScanner to trace the I.P. addresses of Wikipedia editors. He found addresses linked to weapons manufacturers, a voting machine company, both major political parties, the House of Representatives, and the CIA.

Since then, Wikipedia has strengthened its conflict-of-interest policies around editing and deployed filters to better block coordinated editing. But the site also began shielding I.P. addresses to protect the anonymity of its editors.

“I think we would be foolish to think it isn’t still happening all the time at some level,” says Sanger. 

But Wales says that’s ridiculous. 

“I think that it’s quite easy for people to imagine that Wikipedia is under assault from dark webs of mysterious operatives, and it’s fucking nonsense,” says Wales. “I know the Wikipedians. I mean, they’re a bunch of geeks.”

Wales says that while bad actors try to manipulate entries “around the edges,” that it’s highly inefficient and “not a very useful thing for people to invest in” because of the time and effort it takes to convince other editors to accept the edits.

But some in the U.S. government think Wikipedia has become a national security issue. 

The Department of Justice sent Wikimedia Foundation a letter in April 2025 threatening to revoke their tax-exempt status and alleging that the site is “allowing foreign actors to manipulate information and spread propaganda to the American public.” 

The British government is also attempting to regulate Wikipedia. A U.K. law could force all Wikipedia editors to relinquish their anonymity in the name of child safety. The government wants editors to provide ID so that minors working on Wikipedia don’t come into contact with anonymous adults. 

Sanger agrees with the Wikimedia board, which has sued the U.K. over its law, that anonymity is vital for rank-and-file editors.

“People need to be free to share what they know without negative consequences from the authorities,” says Sanger.

The reforms Sanger is proposing don’t require the heavy hand of the government. But they might require a special session from the Wikimedia board, which is why Sanger is calling for the Wikimedia Foundation to have a “constitutional convention” to implement some structural changes to the editorial process.

One of Sanger’s proposals to reform Wikipedia is to de-anonymize the site’s most influential editors, which he calls the “power 62,” so the public can know who is making the decisions to check and ban I.P. addresses or topic-ban editors like Wills. 

“That’s probably his worst idea and it doesn’t address any problem that we actually have,” says Wales. “We don’t see the people with the most power egregiously violating the rules of Wikipedia with their power.…We live in a very dangerous world, and we have editors who are heroes who are editing Wikipedia in authoritarian countries.” 

But Sanger says knowing the identities of the powerful editors would make it easier for Wikipedia to fight against paid, coordinated shadow campaigns, and it would make the project more transparent. He also wants to abolish decision making by “consensus,” which he calls an “institutional fiction” that “hides legitimate dissent under a false veneer of unanimity.” 

“It’s three wolves and a sheep deciding what’s for dinner,” Wills says, describing her experience with Wikipedia’s consensus process.

One of Sanger’s most radical proposals is to allow competing Wikipedia articles instead of seeking what he says is a false consensus on a single definitive entry. For example, instead of fighting covert Chinese state actors, Wikipedia might invite Chinese nationalists to openly write an article about Taiwan or religious scholars to write an article about Yahweh, the God of the Bible that Wikipedia describes as “an ancient Semitic deity of weather and war”—a characterization Sanger, a recent convert to Christianity, has called offensive and at odds with the views of many modern religious scholars. 

Sanger says such problems arise because Wikipedia only permits the “GASP” framework: Globalist, Academic, Secular, and Progressive. 

“I don’t think there’s anything wrong with being academic. As a Ph.D. philosopher, I’m all for it,” says Sanger. “It’s just that in today’s academy, there are a lot of reasonable positions that simply are not considered, or they’re such minority positions. The kind of people who edit Wikipedia will pretend that they’re not even present in the academy at all.”

The case for a more pluralistic Wikipedia is one of epistemic humility—that we should acknowledge the limits of not only what we know, but what we can know. But Wales says competing articles are a “terrible idea” that Wikipedia will never adopt. 

“It’s really important that we all meet in one article, and that we have that discourse, and we try really hard to achieve neutrality,” says Wales. 

Wales concedes that Wikipedia could do better on that front. Recently, both Sanger and Wales publicly critiqued an article entitled “Gaza genocide,” defining it as “the ongoing, intentional, and systematic destruction of the Palestinian people in the Gaza Strip carried out by Israel.” Wales wrote that “this article fails to meet our high standards and needs immediate attention” and that “there is much more work to do.” He’s currently leading a neutral point-of-view working group within Wikipedia. 

“It would be a mistake for Wikipedia to be complacent about any of these issues,” says Wales. 

Whether or not Wikipedia implements any of Sanger’s suggested reforms, large language models are already forcing change. 

While Wikipedia still draws more than 100 million unique visits a day, its human pageviews have declined as more people turn to chatbots like ChatGPT and Grok for answers. 

The Trump page on Elon Musk’s AI-generated encyclopedia Grokipedia is more neutral than you’ll find on either Wikipedia or Justapedia, highlighting Trump’s success as the host of The Apprentice alongside his multiple bankruptcies, listing both his major policy achievements and controversies, and concluding with a description of his 2024 win and early raft of executive orders. 

