The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Today in Supreme Court History

Today in Supreme Court History: October 17, 1862

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10/17/1862: Justice David Davis takes oath.

Justice David Davis

The NBA/Hong Kong Tweet Controversy, and the Symbolism of the Logo

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Sinologist (and Penn professor) Victor Mair (Language Log) has more on one of the less discussed features of the now-famous Tweet from Houston Rockets general manager Daryl Morey:

The question Prof. Mair discusses is: What's with the logo? Here's what the Stand With Hong Kong Facebook page says:

After Daryl Morey reposted our logo in an effort to #StandWithHK and Hongkongers' ongoing fight for freedom and democracy, the Chinese state intimidated both him and the NBA into silence. But what does our logo actually mean?

Our logo consists of the Chinese character for "person/people (人)", repeated five times and converging from around the globe on one place—Hong Kong. The number five represents the five key demands made by protesters in June 2019. The form of the logo resembles the shape of an opened umbrella, a well-known symbol of the democracy movement. It also brings to mind the bauhinia, a flower native to Hong Kong and its official symbol.

We created this logo to raise international awareness of the situation in Hong Kong. Hongkongers across the world stand united in our fight for freedom, building on a long history of protest and resistance.

We are not afraid of intimidation & censorship. Fight for Freedom. Stand with Hong Kong.

Will you join us and #StandWithHK?

standwithhk.org

P.S. NBA, don't you think our logo looks like a team huddle? This is part of the meaning of the design as well.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. These corporations and orgs were so brave standing up on twitter against the vast hordes of antitransgender bathroom and men’s rights activists but now they shrivel up the second Uncle Mao casts a frown their way? What happened?

    1. What happened? Money happened. Liberals (and apolitical folks) can whore their integrity just as quickly and dispassionately as conservatives. Which is shocking news to no one. Pretty much all large-scale/international businesses don’t want to screw up their chance to suckle at the teat of China’s consumers.

    2. China actually represents a real threat to their future business and profits, by threatening to kick out the NBA, if the NBA doesn’t toe the line. If the NBA says something China doesn’t like, the NBA gets kicked out, and doesn’t get to come back for a long time.

      The state of North Carolina (as a counter example)…does not represent a “real threat”. And it’s not because of how big NC is, but because of American culture. No one believes that the state of North Carolina will kick out the NBA, if the NBA doesn’t “agree with” North Carolina laws. That’s not how things work in America.

      If the NBA protests in NC, they can do so…then they can (and will) quietly go back in when things have quieted down to get more profits. And NC will let them. Because we, in America, believe in a diversity of opinions, and that’s OK.

      1. In both cases they kneel to the money. Both are loud virtue signalling.

        In the case of China, the signaled virtue is “We can expect to help export censorship to other nations”. “How wise you are.”

  2. Great logo, even without the explanation.

  3. What are the five key demands? I recall one of them concerned extradition and that law was repealed.

    What’s the status of the other four?

  4. Adam Silver should hang his head in shame. This of course, assumes he can actually perceive a sense of shame. Adam Silver has cast aside any moral scruples and made himself a whore for Red Chinese money. It is that simple.

    And the players who willingly go along with this charade are all alike; morally bankrupt money whores.

    1. Why stop at the NBA?

      Do you shop at Walmart or Target?

      Something like 60 – 90 % of their products are made in China.

      I recall reading something like 90% of the toys in the US are made in China and around 60 – 70% of the shoes.

      The Chinese own a lot of U.S. debt — $1.123 trillion as of December 2018: https://www.investopedia.com/articles/investing/080615/china-owns-us-debt-how-much.asp

      But yeah, let’s only bash the NBA.

  5. When Britain decided to give Hong Kong back to China, they announced their intention to do so several years before doing so. People in Hong Kong remained in Hong Kong despite knowing it was going to come under the authority of the PRC. They made their choice. As it is, they get more freedom than the rest of the PRC does.

    1. That argument may work for everyone who was old enough to leave by 1997, but what about, you know, everyone under the age of 40?

Please to post comments

"It's Called 'Show Business,' Not 'Show Show' or 'Business Business'"

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A nice line from legendary producer (Batman, Rain Man, Flashdance, and many more) Peter Guber, as reported by my colleague David Ginsburg. (For a published briefer version of the line, see here.)

Mysterious Swastika Incident at Yale Law School

A hate crime that wasn't?

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On October 8th, the Yale Daily News reported:

Late Saturday night - between the Jewish High Holy Days of Rosh Hashanah and Yom Kippur - anti-Semitic graffiti appeared on the steps of the side entrance to Yale Law School.

The graffiti depicted a white, spray-painted swastika above the word "Trump." By noon on Sunday, the graffiti was covered with black paint and a doormat. It has since been removed entirely. On Monday, Yale Law School Dean Heather Gerken issued a statement to the YLS community reaffirming the school's values, offering support and notifying the community of an upcoming investigation.

"We are saddened by this act of hate against our community at any time but understand that this is particularly difficult occurring between the High Holy Days," said Ellen Cosgrove, associate dean of students at Yale Law School. "Diversity and inclusion are core values of our institution [and] attacks against individual students or communities of students will not be tolerated."

Gerken emphasized that there is no evidence that a member of the Yale community painted the swastika, and stressed that the act of anti-Semitism is "utterly antithetical" to the values of the Law School.

"Yale Law School has zero tolerance for discrimination or harassment of any kind, and symbols of hate have no place on our campus or in our society," Gerken said. "We take an incident like this extremely seriously and are currently investigating."

Gerken encouraged anyone with information to reach out to her office.

Organizations in the Yale community, such as the Law School's Office of Student Affairs and the Joseph Slifka Center for Jewish Life, responded to the incident on Monday, condemning the action and offering support to students.

Rabbi Jason Rubenstein, Jewish chaplain at Yale, wrote in an email to the Slifka community Monday evening that the investigation into the perpetrator's identity is ongoing and is "relying on video footage from late Saturday night and early Sunday morning.

Anyone who has been following such "Trump plus swastika in very liberal environments" incidents would immediately suspect one of two things: (1) a hoax; or, perhaps more likely (2) the vandal(s) in question weren't trying to say "I support Trump and he's a Nazi," but rather "I hate Trump because he's a Nazi." Nevertheless, everyone at Yale treated this immediately as a presumptive hate crime.

Having seen the initial reports, I checked google for any followup. There was none that I could find. I wrote to Dean Gerken:

Dear Heather,

I just checked Google, and there appears to be no news about the swastika incident in the last several days. Early reports said that video surveillance existed to help identify the perpetrators. Has this video been released to the public yet to help the identification? If not, why not? Writing in my capacity as a blogger for Instapundit and the Volokh Conspiracy.
Best,
David
I received the following reply:

Hi, Professor Bernstein. Dean Gerken said that you had inquired about the graffiti incident last week. Any updates on the status of the investigation would have to come from the Yale Police Department.

Jan

Jan Conroy Chief Communications Officer Yale Law School

I responded:

Ms. Conroy, with all due respect, the law school sent out a release about this and would be the owner of the relevant surveillance video. Is there some reason the law school hasn't released the surveillance footage? Surely that would help identify the guilty parties.

That was Monday. I have not received a reply. I tried reaching out to the Yale police department, but was unable to reach a spokesperson.

Having informed law school and broader communities that a hate crime took place at the law school, I find it mysterious that the school has neither released the surveillance footage nor provided any updates as to the progress of the investigation.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Whether by the right or a hoax by the left, the statement just describes what happened and that it, and hate, are bad and will be investigated.

    I don’t see how that means Yale is on the hook to do its own investigation and can’t refer things to the police.

    1. They said the college was reviewing video, you’d think that in the interests of justice that they’d release the footage of such a horrible hate crime being committed.
      Golly, what reasons could the college have for suppressing the video?

      1. The cops asked them not to?

        1. 1: Why would the cops ask them NOT to release the video? Don’t they want help identifying the responsible people?

          2: If the cops DID ask them not to release the video, why don’t they simply say so?

          Honest people don’t need to hide what they’re doing, in this kind of case.

          1. “1: Why would the cops ask them NOT to release the video? Don’t they want help identifying the responsible people?”

            You’re making an assumption about what’s on the tape. You should avoid doing that.

            But, some actual answers:
            1) the cops think the person in the video is someone who lives outside their jurisdiction, and they’re hoping to avoid letting the suspect know they’re on to them, and waiting for them to get caught inside the jurisdiction.

            2) The cops might be worried about people taking action extrajudicially.

            3) The cops aren’t actually taking the incident seriously, and don’t want to be pushed.

            4) the video doesn’t actually show anyone doing anything wrong, just people who might have been in the area. (IOW, the video isn’t pointed at where the vandalism happened, but it’s nearby… so anyone in the video MIGHT be a suspect, but not without corroboration.)

            “2: If the cops DID ask them not to release the video, why don’t they simply say so?”

            They said to contact the police. That’s the place questions about the surveillance should be directed. Spending extra time explaining this is a waste of their time. “Go talk to the cops” is a one-sentence answer that covers everything.

        2. You mean the campus cops who actually work for the College? Because they’re the only cops involved.
          You don’t even seem to understand what’s going on, but you’re going to shill for your teammates regardless.

          1. “You don’t even seem to understand what’s going on, but you’re going to shill for your teammates regardless.”

            You seem to have a problem with psychological projection.

  2. I no longer by default believe a given statement comes from whichever political faction it seems to. But Slyly intimating that the default assumption is a hoax is also not a healthy position to take.

    Antisemitism is a problem on both sides of the aisle. Giving this kind presumption to one side and not the other is not going to solve the growing problem.

    1. How many “Nazis for Trump” do you think live near Yale Law School, compared to how many of the “I think Trump is Nazi-like” persuasion? There’s a Bayesian aspect to this.

      1. That reasoning seems questionable. Often it’s the zealots of one side that are immersed in a sea of ‘non-believers’ that are the most agitated to ‘act out.’

        1. I don’t think that’s an empirically sound assertion.

          1. I don’t think there’s much empirical evidence to support either way, but would be happy to be corrected. My point is that while ‘there’s more X radicals than Y radicals in place Z, so therefore any radical act is likely done by X radicals’ is reasonable it’s also reasonable that ‘Y radicals living in a climate of so many X radicals produces greater agitation for Y radicals to act radically’, or that ‘place Z, known by Y radicals to be a climate of so many X radicals, is prime grounds for a radical act’ (this is how ‘trolling’ works, no?).

            1. Even if a “Nazi for Trump” were 100 times more likely to vandalize than a “I think Trump is a Nazi”, there are way more than 100 times the latter than the former in the Yale environs.

              1. But we’re talking about the probability of someone doing a radical, illegal act, which implies things like motivation and strategic choice of target. For example, a person surrounded by those they disagree with on fundamental issues could reasonably be posited to be much more likely to be agitated to ‘act out’ in a radical (illegal) way than those who are in a largely supportive environment. Again, this isn’t strange, it’s exactly how ‘trolling’ often works (trolls are attracted to act out more in venues where most people don’t support their positions).

                1. Except that if you do the illegal act and you are a racist, you are going to jail. If you do the illegal act and you were “well-meaning” or “disturbed because of Trump,” the matter will be quietly dropped.

                  1. It will? Is there general evidence of that?

                    1. Justin Smollett. QED

                      Can you provide any evidence of an individual who pulled a hoax and was prosecuted to the “full extent of the law”? That is, was prosecuted on every possible charge, and received the maximum sentence for every count on which there was a conviction?

                  2. Also, are you know changing your argument from ‘well, since there’s many more X radicals than Y radicals it’s safe to assume the radical act was done by X radicals’ to ‘well, since the political/legal environment is more likely to look askance at radical acts done by X radicals it’s safe to assume the radical act was done by X radicals?’

                    That’s not unreasonable. But do you find radicals are often dissuaded by that (think of the Quakers who kept coming back to Massachusetts until they got hanged)? Human nature is funny.

                    1. I guess it is up to Queen to please give us some real examples of these “hate crimes,” etc. that turn out to be real, rather than fake. There have been many fake ones, and off the top of my head, I can’t think of any real ones.

                    2. These sorts of incidents are almost (>90%) always hoaxes. It is almost impossible to find an incident where it was a real threat by a “racist”, on the other hand “hoaxes” are too numerous to count.

                      There is a more fundamental reason to disbelieve this incident: True Nazis don’t commit vandalism, they kill people.

                    3. “There is a more fundamental reason to disbelieve this incident: True Nazis don’t commit vandalism, they kill people.”

                      would-be Nazis don’t kill people, they commit vandalism. Nice try, though.

                    4. would-be Nazis don’t kill people, they commit vandalism

                      See, e.g., Antifa

                2. What’s the probability of a random unconnected troll doing a s*** disturbing prank for lulz of watching everyone point fingers and try to stake the high ground for their side?

              2. BTW-Trump got 42% of the vote in New Haven.

                1. Which isn’t really relevant because a very high proportion of the New Haven community are students registered to vote somewhere else. The vote by long-term residents (that is, those eligible to actually vote in New Haven) is a poor predictor of the opinions of the student+townie population and not at all useful in measuring the opinions of just the students (that is, those most likely to be on the Yale Law School property).

                2. Actually, Clinton got about 36K votes in New Haven to Trump’s 4,500. https://www.nytimes.com/elections/2016/results/connecticut

                  1. yeah — per wiki the 42% is for New Haven COUNTY. The city is majority minority by quite a bit, and, excluding the Universities, extremely poor. Not a bastion of Trumpism.

                3. Hey Queen Amalthea.
                  Remind me again how supporters of a President with Jewish offspring, who is accused of being a Zionist in Netanyahu’s pocket by the left and who made history as first sitting President ever to say Jewish prayers at the ‘Wailing Wall’, are Nazis.

                  1. well, a lot of them aren’t too bright.
                    They claim “family values” are critical, but support the porn-star-hush-moneying Trump to the still-married-to-his-first-wife Obama.

                    1. That’s pure (BS, in my opinion) opinion, but it doesn’t address the question Fancy asked. Whether he screwed some porno star or not, how does that make his Jewish offspring Nazis?

                    2. Who claimed his Jewish offspring are Nazis?

                      And, while you’re working that out, how does having Jewish offspring prevent someone from being like a Nazi?

                    3. “Antisemites will support a vociferous philosemite because they’re dumb”
                      Do you come from Bizarro World? Only there would an absolutely fucking retarded argument like that make sense.

                      “support the porn-star-hush-moneying Trump”
                      They support Trump because they don’t think he hates them and actively wishes them harm. Not because he’s a moral icon.
                      If you lefties toned down your sociopathic, anti-xtian eliminationist rhetoric for a bit, you might have a better chance at the polls.

                    4. You’re confusing the president, an administrator, with a role model.

                      Trump is no role model, but he is generally giving more freedom to families and individuals.

                      Obama may be a great role model, but he was a lousy administrator, and his policies hurt many families.

                    5. ” Only there would an absolutely fucking retarded argument like that make sense.”

                      Well, you wrote that argument, so we agree that your arguments are dumb.

    2. “default assumption is a hoax is also not a healthy position”

      Why not? There are many examples of hoaxes, ranging from Smollet to the “nappy hair” incident where Mrs. Pence works.

      When it happens in left wing environments, its a safe bet.

      1. Any evidence there are more hate crime hoaxes than actual hate crimes?

        1. The overall rate is not the question, though. Trump supporters are very thin on the ground at Yale while Trump antagonists are numerous. And then the fact that the surveillance video isn’t being released suggests that it is embarrassing to Yale. If it actually showed some MAGA-hat rednecks sneaking up to the Yale library, you can be pretty sure the video would be everywhere. So I’m betting hoax just like I did with this case not far from where I live in Ann Arbor (which has also seen at least a couple of other hate crime hoaxes since Trump was elected).

          1. “The overall rate is not the question, though. Trump supporters are very thin on the ground at Yale”

            There’s this thing called an “automobile” that allows people to move from place to place, using public roadways. As you note, Trump antagonists are not shy about their antagonism. So that’s a vandalism target worth travelling to visit.

            Maybe it’s real, maybe it’s fake. Either way, the perp is to be pitied.

            1. There’s this thing called an “automobile”…

              Yes, it’s possible some Trump supporters drove into New Haven to do the deed. But this strikes me as just about as likely as Trump supporters driving to Chicago to lie in wait for Jussie Smollet in Streeterville. Do we have any examples ANYWHERE of actual Trump supporters wearing MAGA hats and waving swastikas? You don’t have to merely believe it’s likely that some Trump supporters drove to New Haven, but that Trump supporters did this AND wrote ‘Trump’ with a swastika and somehow thought that was a good message for their side.

              1. ” this strikes me as just about as likely”

                Must be true then!

        2. Queen Amalthea asked “Any evidence there are more hate crime hoaxes than actual hate crimes?”

          Sure!

          Please give us links to the ten worst actual right wing hate crimes you know of, in the US, since Trump’s election.

          For every one you come up with, we’ll come up with two fakes that pretended the same, or worse, crimes.

          1. Ignoring the left/right divide, the ability to find evidence of real crimes vs hoaxes in incidences boosted by the media actually isn’t evidence of more hate crime hoaxes than hate crimes. It’s evidence that of hate crimes pushed for attention by the victims and/or media that the majority of that subset are hoaxes. As a general rule, people’s first instinct upon being the victim of an actual crime is not to blare that fact to all and sundry, and if media is repeating a fact over and over it’s because they find doing so advantageous to their agenda. This means they will be less inclined to scrutinize the claim in question.

      2. Many examples’ ruling the day is the essence of confirmation bias.

        I can think of many actual examples of racist expression. But I recognize the urge to generalize based on those examples as not one grounded in truth.

        1. Sure, but as of yet, I haven’t seen anybody providing evidence of actual hate crimes. Certainly not of the type alleged.

          For example, here in Minnesota, I can think of three different colleges that have had similar incidents reported. All were hoaxes. I can also think of one hate crime (some guys through an explosive device through the window of a mosque). The real attack involved violence, and there were no symbols attached. The hoaxes occurred on liberal campuses and, in at least two instances, were done by people with an agenda to push. Each of those also involved graffiti or postings similar to what’s reported here.

          Given that, you can understand the skepticism.

          1. as of yet, I haven’t seen anybody providing evidence of actual hate crimes

            You think there are no hate crimes, only hoaxes?

            Your second paragraph is again confirmation bias exemplified. You wouldn’t remember or credit actual hate crimes. Or maybe given your circles you wouldn’t hear of them. Regardless, you pay more attention to the examples that prove your narrative. That’s how the human mind works.

            1. “You think there are no hate crimes, only hoaxes?”

              He didn’t say that — he said that this particular type of incident (racist messages/symbols posted anonymously on liberal university campuses) have routinely turned out to be hoaxes. In fact, I’m having a hard time thinking of a single incident of this type that turned out to be genuine. Do you have any examples?

              1. I quoted what he said. It’s not what you say he said.

            2. You think there are hate crimes, but can’t even come up with an example of a real one?

              Which argument is more based on evidence – David’s who came up with actual hoax examples, or yours, where you assume real racial incidents happen but don’t bother to point to any?