But Wales is concerned that Grokipedia, which allows human feedback on its articles, might ultimately be programmed to reflect the biases of its creator. 

“I’m not sure to what extent the project trying to support Elon’s view of world, and that, frankly, isn’t really gonna be neutral. But we’ll see, I mean, I think it’s too early to say,” says Wales.  

Sanger says there are other dangers in leaning too much on AI to generate the definitive record of human affairs. 

“We do not want to offload the task of summarizing what we think we know to a machine,” says Sanger. “So there’s two different purposes of an encyclopedia. One is for people to go and learn the basics about a topic or look up information about the topic, but then the other is to actually authoritatively record what is known or believed to be the case in various fields. It would lack credibility, and it would ultimately draw conclusions that human beings may not be comfortable with. It’s a very, very sensitive issue, ultimately, how you wordsmith and which facts you want to present as being facts.”

Wikipedia’s decentralized and open-source nature is also its greatest source of strength and resilience. As Wales points out, it might be the only publication that has a lengthy, evolving article documenting criticisms of itself.

“Wikipedia is a living thing that people can come and engage and like enter that dialog and enter that conversation. And any publication that doesn’t allow for reader feedback in the form of actually getting involved, I just see a limitation there,” says Wales. 

Sanger says it might not take that many people to change Wikipedia for the better from within. 

Wikipedia publishes all its user statistics, which reveal that while there are almost 50 million active users, there are only 822 administrators, 49 Checkusers who can track I.P. addresses, and only 16 people, called bureaucrats, with the power to knight new administrators. 

“I do think that it’s very important that we get involved, at least for a season, you know?” says Sanger. “Give it the old college try and see if we can, collectively, from the bottom up, change the nature of Wikipedia.”

Sanger is right: It’s important to fight for fair and accurate information on the internet.

Though Wikipedia, like every encyclopedia, has shortcomings and biases, we’ll never fully agree on what’s true. There will always be contested ground, although John Stuart Mill wrote in his defense of the marketplace of ideas that the goal is still to discover shared truths and that “the well-being of mankind may almost be measured by the number and gravity of the truths which have reached the point of being uncontested.” 

Even so, Wikipedia is one of the great achievements of the free and open internet, and a huge improvement on the Encyclopedia Britannica-era, in which all of our information was filtered through a central authority that nobody could challenge. Despite all the controversy over Wikipedia, nobody is saying we should go back to that world.

Not long ago, the idea that you could trust anything written in a decentralized online encyclopedia seemed totally outlandish. Stephen Colbert famously mocked Wikipedia in 2006, calling it “the encyclopedia where you can be an authority even if you don’t know what the hell you’re talking about” and joking that reality would be replaced with “Wikiality.”

He encouraged his viewers to mass edit the online encyclopedia to claim that the elephant population had tripled in six months and that George Washington didn’t have slaves. It worked for a moment. And then…it didn’t.

“What was interesting about that, it is kind of a good case of how robust Wikipedia really can be,” says Wales. “The page was locked within seconds because, as I told him later, Wikipedians also watch The Colbert Report.“

When Colbert complained of “Wikiality,” what he was really lamenting was the demise of the informational gatekeepers that once dominated mass media. But those days are finished.

Dissent is cheaper and easier than ever in the digital age, and it’s better to harness it for good than to squash it for the illusion of consensus. 

Systems that best approximate a marketplace of ideas and insulate themselves from capture or abuse are the ones that will bring us closer to the truth. That might be Wikipedia, or Grokipedia, or some new ecosystem of competing encyclopedias. 

Fact finding in the AI-infused digital age is bound to be a messy, confusing, and contentious process, but grasping our way towards the truth always has been.

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In an earlier post, I observed that Learning Resources is not really a constitutional law case. The bulk of the Chief Justice’s controlling opinion focuses on statutory interpretation, sprinkled with some major question analysis. But there is very little straight-up conlaw.

Justice Thomas, as usual, is in a league of his own. He wrote a through study of how the non-delegation doctrine ought to apply to different types of enumerated powers. In short, Congress cannot delegate “core” powers to the President because the exercise of those powers can deprive people of the private rights of life, liberty, and property. By contrast, Congress can delegate “non-core” powers to the President because the exercise of those powers would, at most, violate public rights, which are mere privileges, and would not deprive people of life, liberty, and property. I think you need to read the entire dissent to understand the full breadth of Thomas’s vision, but these paragraphs offers a succinct summary:

The Constitution’s separation of powers forbids Congress from delegating core legislative power to the President. This principle, known as the nondelegation doctrine, is rooted in the Constitution’s Legislative Vesting Clause and Due Process Clause. Art. I, §1; Amdt. 5. Both Clauses forbid Congress from delegating core legislative power, which is the power to make substantive rules setting the conditions for deprivations of life, liberty, or property. Neither Clause prohibits Congress from delegating other kinds of power. Because the Constitution assigns Congress many powers that do not implicate the nondelegation doctrine, Congress may delegate the exercise of many powers to the President. Congress has done so repeatedly since the founding, with this Court’s blessing.