              Nowhere in this thread, as of yet, has anyone come up with a real life example of an honest to goodness racial incident that WASN’T a hoax.

              1. I don’t feel like Googling, but I’ve done so before on threads like this. No lack of examples. Go check for yourself!

                1. No, Google is a big tech company, and we don’t trust them. OBVIOUSLY they’re in on the hoaxes, and they just don’t report them as hoaxes when you search for actual vandalism.

                  But, here’s a non-hoax hate crime. On the Portland, OR transit system, a man started ranting against Muslims, focusing on two women wearing hijabs. Several bystanders tried to intervene; so the man killed two and seriously injured another, right there on the train.

                  https://en.wikipedia.org/wiki/2017_Portland_train_attack

    3. Maybe you’re right.

      We should say the default assumption, given that it’s YLS and “swastika + Trump” is a hoax, openly and outright, not slyly.

  3. I know Prof Volokh is a descriptivist on grammar, but I was hoping you were not. Unless you informed the community about a hate crime, that last sentence should be revised — maybe the nominative absolute route: “The dean having informed …” On the merits, I agree the dean should provide an update.

    1. Why would you hope anyone would hold anything but the correct (descriptivist) position on grammar?

      It would be especially ironic to give grammar prescriptivists, otherwise known as “ignorant authoritarians who try to force their incorrect views of English on the more intelligent remainder of the population”, the floor in a post about Naziism.

      1. I believe that Nazism is spelled with one “i”.

        1. You win a bright shiny Internet today. Where would you like it delivered?

      2. Regardless, the construction quoted by NYLawyer is incorrect, not because it violates some ancient rule, but because it is somewhere between unclear and plainly inaccurate.

        Having informed law school and broader communities that a hate crime took place at the law school, I find it….

        That sounds like it was Bernstein who informed the communities.

        1. For someone who took that last sentence out of context, ignored the rest of the article and was down to her last two brain cells, maybe. I’m betting that pretty much everyone else could easily see the implied noun, “the dean”.

  4. For many people, telling a story is what matters. Finding out what actually happened isn’t a priority unless it advances the story. If the actual facts are less emotionally satisfying than the story, the facts will be denied, minimized, disregarded, and/or hidden from view.

    1. This.
      It’s the narrative, not the truth that matters to these people. Once they no longer have a use for a tool, they drop it.

      1. This is why there are so many people insisting “this must be a hoax” without knowing anything about the incident. This fits their narrative. If this turns out to be real, they’ll suddenly get really quiet about it.

  5. One thing that crime victims have in common is that they think their case should have the highest priority for law enforcement.

    While that’s a normal response from a victim, it does not mean it actually is the highest priority for the investigation agency.

    One can assume the Yale police are prioritizing their cases to ensure the efficient use of limited assets (lab technicians, evidence custodians, etc.), and also keep track of and (hopefully) solve cases.

    Maybe non-violent (albeit disgusting), graffiti isn’t their highest priority.

    1. Obviously they’re tied up with all the murders and stick-ups at Yale this semester?? FYI, Yale is a midsize college in a town near NYC called New Haven. The town crime rate is quite high, but New Haven has its own police. The college part of town has far less crime.

    2. And that’s why … Yale hasn’t released the video surveillance?

      1. It’s quite possible the Yale police are following up on leads they developed from a review of the tape and don’t want to release it yet to prevent compromise.

        Or maybe (since they’re a small department), they’ve sent the tape to a county/state crime lab to enhance the quality.

        Or maybe they really are working on other things.

        The tape is really a minor issue – unless you believe (without any facts), there’s some cover-up.

        1. “Or maybe they really are working on other things.”

          Its a glorified security company [“campus police”] on a safe campus.

          They aren’t investigating murders.

          1. Well what’s your theory why they haven’t released the tape?

            Since I’m a retired federal agent (who conducted all kinds of investigations), I based my possibilities on the training and experiences I’ve had.

            Go ahead and enlighten us.

            1. Appeal to authority is a logical fallacy.

              The Yale police department is what we used to call campus security, now with police powers as is the trend. They are not some elite crime fighting agency or even the FBI.

              Why can’t Yale law school get an answer from another college department? Hiding behind “its up to the police” is a red flag they are covering something embarrasing.

            2. Since I’m a retired federal agent (who conducted all kinds of investigations)”
              Yeah, and I’m a Navy Seal. Semper Fo-something!

              Just kidding, the way you’re insinuating that there’s nothing here because it no longer advances the narrative, means you’re either James Comey or John Brennan, amirite?

              1. You have the crime of vandalism. A crime, yes. But… not a very serious one, absent details that would indicate something more serious, which approximately no one has suggested.

          2. Bob, I’ll bet they are all trained and officially recognized as New Haven police officers.

            How do you know the campus is safe? If it weren’t, who would say so?

            Can you imagine any edgy town/gown interactions?

        2. “The tape is really a minor issue”
          What a bullshit, handwaving statement.

          1. “What a bullshit, handwaving statement.”

            But also true.

            If it’s real, then Yale has (gasp) a vandal with a paint can! And if it’s not real, then Yale has (gasp again!) a vandal with a paint can.

            There just isn’t an interpretation of the known facts that makes this important.

        3. Look how far you have to twist yourself to believe a real racial incident occurred.

      2. And that’s why … Yale hasn’t released the video surveillance?

        They haven’t released the tape because it undermines the ‘hate crime’ narrative.

        They’re not talking because they want this all to go away before it blows up in the faces of the people pushing the ‘hate crime’ narrative.

      3. Now Prof. Bernstein is implying a hoax that Yale covered up, based entirely on assumption and police being tight-fisted with info?

        That may be correct, but this seems less like Sherlock Holmes here and more like someone with a narrative.

    3. The Yale police is part of the college.

      They prioritize what the college tells them to prioritize.

      The law school could find out the status with one phone call.

      1. “The law school could find out the status with one phone call.”

        Perhaps. And the reason they’d make that call is… because some busybody outsider called and asked them to?

    4. Which is the bigger crime — a trivial physical crime of spray painting a sidewalk, but with “Trump is a Nazi, yay!” Or “Trump is a Nazi, boo!”?

      1. We should probably amend the constitution to take government out of the business of criminalizing opinions amd speech.

  6. In contrast to Bernstein’s suggestions, I suspect it was one or two brainless teenagers with little in the way of an agenda.

    1. Could be. But no need to start spinning yarns right yet.

      1. But it’s to late for that now, given the press release form the Law School in the first place. That Prof B’s point.

        1. I read the release and saw nothing about who did it.

          And I get the temptation but no need to fill that in. No matter your narrative or statistical algorithm or or gut feeling.

          1. Regardless of your blindness to the implicit assumptions in the press release (please never think you’ll make it in a second career in literary criticism) a big deal was still made by having a press release in the first place. Why do you think they put out this press release for a bit of graffiti, even if they didn’t know who did it or why?

            Still, at bottom, the law school got into the car, started the engine, rev’d it, and now doesn’t want to put into park or drive….Bernstein is asking pointedly why.

            1. “Why do you think they put out this press release for a bit of graffiti”

              because A) it happened, and B) people started asking questions about it, and C) they got tired of answering people’s questions.

          2. That you feel no need to fill in the blanks is of no concern.
            The narrative is set. Knuckle dragging Nazis, anti semite, bigots, are intimidating Jews. Thats the way the college wants it.

            The historical findings of most all of these incidents are phony will not be allowed.

            1. I saw no narrative in the press release. Only in your own persecution complex.

          3. Well, the part of the press release describing the graffiti as “anti-Semitic” might cause people to form an opinion.

            1. Yeah, they really went out on a limb, suggesting that a swastika is considered an “anti-semitic” symbol.

      2. I’m not spinning yarns, just guessing.

        1. I would point you to the exemplar of the righties narritivism below our comments as to the dangers of allowing yourself to guess.

          Not that you or I will become the paranoid losers they are, of course. That takes a lifetime of talk radio.

  7. I don’t really understand why it matters whether it was a “hoax” or not. Even if it was sincere, it’s graffiti. Someone scribbled something on the ground. Why would anybody get worked up about this? Nobody rationally thinks there are hordes of Nazis rampaging through New Haven.

    Anyone who would be a target of theoretical Nazis in New Haven is a trillion times¹ more likely to be mugged for his/her wallet than attacked by Nazis.

    ¹ Approximately.

    1. We have two nutty narratives going on in the US right now. One is on the right, that liberals (and or)/Jews/members of minority groups/Democrats are plotting to “import” millions of non-whites to “replace” the white population and guarantee a progressive majority. The other is on the left, that there is a large white nationalist/racist/antisemitic minority that largely kept its for the last several decades, but now has been unleashed by Trumpism (never mind the academic study showing that intolerance has actually decreased since 2016). Going hysterical every time one sees a swastika, without considering context or undertaking investigation, is part of the latter.

      1. there is a large white nationalist/racist/antisemitic minority that largely kept its for the last several decades, but now has been unleashed by Trumpism (never mind the academic study showing that intolerance has actually decreased since 2016).

        I don’t know how large it is, but it exists and is both active and violent. Whether Trump “unleashed” them or not he seems to like them well enough.

        I remember your post on the study which, IIRC, was kind of a shaky basis for your claim.

        1. Whether Trump “unleashed” [a large white nationalist/racist/antisemitic minority] or not he seems to like them well enough.

          Why do you keep perpetrating hoaxes?

          The “Fine People” Hoax Funnel

          Quote:
          The press created the hoax by consistently and intentionally omitting the second half of President Trump’s comments about Charlottesville. If you only see or hear the first half of what the president said, it looks exactly like the president is calling neo-Nazis “fine people.” But in the second part of Trump’s comments, he clarified, “You had people in that group who were there to protest the taking down, of to them, a very, very important statue and the renaming of the park from Robert E. Lee to another name.”

          In other words, the president believed there were non-racists in attendance who support keeping historical monuments. To remove all doubt, the President continued with “I’m not talking about the neo-Nazis and the white nationalists, because they should be condemned totally – but you had many people in that group other than neo-Nazis and white nationalists, okay?”

          1. Fine people don’t show up for rallies organized by the likes of Jason Kessler, and neo-Confederates aren’t fine people in any case.

            1. Fine people DO show up for rallies when the town fathers decide to erase history because of political correctness. So your view here is flat-out incorrect.

              1. Erase history? Are you insane?

                I’ll tell you who wants to erase history. It’s the neo-Confederates who want to see Lee and the other traitors as some sort of great heroes fighting in defense of ??? By their own words it’s clear that they were fighting to maintain slavery, though many, like you, want to erase that.

                We’ve had 150 years of erasing the history of what the Confederacy, Lee, and others actually stood for. It’s time to fix that, and quit honoring them.

                1. They want to pretend the Confederates won the war. But don’t you try “erasing history”!!!

            2. More important, an organized rally that got a great deal of prior publicity managed to attract a few hundred people. This is not a mass movement. Compare, e.g., the Nation of Islam, where Farrakhan can get 20K people to listen to him denounce whites, gays, and Jews, with minor celebrities in the audience and powerful politicians willing to chat him up. I agree that the far right has become more active and organized, but I think that’s primarily because social media makes it much easier to do so than in the days when you had to surreptitiously meet in a seedy motel conference room. It’s also increasingly engaged in violence, but it’s not clear what that means. There was a spasm of far left violence in the early 70s, but that marked the end of things, not the beginning.

              1. “This is not a mass movement.”

                They’re quite willing to use violence, so it doesn’t take very many of them to cause disturbance. Then there’s a larger circle which consists of people who won’t use violence themselves, but are only too happy to serve as apologists for the ones who do. So the Portland Max killer had no choice but to kill the people who were trying to protect a couple of teenage girls from his ranting at them. Because you have to stand up to people who try to infringe your free speech, or whatever reason was offered on AM radio this morning.

                Yes, there are some leftists willing to use violence, too. I’m not claiming otherwise. But the last mass killing by would-be leftists happened A) outside the US, and B) was largely confined to the cult members who went to Jonestown. Whereas, in Oklahoma City, they tried to start the race war going by blowing up a daycare full of kids. These are both evil acts by evil people, but they aren’t equal and opposite.

              2. an organized rally that got a great deal of prior publicity managed to attract a few hundred people. This is not a mass movement.

                Whether it’s a mass movement or not, it managed to include at least one murderer. And the fact that it was “well-publicized” suggests that those who chose who attend were far from being fine people.

                As I said above, whatever the size of the movement, it is clearly both active and violent.

      2. One is on the right, that liberals (and or)/Jews/members of minority groups/Democrats are plotting to “import” millions of non-whites to “replace” the white population and guarantee a progressive majority.

        Is this supposed to to a controversial claim? Why?

        We know it happened in the UK:
        https://www.dailymail.co.uk/debate/article-1222977/MELANIE-PHILLIPS-The-outrageous-truth-slips-Labour-cynically-plotted-transform-entire-make-Britain-telling-us.html

        We hear leftists all the time gloating about how demographic change will give the Left a “Permanent Majority”. We see the Left actively encouraging more people to come here illegally, while fighting to keep the US from blocking them from coming in, or deporting them once they do get in.

        Is there also a “right wing plot” to claim that 1 + 1 = 2?

        1. Replacement of whites and the Bell Curve. That’s the intellectual right these days.

    2. “Nobody rationally thinks there are hordes of Nazis rampaging through New Haven”

      Oh wow, you mustn’t have been in the US for the last four years. Never watch CNN or read the NYT? Do you live in the Antarctic or something?

      1. That’s why he said “rationally”, not “nobody thinks …”

        People do seem to think that, but they’re doing so irrationally.

      2. Your lack of cites is telling.

  8. Who actually has the videotape now? The cops or Yale? Does anyone here know?

    1. Yale is the cops.

      Its a university police department.

  9. I can think of at least one legitimate reason not to release the surveillance footage – perhaps it doesn’t clearly identity the perpetrators (maybe there was a malfunction in the recording or their faces were somehow obscured) but they don’t want the perpetrators to realize that. Right now, the people who did this are probably worried about getting caught and if they see that the footage doesn’t show who they are, they’re more likely to think they got away with it. That doesn’t meant that there isn’t other evidence or an investigation but it’s a lot harder to catch them with the surveillance footage. If the perpetrators think there is a surveillance video that identifies them, one of them might feel pressure to come forward in the hopes of making a deal for a lighter punishment.

    1. Don’t go spoiling everyone’s fun like that.

    2. People who are worried they’re going to get caught tend to be a lot more cautious than people who think they got away cleanly

      People who are less cautious, are more likely to get caught

      So you have that exactly backwards

      1. You could be right – I only offered this as a possible reason why they may not be releasing the surveillance tape and it was of course purely speculation on my part. OTOH without knowing anything about the actual perpetrators, it’s difficult to say how concerned they were about getting caught and whether they even knew that they were being filmed at the time. I’m seen teenager look around to see if anyone is watching them and take off running as soon as they spot someone in view and I assume it was because they were probably doing or about to do something that they knew they shouldn’t and didn’t want to risk getting caught. It could be the vandals didn’t even know or forgot about the security cameras (never been to that campus so I have no idea how noticeable they are) and just looked around, didn’t see anyone and spray-painted and took off thinking that they were in the clear. Now that they know they might have been recorded in the act, it could make them nervous and thinking about whether it’s better to take their lumps now in the hopes of getting off lighter than if they make the police work harder for it. But again, this is just pure speculation at this point.

        1. It’s one thing to spin out theories based on the known facts. You can get some interesting stories that way.

          It’s another thing to pretend the stories are real. This is true for people concerned about the Nazi-vandals, and people concerned about the Nazi-hoax-vandals. You (unless you are the vandal) don’t know which one it is, and there’s a real possibility that it’s neither one.

  10. I suspect this is little more than “Trump is a Nazi,” probably not such a rare opinion at a place like Yale.

    I don’t think we are all absolutely obligated to all collectively shit in our collective pants every time a symbol like this appears.

    1. I understand it’s graffiti, it was spray-painted, not chalked, it’s damage to property. It’s an offense. Yale has every right to protect its property. And the message is in extremely poor taste. But I nonetheless don’t think we are obligated to treat the person the same as if he or she had planned a mass shooting.

      1. Hell, we’re not obligated to treat them like that even if they were actually a neo-Nazi.

        Because being a shitbag graffiti-er is still a minor property crime, not, uh, mass murder.

        (And contra assertions widely made, “being a POS neo-Nazi asswipe” does not magically, automatically, or even probabilistically connect one to being a mass murderer.

        This can be proven by … well, counting the number of them that are mass murderers, compared to the claims about how many there are [and, hell, the undeniable existence of “white power” prison gangs, members of which regularly … leave prison].

        They’re wastes of carbon, but they’re just … not ravening murderers, demonstrably.)

        1. “They’re wastes of carbon, but they’re just … not ravening murderers, demonstrably”

          Get enough of them together in one place, though, and things can change. Yes, sometimes “one” is enough of them in once place, sometimes it takes way, way more. Trying to make sure their gathering place is, uh, somewhere else is still a good idea.

  11. Hmmm. Can’t you think of any reason the video would not have been splashed all over the place?

    1. Because anyone who watches the video gets stalked by a creepy ghost with hair over her face?

      1. I mean, her hair pulled over her face, not facial hair, that would be silly, she’s a ghost, not a werewolf.

  12. “Organizations in the Yale community, such as the Law School’s Office of Student Affairs and the Joseph Slifka Center for Jewish Life, responded to the incident on Monday, condemning the action and offering support to students.”

    Offering support? To students who I suppose have learned for the first time that there are people capable of scribbling swastikas in public places?

    Yale Law is what the Rev calls one of our great liberal-libertarian institutions of higher learning. When these students graduate, the public will expect them to be able to handle cases, if necessary, involving very triggering facts – maybe disfigurement and death. I don’t know how many of them will deign to do criminal cases, but they should at least be prepared to look at and analyze graphic crime-scene pictures and so forth.

    You’re saying that the brightest students, at one of our finest institutions, will freak out so much over graffiti that they need counseling?

    1. Or am I misunderstanding the word “support”?

      1. It’s not about coddled students so much as university PR. The corporate nature of modern universities means that students are now treated as clients (internal documents will even call them that). So whenever something unpleasant occurs, serious or not, universities go out of their way to demonstrate that they’re supporting client needs. The vast majority of students won’t seek out any kind support, but the school is covering its PR butt.

        1. There’s another PR consideration, and that’s whether they want to portray their students as easily “triggered,” which would feed into what the administrators probably see as a malicious right-wing narrative about coddled snowflakes.

          1. On the plus side, it shows actual nazis that if they want attention, all they need to do is commit petty vandalism, they don’t have to go off and commit some awful hate crime.

          2. When choosing whether to be anti-hate or pro-hate, most people don’t have to think about how they’re going to answer

            The tradeoff is simple to calculate:

            1) we can say we take it seriously, and offer “support” to people who don’t need it. This costs us nothing, and makes us look like decent people who just want to help.