The power to impose duties on imports can be delegated. At the founding, that power was regarded as one of many powers over foreign commerce that could be delegated to the President. Power over foreign commerce was not within the core legislative power, and engaging in foreign commerce was regarded as a privilege rather than a right. Early Congresses often delegated to the President power to regulate foreign commerce, including through duties on imports. As I suggested over a decade ago, the nondelegation doctrine does not apply to “a delegation of power to make rules governing private conduct in the area of foreign trade,” including rules imposing duties on imports. Department of Transportation v. Association of American Railroads (2015) (opinion concurring in judgment). Therefore, to the extent that the Court relies on “‘separation of powers principles'” to rule against the President at 8 (opinion of Roberts, C. J.), it is mistaken.

At first blush, there is something counterintuitive about Thomas’s theory. The powers listed in Article I, Section 8 would have to be bifurcated based on a line that appears nowhere in the text: core, and non-core. The majority opinion says that the “power of the purse” is a “core congressional power.” And as Justice Gorsuch notes in his concurrence, the text of Article I, Section 8, lists all of the powers in one block.

Section 1 of Article I vests “[a]ll legislative Powers herein granted” in Congress and no one else. Section 8 proceeds to list those powers in detail and without differentiation. Neither provision speaks of some divide between true legislative powers touching on “life, liberty, or property” that are permanently vested in Congress alone and “other kinds of power[s]” that may be given away and possibly lost forever to the President.

That was my first blush. But after stewing on the matter for a few days, Thomas starts to make sense of something I have long intuited: not all of the powers in Article I, Section 8 are actually legislative; some are executive in nature. Here, Justice Thomas cites Michael McConnell’s discussion of the King’s “prerogative” power:

Congress also has many powers that are not subject to the nondelegation doctrine. “We now think of the powers listed in Article I, Section 8 as quintessentially legislative powers, but many of them were actual, former, or asserted powers of the Crown, which the drafters decided to allocate to the legislative branch.” M. McConnell, The President Who Would Not Be King (2020) (McConnell); accord, Zivotofsky v. Kerry (2015) (Thomas, J., concurring in judgment in part and dissenting in part). These include the powers to raise and support armies, to fix the standards of weights and measures, to grant copyrights, to dispose of federal property, and, as discussed below, to regulate foreign commerce. Art. I, §8; Art. IV, §3. None of these powers involves setting the rules for the deprivation of core private rights. Blackstone called them “prerogative” powers, and sometimes “executive.” By one count, 13 of the 29 powers given to Congress in Article I were powers that “Blackstone described as ‘executive’ powers.”

Thomas shows that the early Congresses delegates to the President the power to exercise these non-core powers without limitation.

For most of American history, the nondelegation doctrine was understood not to apply to these powers. Contra (Gorsuch, J., concurring). “The early congresses felt free to delegate certain powers to President Washington in broad terms.” McConnell 333. Thus, the Constitution gives Congress the power to support armies, Art. I, §8, cl. 12, but Congress in 1789 delegated to the President the power to establish regulations for benefits to veterans wounded in the Revolutionary War. The Constitution gives Congress the power to grant patents, Art. I, §8, cl. 8, but Congress in 1790 delegated to executive officials the power to grant patents in their discretion. The Constitution gives Congress the power to borrow money, Art. I, §8, cl. 2, but Congress in 1790 delegated to the President the power to borrow up to $12 million on behalf of the United States in his discretion. The Constitution gives Congress the power to raise armies, Art. I, §8, cl. 12, but Congress in 1791 delegated to the President the power to raise an army of 2,000 troops in his discretion. And, as I explain further below, the Constitution gives Congress the power to regulate foreign commerce, Art. I, §8, cl. 3, but early Congresses often delegated to the President the power to regulate foreign commerce.

I’ve lost track of the literature studying how the early Congresses delegated power. But maybe one way to make sense of some of these statutes is that Congress could delegate what were executive “prerogative” powers without regard to non-delegation concerns. I need to give this topic more thought.

As for the major question doctrine, I think Justice Kavanaugh has the better argument. It should have no applicability on the foreign affairs context.

Second, in any event, the Court has never before applied the major questions doctrine in the foreign affairs context, including foreign trade. Rather, as Justice Robert Jackson summarized and remains true, this Court has always recognized the “‘unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed.’ ” Youngstown Sheet & Tube Co. v. Sawyer (1952) (concurring opinion) (quoting United States v. Curtiss-Wright Export Corp. (1936)). In foreign affairs cases, courts read the statute as written and do not employ the major questions doctrine as a thumb on the scale against the President.

Kavanaugh is certainly correct that Roberts is wrong to extend the MQD to foreign affairs for the first time without much consideration.

The Chief Justice’s opinion’s reliance on the major questions doctrine in this foreign affairs case is a first—a novel and unprecedented use of the major questions doctrine to invalidate Presidential action taken pursuant to congressional authorization in the foreign affairs area. I firmly disagree with that use of the major questions doctrine here. In the foreign affairs context, including tariffs, the longstanding rule is simple: Interpret the statute as written, not with a thumb on the scale against the President.

I think I’m done writing about Learning Resources for now. Let’s see what tomorrow brings.

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