            2) we can lead off by saying it’s probably a hoax, thereby incurring at least irritation, if not more, from the target demographic. This earns us the respect and support of Eddy, which YLS desires because… uh… we’ll fill this part out later.

            1. Would you mind quoting the part where I said it was “probably a hoax”, as opposed to not knowing? Thanks in advance.

              1. You know what “decent people” do? When they make a misstatement, the issue a retraction and an apology.

                Therefore, I do not expect a retraction and apology from you for your misstatement.

  13. “Anyone who has been following such ‘Trump plus swastika in very liberal environments’ incidents would immediately suspect one of two things: (1) a hoax; or, perhaps more likely (2) the vandal(s) in question weren’t trying to say ‘I support Trump and he’s a Nazi,’ but rather ‘I hate Trump because he’s a Nazi.'”

    Of course, there’s also the possibility that you have not one, but two (competing) vandals at work. So, you might have someone who put “Trump” on, and then somebody added a swastika, or vice versa.
    Mr. Trump is NOT a Nazi. Nazis were effective and efficient. Mr. Trump lacks these qualities. He wishes he could be a dictator, but has no idea how to make this into reality.

    1. Or you could have just voted hoax without all of the other spurious BS

    2. Trump is not a Nazi for the simple reason that Nazis were anti-capitalist collectivists, pretty much the complete opposite of Trump.

  14. We all know these so-called “hate crimes” are all fake. I don’t think a single one reported has ever been confirmed since 2016. Not one.

    1. From the folks who knew Obama was (is) a Muslim Kenyan communist.

      Replacement of the birthers can’t occur too soon.

      1. When the mob comes for Cuckland and no one says anything is anyone, but Cuck going to be surprised?

        1. The mob that came for Artie Ray? A bunch of hypocritical losers?

      2. Obama was simply incompetent; his actual beliefs hardly mattered.

        1. The lies, gullibility, and bigotry of his right-wing critics mattered enough to cost them the culture war

  15. Where in that story was there any claim that a “hate crime” occurred? I see a claim about an act of hate and a symbol of hate, but no statement by the law school that a hate crime had been committed. Connecticut Public Act 17-111, which modified the state’s hate crime laws, may cover the act in question, but that would entail further analysis. I see no reference by the law school that the incident constitutes a violation of that law.

    If only there was a blog where persons learned in the law and interested in educating the public, could take the known facts and analyze them in reference to potentially applicable laws. A headline: “did a hate crime occur?” Would then be followed by legal analysis of the CT hate crime laws.

  16. Hoax
    Or you can go with the dozen actual Nazis in the country sure do get around a lot.
    But maybe just maybe it’s not the end of the world
    Sensationalizing every one of these things of which most maybe all are hoaxes is getting comical

  17. Prof. Bernstein’s thinking that this is a hoax and that Yale is hiding that fact seems to have a lot of company in the comentariat.

    The Venn Diagram of that set and the set of those who have decided that hate crimes are all hoaxes seems to have a lot of overlap.

    A preview of a bit further down the road which you tread.

    1. But the truth is almost every single supposed so-called “hate crime” has been a hoax. It would seem to me that people who think these things actually happen are the ones who are crazy.

    2. Nazis were staunchly anti-capitalist collectivists with a political program that had a large overlap with Sanders and Warren. The idea that any Nazi would support a nasty capitalist like Trump is absurd.

      Anti-capitalist collectivism is the predominant ideology at Yale, but people holding those beliefs have long ago gotten rid of the swastika symbol.

      So, if we put that all together, it’s not a hoax: this was likely carried out by an actual fascist, and like actual fascists, the person hates Trump; the only thing that is mildly incongruent about it is that they likely didn’t understand that the swastika represents their own ideology, but that is a common confusion among the kind of people attending Yale as well.

      1. That’s pretty clever ideology you’ve got there NOYB2. Saves you the work of learning anything. You have that in common with 20th century Fascism—at least insofar as ordinary Fascist supporters believed anything. Mostly, they just believed in their tribe and their leader.

        Have you noticed Bernstein’s assertions about how small and impotent are right wing hate groups in America today? Either Bernstein doesn’t get that tribe-and-leader bit, or he hasn’t heard about Trump’s rallies. That old-time style? Trump has it, right down to the snarling vituperation of the guy at the microphone.

        Contrary to your fantasies, there really wasn’t any ideology in Nazism. Scholars have been trying to figure it out ever since, and they all come up dry. Except that everyone understands what made it go: “Follow me, and we’ll get the people you hate.”

      2. Nazis were targeting a subgroup first and foremost. Turns out, that’s all ya need – your economics and rigid categorization bows before tribalism.

  18. Given the similarities between modern progressivism, the prevailing ideology at Yale, and 1930’s fascism, I think it’s a good bet that the vandalism was, in fact, perpetrated by a fascist, albeit a Trump-hating fascist.

    1. So you don’t know what fascism is either. Whatever it takes to own the libs.

      Do Dems are the real racists next!

  19. To all those insisting all hate crimes are hoaxes. The DoJ disagrees.

    https://www.justice.gov/hatecrimes/hate-crimes-case-examples

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Today in Supreme Court History

Today in Supreme Court History: October 16, 1898

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10/16/1898: Justice William O. Douglas's birthday.

Justice William O. Douglas

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Douglas was probably not the worst jurist to serve on the court, not the worst human being, but impressively high on both scales.

    1. I mean, results do matter, so there’s no way you can put him over some of the post-Civil War types who neutered the Reconstruction Amendments and such.

      But in terms of legal reasoning, he was as bad as it gets. He just didn’t care. You can read Griswold 100 times and you can’t divine a sensible legal doctrine from it. He made ridiculous pronouncements like that our institutions presuppose the existence of a Supreme Being. His First Amendment jurisprudence consisted of pretending the balancing of competing interests that make free speech cases so difficult didn’t exist. He tried to rule the Vietnam War unconstitutional, but joined the Korematsu majority.

      He was just pretty damned bad at his job, which is why he really has had almost no influence on the law.

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Has China opened a quantum hype lead over the US?

Episode 282 of the Cyberlaw Podcast

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 Our interview is with Sultan Meghji, CEO of Neocova. We cover the large Chinese investment in quantum technology and what it means for the United States. It's possible that Chinese physicists are just better than American physicists at extracting funding from their government by hyping their science. Indeed, it looks as though some quantum tech, such as the use of entangled particles to identify eavesdropping, may turn out to have dubious military value. But not all. Sultan thinks the threat of special purpose quantum computing to break encryption poses a real, near-term threat to US financial institutions' security.

In the News Roundup, we cover the new California Consumer Privacy Act regulations, which devote a surprising amount of their 24 pages to fixing problems caused by the Act's feel-good promise that consumers can access and delete the information companies have on them.

Speaking of feel-good laws that are full of liability land mines, the Supreme Court has let stand a Ninth Circuit ruling that allows blind people to sue under the Americans with Disabilities Act if websites don't accommodate their needs. Nick Weaver and I explore a few of the harder questions raised by this seemingly simple mandate (you can accommodate the blind by providing a "read aloud" option, but what about people who are blind and deaf?) and the risks of making law by retroactively imposing liability.

Weirdly for a populist administration that says it mistrusts the big social platforms for their restricting of conservative speech, the Trump trade negotiators are actually expanding Section 230 immunities for Silicon Valley that both left and right have begun to question. The expansion is buried in hard-to-amend and even-harder-to-repeal trade agreements. By way of explanation, I lay out the Realpolitik of trade deals. As if to prove my point, the US and Japan have signed a Digital Trade Agreement that has much the same provision.

Nick and I muse on the rise of Commerce Department sanctions on individual companies. In a way, such sanctions are a less harsh alternative to OFAC sanctions, which include property seizures, but they are also like antibiotics—they either destroy the target or help it develop better resistance for the future.

Does TLS stand for "Tough Luck, Sucker?" That's the message of a new and clever form of malware that has been, softly attributed to the Russian FSB.

Apple, having banned, and then unbanned, an app that locates police activity in Hong Kong, has now re-banned it. Tim Cook offers an explanation for the latest move that triggers Nick's bovine excrement detection system. In a Final Four of Hypocritical Surrender to the PRC, LeBron James and the NBA give ESPN a run for its money. South Park fails to qualify.

Matthew Heiman and I discuss India's effort to create a national facial recognition system. Naturally BuzzFeed thinks it's Evil. Not enough people of color in the training set, apparently, or perhaps it's too many. Or Modi is too much like Trump. Or some damn thing. Look, it's Evil, okay? So shut up and leave BuzzFeed alone.

Nick and I consider DHS's request for the power to subpoena ISPs to identify owners of compromised systems. I critique Herb Lin's suggestion that the ISPs can solve the problem without giving data to DHS.

As Matthew notes, it was just last month that the French government gave the world a stiff-necked little lecture on respecting sovereignty in cyberspace. So why are French police helping reprogram computers in Latin America? Because it's different when the French are doing it than when it's done to them, I surmise.

A recent "good guy with a keyboard" story offers me one more chance to tout my views on hacking back.  I ask why someone who's rescued hundreds of victims from ransomware should have to worry for one minute about being prosecuted for compromising (again) the already compromised C2 machines that apparently held the keys.

Matthew and I try to simplify a complex ruling from two FISA courts. Among the takeaways: The FBI has been running a lot of searches against 702 databases (3.1 million a year!), which greatly complicates its compliance program, and the FISA courts are overusing the 4th amendment, which in FISA minimization cases is like trying to do brain surgery with a chainsaw.

Argh! That embarrassing Bloomberg Supermicro story is back. Sort of. Wired has shown that something like it could really be done. Which, Nick points out, we already knew.

I give a shoutout to Jennifer Daskal and Peter Swire for their useful overview of the UK-US CLOUD Act, but I wonder if the agreement's mutual "no targeting of the other country's nationals" assurances are a scalable solution.

Finally, Matthew reviews the second volume of the SSCI report on its investigation into Russian election interference. The TL;DR? The Russians did what you think they did. The closest thing to a surprise? After starting out just trying to hurt Hillary, by the end the Russians seem to have been trying to help Trump too.

Download the 282nd Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “It’s possible that Chinese physicists are just better than American physicists at extracting funding from their government by hyping their science.”

    I wouldn’t doubt this since we have mouth-breathers on the right downgrading education by pushing home schooling, religious schooling, and reducing funds for public schools and universities.

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Who Is, and Is Not, On the Demand Justice #SCOTUS (Not-So) Shortlist?

Omitting all "partners at corporate law firms" excludes most judges from Hillary Clinton's hypothetical shortlist

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Demand Justice has released a "shortlist of possible [Supreme Court[] nominees in the next Democratic administration." The group selected 32 "brilliant lawyers who have spent their careers fighting for progressive values and represent the diversity of our nation."

Who was selected? The nominees generally fall into 5 broad categories:

  • Academics: Michelle Alexander (Union Theological Seminary),  James Forman, Jr. (Yale), Pamela Karlan (Stanford), M. Elizabeth Magill (Virginia), Melissa Murray (NYU), Bryan Stevenson (NYU), Zephyr Teachout (Fordham), Timothy Wu (Columbia),
  • Progressive Litigators: Brigitte Amiri (ACLU), Nicole Berner (GC SEIU), Deepak Gupta (Gupta Wessler), Dale Ho (ACLU), Sherrilyn Ifill (NAACP LDF), Shannon Minter (National Center for Lesbian Rights), Nina Perales (MALDEF), Thomas A. Saenz (MALDEF), Cecillia Wang (ACLU),
  • Current/Former Government Officers: Xavier Becerra (California AG), Sharon Block (one of the three NLRB appointments at issue in Noel Canning), Vanita Gupta (Former Obama DOJ), Lawrence Krasner (Philadelphia DA), Catharine Lhamon (U.S. Commission on Civil Rights), Katie Porter (House of Representatives), Jenny Yang (Former EEOC Chair)
  • Federal Judges: Richard F. Boulware (D. Nev.), Jane Kelly (8th Circuit), Cornelia Pillard (D.C. Circuit), Carlton Reeves (S.D. Miss.)
  • State Judges: Mariano-Florentino Cuéllar (California Supreme Court), Anita Earls (North Carolina Supreme Court), Leondra Kruger (California Supreme Court), Goodwin Liu (California Supreme Court),

Who didn't make the cut? We can speculate. In July 2016, the Hill published a potential shortlist from a Clinton administration. Of these 11 names, only three made it onto the Demand Justice List: Judge Jane Kelly (8th Cir.), Justice Goodwin Liu (California Supreme Court), and Justice Mariano-Florentino Cuéllar (California Supreme Court). Eight names were left off the Demand Justice list:

  1. Chief Judge Merrick Garland (D.C. Cir.)
  2. Judge Sri Srinivasan (D.C. Cir.)
  3. Judge Paul Watford (9th Cir.)
  4. Judge Jacqueline Nguyen (9th Cir.)
  5. Judge Lucy H. Koh (N.D. Cal.)
  6. Judge Patricia Millett (D.C. Cir.)
  7. Senator Amy Klobuchar (D-Minn.)
  8. Senator Cory Booker (D.-N.J.)

Garland's re-nomination was never a serious option. And it isn't clear that Demand Justice considered elected officials, such as Klobuchar and Booker. But what about the other Obama appointees? The not-so-shortlist excluded many possible nominees-by design. Demand Justice explains:

None of the lawyers on our list are corporate lawyers, in keeping with our call for the next president to avoid nominating any more lawyers who have been partners at corporate law firms or in-house counsel at large corporations. Instead, our list boasts a wide range of former public defenders, public interest lawyers, academics, and plaintiff's lawyers.

Judges Paul Watford, Sri Srinivasan, Jacqueline Nguyen, Lucy H. Koh, and Patricia Millett all worked in private practice. Those careers, apparently, rendered them ineligible for the Supreme Court. Also excluded is Judge Ketanji Brown Jackson (D.D.C), whom Tom Goldstein tapped to replace Justice Scalia. She worked in Big Law.

Who else would not make the list? Justice Sotomayor was a partner at Pavia & Harcourt. She would have been out. Justice Kagan briefly served as an associate at Williams & Connolly. Would she have made the cut?

Ultimately, I welcome these lists. They provide the public with insights into the type of jurists an administration would consider. Though, it's difficult to know how much weight to put on Demand Justice's roster. Unlike President Trump's original list, the current list was not released–or even endorsed–by any campaigns.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Why are they publishing this hit list? Trump and the Republithugs will have all these folks killed or doxed into uselessness, just like they’ll do to the Ukraine whistleblower, if they ever find out who that is.

    1. What Ukrainian “whistleblower”!

    2. Is this the “whistleblower” who is a Joe Biden supporter and wants to testify anonymously about matters that he has no first hand knowledge of, and just heard about through gossip?

      That whistleblower?

    3. I don’t love the melodrama of your comment, but I do love the subsequent posts proving you correct.

        1. Supposed to ROFL emojis

  2. I think that they have a problem here. Top law school grads seem mostly either to go into academia or join big corporate firms. Academics often write controversial articles, that may adversely affect their confirmability. Then, there is the problem, that has surfaced with the candidacy of Camela Harris that a large percentage of government lawyers were prosecutors at some point, or, like her, top prosecutors, who inevitably have jailed POC, likely out of proportion to their percentage of the population (because POC are typically more likely to break laws). Besides, former prosecutors almost invariably take their preference towards and trust of LEOs onto the bench. Public defenders often come from the bottoms of their law school classes. In the end, I suspect that these constraints would greatly reduce the quality of acceptable judicial candidates.

    Of course, then the question arises whether this is a bug or a feature. Is the real goal to reduce the competence of the Judiciary, in order to increase the acceptance of progressive policies that would be more likely rejected by a brighter and better qualified Judiciary.

    1. “Public defenders often come from the bottoms of their law school classes” (citation needed)

  3. Snort. “DemandJustice is Brian Fallon’s outfit.

    “In 2016, Fallon served as the National Press Secretary for Hillary Clinton’s presidential campaign. ”

    Anyone from Wisconsin on it?

  4. I may as well be the first to say it – I thought there were no Democrat or Republican judges, just “judges”?

    Still, I am also glad they put out these lists, and it helps us to not pretend.

    1. I thought there were no Democrat or Republican judges, just “judges”

      Did you? I didn’t.

      1. Why the snark? I was playing off the comments of Chief Justice Roberts, who said that there were no Obama judges (after President’s Trump’s complaint of bias) and that there were just judges.

        1. Not intended as snark, sorry.

          I’m familiar with Roberts’ comment. I sort of assumed you didn’t agree with it any more than I do.

          Of course there are many cases – probably the vast majority – that have no political salience, so the judge’s political views are irrelevant.

          1. Thanks!

            I agree, the vast majority of cases the judge’s political viewpoints are mostly irrelevant. However, I would add that when it is not irrelevant, it makes a big difference one way or another.

  5. 32 “brilliant lawyers who have spent their careers fighting for progressive values and represent the diversity of our nation.”

    This is the description of a politician’s job, not the job of a Supreme Court justice, who is to prevent governmemt from taking on new powers at its whim, sans constitutional amendment.

  6. Very few straight white males listed. Which, on the one hand, I support- we need a more diverse bench. On the other hand, that may connect to OP’s point about big firm law practice. A lot of liberal white male lawyers go cash in rather than going to work in public interest law.

    1. We need more wise latinas, amiright?

      1. Maybe we could just try to not have two white male children of beltway insiders who literally went to the same private high school on the Court.

        1. Agreed, and to your comment before, lets have some non-ivy leaguers too with more diverse work experience. I vote for Eugene Volokh regardless.

          1. We only have 2.5 ivies represented. (Ginsburg was only at Columbia for a year IIRC) The bench would suddenly be more diverse if there were a Penn grad. Or a Stanford grad. (I know its not an ivy, but it’s as prestigious if not more than all but Harvard and Yale for law.) While there are only nine slots there could still be more than 2-3 ivies represented. There are 11 more schools in the T-14. It could be more diverse even in terms of its elite schools.

        2. “white male ”

          Why does their race and sex matter to you?

          Your complaint I think is they are “beltway insiders who literally went to the same private high school”, hence share to close of an outlook.

          If they were black female children of “beltway insiders who literally went to the same private high school” that would not bother you?

          Focusing on race and sex is racist and sexist.

          1. Suppose you were part an alien anthropological team studying America, and you were looking at their dispute resolution procedures. You find out the demographics of every person who has served on the Court. Then you looked at the demographics of the society that Court serves. What would you conclude about that society?

            1. It’s a historically male dominant society that has become more co-equal between the sexes since chemical birth control has become widely available.

            2. It’s this mentality that confirms my long-held feeling that non-whites are largely cultural outsiders in America, and always will be. They are almost always disaffected and angry. Not a good recipe.

              1. I don’t think non-whites are always disaffected and angry; I know enough of them, and that hasn’t been my experience.

                Now, the non-whites who climb to positions of power within the left? Yeah, absolutely. But the whites next to them are disaffected and angry, too; It isn’t their skin color, it’s that they’re left-wingers.

                If you’re pushing socialism in a prosperous capitalistic nation, OF COURSE you’re going to be disaffected and angry. How could you not be?

          2. To answer your question more directly, it would still be weird, but much less bothersome. Pretending that race and sex don’t have an affect on outlook is absurd.

            1. Sorry. “Effect.”

            2. So, if kavanaugh and Gorsuch were daughters of black DC insiders who went to the same private school, its ok with you?

              1. It’s not great, assuming they also have practically the same legal/professional background (Harvard/Yale law, DC big law, stints in the executive branch). It’s still better given both the current and historical demographics of the Court and the current demographics of the country generally, and the legal profession in particular.

                1. So, your real complaint is that they are “white males”

                  Racist and sexist thinking no matter what imaginary aliens might think.

                  1. Perhaps. But it also doesn’t have the convenient side effect of keeping people who look and think like me and you in power in perpetuity at the expense of everyone else. You and the Trump administration can claim you’re non-racist Non-sexist as much as you want, but when your party generally and judicial nominees in particular consistently skew heavily towards a few demographics, you’re probably not as non-racist or non-sexist as you believe you are.

                    But, you probably assume that you’re non-biased and objective on the issues of race and sex. And why wouldn’t you be? If POC and women would just ignore their entire life experiences and look at things LOGICALLY they’d see that conservative white men like you understand race and sex best.

                    You’re not of course. But you tell yourself that so you don’t feel morally compromised by bigotry or sexism and conveniently don’t have to question your own place and power in society. It’s a win win. So congrats?

                    1. White guilt, male feminism and “white knighting”

                      Impressive trifecta.

                    2. Bob,

                      I don’t feel guilty. I just want power to be shared more equitably with the people it’s used against.

                      “Male feminism” tells me you’re not a serious person, so I’m not even going to engage with that.

                      You can label me a white knight if you want, but I can think of worse things to be in the world than a self-indulgent internet commentator.

                    3. LawTalkingGuy: You haven’t heard of male feminism and male feminists?

                    4. It’s a nice story…. of course, the counter-point is Miguel Estrada.

                      Miguel Estrada was fillibustered by the Democrats for a circuit court judge for two reasons.

                      1. He was conservative. But more importantly…
                      2. He was Hispanic.

                      And if there’s one thing liberals hate more than white conservatives, it’s non-white conservatives.

        3. “Maybe we could just try to not have two white male children of beltway insiders who literally went to the same private high school on the Court.”

          Sotomayor and Kagan both grew up in NYC and went to Princeton. I assume you complained about their nominations for the same reason?

          1. I wasn’t necessarily thinking about it at the time, although the school thing for Kagan does jump out.

            While they did share an undergraduate education and a similar legal one they had quite different family and professional backgrounds. Kagan was a SCOTUS clerk, academic, and White House insider and solicitor general. Sotomayor by contrast was a prosecutor who actually tried cases in a state court, a civil litigation attorney at boutique firm, and a trial judge prior to being on the circuit court.

            With Kavanaugh and Gorsuch, it’s not just the school, it’s how much of their professional and family background was the same.

    2. The question is, do we really need to over-represent non-straight judges? And doesn’t concentrating on ethnic and gender identity mean de-emphasizing competence?

      But, of course, competence isn’t the point of this list.

      1. No. Because there are far more qualified people than positions available. Especially for SCOTUS, which is a group of nine, nominated one at a time every few years. So it is very easy to find qualified people of diverse backgrounds if you care to look.

        1. Some people look at a wealth of qualified people, and say, “Cool, we can go for hyper-qualified, and still have enough to pick from!”

          Others look at a wealth of qualified people and say, “Cool, we can pick people on the basis of something other than their qualifications, like the melanin content of their skin, or their sexual quirks!”

  7. It would be nice if there was more legal diversity on the federal appellate bench generally. People tend to forget that a lot of what SCOTUS and the appeals courts do is to provide guidance to lower courts (including state courts), practitioners, and federal agencies.

    SCOTUS could use a justice with significant criminal defense experience (actually representing clients in person, not just appointed appeals). It could use some justices with significant trial court experience generally (there is only one former trial court judge on SCOTUS right now). Maybe some justices who, God forbid, might have had any significant state court experience at any level (state courts end up construing federal statutes all the time). Maybe a patent attorney or anyone with IP experience. I know there are “biglaw” attorneys on SCOTUS, but are there any with significant bankruptcy experience?

    Although there are only nine slots, there could be a lot more legal diversity.

    1. I have always liked Jane Kelly as a Supreme Court prospect in part because of her background as a federal public defender for nearly 15 years.

      1. Me too. And it’s also important to note that someone who is appointed the federal defender for a district is chosen by the circuit court where the district is located. So it’s not just some bottom of the barrel attorney who couldn’t get another job.

        1. “Kelly became an assistant federal public defender in the Northern District of Iowa, in 1994 and served as the supervising attorney in the Cedar Rapids, Iowa office, from 1999 to 2013.”

          Seems like a mid level lawyer.

          She went to yale Law. I thought you wanted more diversity?

          1. Harvard. I stand corrected, apparently she wasn’t appointed as the federal defender. The circuit-appointed defender appointed her to supervise one of the office.

            A woman who is a former public defender serving on the Eighth Circuit would be a big change in comparison to the backgrounds of the Court’s current justices, even if she went to Harvard. See, it’s not just the school, it’s everything about the nominated person. The school is part of it, of course. But again, when you end up with a situation where you nominate two justices back to back with such starkly similar demographics and legal background, I don’t think that’s good for the credibility or quality of the Court long term.

  8. Unlike President Trump’s original list, the current list was not released–or even endorsed–by any campaigns.

    So why are we even talking about it?

    1. Because the Democrats aren’t going to warn us about who they’d put on the Court, this is the best clue we have.

  9. I’m surprised there isn’t a race/ethnicity/gender identity score card out there linked in the article.
    You could also throw in a Law School scorecard as well.

  10. What percentage of these judges attended Harvard or Yale law school?

  11. 1) Judge Dredd
    2) Judge Judy
    3) Mike Judge
    4) Judge Knott

    1. Judge Reinhold?

      1. In recognition of thr playoffs, I nominate Aaron Judge.

  12. Republicans pick judges who are conservative. Democrats pick leftists who are judges. You can deny this all you want but you can’t change the fact that for the past several decades Justices chosen by the left have been a lot more in lockstep with their overlords than the Justices chosen by the right.

    1. Trump’s judicial nominees have been as white and male as the Conspiracy.

      Just the way to-be-replaced clingers like it.

      1. So is this a roundabout way of saying Jews are over-represented in high prestige areas and this needs to change?

        I think you should get to know some of the people you criticize. You might like them more than you think.

      2. I get the idea that the Rev is (a) old (b) white and (c) of Southern origin. Maybe he’s hoping that if he denounces old white Southerners the SJW crocodile will eat him last?

        1. He’s a self-hating goober.

  13. Josh Blackman: It isn’t clear that Demand Justice considered elected officials, such as Klobuchar and Booker.

    Also Josh Blackman: Current/Former Government Officers … Katie Porter (House of Representatives).

  14. Also, is DemandJustice the group that tried to label Eric Miller as unqualified for the Ninth Circuit because his firm often represented parties in opposed to tribal interests and tribal sovereignty? That struck me as incredibly odd because the firm, Perkins Coie, is the go-to Democratic Party firm which represents the DNC, the Democratic Leadership Council, the DSCC and DCCC.

  15. Hi, Josh. Many years ago I taught for one night at South Texas in place of a friend who had to be out of town. It was Torts, not ConLaw. Hope the school is doing well. Jim Brock, JD Georgetown 1960

    1. The guy was Bernie Reiter. Some of your buds might remember him.

  16. Whoever’s comment was ‘flagged for review’
    about 6:15, sorry, was trying to close an ad.

  17. And now the right wing list, headed by Franklin Graham, John Bolton, and Steve Bannon.

  18. Oh, great, Catharine Lhamon, the gal who screwed the campus court system. We may be better off if Trump gets re-elected.

  19. But, but, but …. keeping Garland off was literally worse that Hitler!

    Surely he is the only name on the Democrat list, right?

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Free Speech

University of Louisville Students Can't Sue Escort for Exposing Prostitution in the Louisville Basketball Program

"University of Louisville [current and former] students ... asserted a claim that the publication of Katina Powell's book Breaking Cardinal Rules: Basketball and the Escort Queen resulted in a tortious diminution in the value of their University of Louisville education."

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[UPDATE, 9:46 am, 10/15/2019: I originally inadvertently omitted "students" from the headline; my apologies. (The subhead was correct all along.) The lawsuit, of course, is by some current and past University of Louisville students, not the University itself; I knew that, but as I was editing the headline I somehow dropped that word. Sorry about that, and many thanks to Ben Llaneta for the correction.]

From Hornback v. Powell, decided Friday by the Kentucky Court of Appeals:

[Plaintiffs] alleged that Appellee Katina Powell claimed that she and her daughters engaged in or agreed to engage in sexual conduct with University of Louisville men's basketball players and recruits from 2010 to 2014 in exchange for a fee of $10,000 paid by a University of Louisville employee. This claim was memorialized in a book called Breaking Cardinal Rules: Basketball and the Escort Queen…. According to the record, Powell's claims resulted in the University of Louisville self-imposing a postseason ban on its men's basketball program for the 2015-16 season….

[1. Plaintiffs] first assert that KRS Chapter 529 and KRS 446.070 may be applied in unison to sustain a cause of action against [Defendants (Powell, her coauthors, and her publisher)]. KRS Chapter 529 addresses prostitution offenses, and [Plaintiffs] direct our attention to case law holding that one of the purposes of prostitution statutes is to protect the public health and welfare. KRS 446.070 states that a "person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation[.]" [Plaintiffs] argue that they are "within the class intended to be protected by the statute" (meaning KRS chapter 529), that prostitution and profiting therefrom is unlawful, and that KRS 446.070 may be applied to allow their recovery from [Defendants] for damages sustained by reason of the violation….

[But Plaintiffs] have not demonstrated that Powell or others were charged with or convicted of KRS Chapter 529 violations. Even if [Plaintiffs] had provided such proof, [Plaintiffs] are at best remote and unconnected third parties who cannot reasonably be characterized as being injured or damaged by Powell's alleged unlawful conduct….

[2. Plaintiffs also cite the Kentucky "Son of Sam" law,] which states: "Every person contracting with any person or the representative or assignee of any person accused or convicted of a crime in this state, with respect to the reenactment of such crime, by way of a movie, book, magazine article, radio, or television presentation, live entertainment of any kind, or from the expression of such person's thoughts, feelings, opinions, or emotions regarding such crime, shall pay over to the Kentucky Claims Commission any moneys which would otherwise, by terms of such contract, be owing to the person so accused or convicted or his representatives."

[Plaintiffs] argue that Powell [and other defendants] conspired to profit from prostitution via the book Breaking Cardinal Rules and assert that the [Plaintiffs] are victims for purposes of this statutory provision…. [But Plaintiffs again] provide no citation to the record demonstrating that Powell was "accused or convicted of a crime in this state …." Further, KRS Chapter 346 and the plain language of KRS 49.450(1) allows for the recovery of proceeds by the Kentucky Claims Commission, not by purported victims. And finally, [Plaintiffs] cannot demonstrate that they are "victims" of [Defendants'] conduct in any meaningful sense….

[3. Plaintiffs] go on to argue … that they may prosecute a claim against [Defendants] for "tortious interference with a prospective business advantage."  …. [Plaintiffs] contend that they were prepared to offer evidence of the diminution in value of their University of Louisville degrees resulting from [Defendants'] actions, as well as the testimony of a psychologist who was expected to state that [Plaintiffs] suffered depression, anxiety, stress, and ridicule.

[Plaintiffs] allege that when wearing University of Louisville logos and attire in public places, they are approached by strangers who make rude and hateful remarks because of the events chronicled in the book…. [But] they cannot demonstrate that [Defendants] committed an intentional act of interference with respect to that business relationship, nor that [Defendants'] actions caused damages. In order to sustain a claim of tortious interference with a prospective business advantage, [Plaintiffs] must offer "evidence of a motive or intent … to interfere" with the business relationship. [Plaintiffs] cannot demonstrate that Powell's alleged sexual contact with University of Louisville basketball players and recruits was motivated by an intent to interfere with a business relationship between remote third-party students and the University. Rather, the only motivator cited by [Plaintiffs] was Powell's desire to be financially compensated. [Plaintiffs'] claim on this issue must fail as a matter of law, and we find no error.

[4. Plaintiffs also argue that Defendants'] actions constituted intentional infliction of emotional distress sufficient to sustain a claim for damages…. [But w]hile [Plaintiffs] contend that strangers ridicule them when they are wearing University of Louisville logos on their clothing, they do not allege the degree of severe emotional distress necessary to sustain the cause of action. Further, this tort "requires conduct intended to cause emotional distress in the victim."  No allegation has been forwarded, nor could it be demonstrated under the facts before us, that [Defendants] intended to cause severe emotional distress in the [Plaintiffs]….

I haven't followed the underlying controversy, but here's an excerpt from the NCAA report:

A member of the men's basketball staff arranged on-campus striptease dances and acts of prostitution for enrolled student-athletes and prospective student-athletes (prospects), some of whom were minors, on their campus visits. The conduct occurred in an institutional dormitory predominantly occupied by the men's basketball team and others affiliated with the program. For approximately three and one-half years, the former director of men's basketball operations arranged with a local escort to bring female strippers and prostitutes to Minardi Hall on nights prospects were staying there. The women performed striptease dances for the prospects and, occasionally, enrolled student-athletes. On 10 occasions, one or more of the prostitutes performed sex acts on and/or with prospects, an enrolled studentathlete and a prospect's friend. At leastseven of the prospects who engaged in sex acts were minors under age 18 at the time. On two occasions, the former director of men's basketball operations arranged, through the escort, for prostitutes to have sex at local hotels with the nonscholastic basketball coaches of two prospects being recruited by the institution.

But was the fix in? One of the judges on the panel has two degrees from Kentucky, another has one, and none have any from Louisville. Coincidence?

(Well, OK, the trial judge did go to Louisville for law school, and he ruled the same way as the appellate judges did.)

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  1. Should other Louisville graduates and students have a case against Plaintiffs for diminution of the value of their Louisville degrees?

    Because, of the two alleged harmers of Louisville-degree-valuation, I think they’re the worse offenders.

  2. I don’t think the plaintiffs suffered near the ridicule from the tangential prostitution connection that they are about to suffer from this frivolous lawsuit making the news. I’m guessing that their entirely predictable loss is also going to result in depression, anxiety and stress. Probably also some shame and loss of employment prospects (at least, among any employer smart enough to run a background check). So who do they get to sue for that? Maybe the lawyers that let them file this loser?

  3. Should sue because of implied confidentiality in the hooker-John agreement. No one would go to a prostitute knowing the prostitute will talk.

    1. It’s the problem of the third-party payer though.
      University contracted with hookers. Simultaneously university contracts with the players. Guess who the monkey in the middle is.

    2. Lawyers, Doctors, Priests, and …… hookers ?!?

      I didn’t know. Is there a prostitute equivalent to the Hippocratic Oath?

      1. I don’t know about that last question, but at first it sounded like you were setting up a walking-into-a-bar joke.

  4. The judges’ logic protects the boosters, staffers and coaches who made these events happen from similar liability (and they committed offenses of soliciting, etc.). So the Kentucky judges were helping out both the Louisville and the Kentucky programs.

  5. “KRS Chapter 529”

    Wow, we’ve sure come a long way since KRS-One:

    (NSFW)

    https://www.youtube.com/watch?v=9ZrAYxWPN6c

  6. How come we never hear of a university doing this for its engineering department?

    1. The parallel isn’t complete. Graduated engineering students are employable as engineers, who make plenty of money. Whereas most graduates with basketball degrees aren’t employable as basketball players, and go back to playing on the playgrounds for free.

  7. None of this would have been an issue in the 1st place if it wasn’t for the NCAA placing restrictions on student-athletes getting paid what the free market would pay them. Ergo, coaches find workarounds to “pay” the players in other ways. Two blackmarket economic activities at once.

    As for the lawsuits, the “value” of any university can go up or down for the silliest of things, your team does too well or too poorly and theyre now known as the losers, or the irresponsible party school that doesn’t care about academics. What if an off campus frat house gets caught in a dumb scandal making the university look bad while they broke some laws. Is that reason for a lawsuit?

    1. Maybe they could require that the athletes only screw amateurs.

  8. Wait; the Kentucky law can apply to people who have been accused but **not**convicted??? How does that possibly pass constitutional muster?

    1. People who make money off of crimes fall under the “Son of Sam” laws. That falls under the general police power.
      You don’t have to be convicted of creating contraband to have your ability to profit by distributing the contraband limited/regulated by the state.

  9. I think that, generally speaking, First Amendment considerations should lead to construing laws inhibiting free speech narrowly, and judges should avoid stretching them to cover parties and circumstances that the legislature did not clearly intend to cover.

    For this reason, while I agree that the statutes involved might arguably be stretched to cover this conduct, a narrow construction is appropriate and judges should not be eager to make communications actionable.

    There are good policy reasons for not covering it. If anytime someone involved in a crime wrote about it anyone in the world even indirectly affected by it could sue, debate about importantly issues would be completely stifled.

    I have repeatedly written that I think the constitution leaves states free to pass laws against sexual conduct if it wants. But in tandem with the idea that public debate and legislation is the right way to address most social issues, the constitution provides robust speech protection, and leaves people who engage in that conduct free to try to persuade legislatures that (for example) they should be left alone. If those who engaged in such conduct were so stripped of First Amendment rights that every time such conduct was discussed, anyone and everyone even remotely affected by it could sue, debate on the subject would be stifled.

    1. The goal of the legislation is to prevent people from profiting from crime. They can talk about it, but any money that results is contraband. So your criticism is a bit off-line. As the decision notes, the contraband is the property of the state, not of anyone who can invent a theory of victimhood. So, even with the law in place, it isn’t creating a motive to invent theories of victimhood and sue.

      It does reduce the incentive to “tell all”, which potentially impedes efforts to discover the methods and practices of the crime, and thus, impedes efforts to prevent recurrence. All of which (hopefully) goes into the legislative stew when they draft legislation of this nature.

  10. Sounds like they are not challenging the truth of the allegations.

    Have the rules changed? When I was younger everyone knew that accepting this type of payment would jeopardize amateur status! Once you turn pro there is no going back.

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Today in Supreme Court History

Today in Supreme Court History: October 15, 1883

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10/15/1883: The Civil Rights Cases are decided.

The Grand Opera House in New York denied "another person, whose color is not stated, the full enjoyment of the accommodations."

Free Speech

Minor's Slander Lawsuit Against Another Minor, Prompted by Defendant's Allegations of Rape

Are parents liable for defamation by their minor children?

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An excerpt from a recently filed Complaint (which used the parties' full names, but I decided to abbreviate the names because they are minors):

A. and H. [who are currently minors] dated for a few months, from approximately March 2017 thru July 2017. A. and H. had consensual sexual contact on two occasions.

A. ended the relationship, after which H. continued to express her desire for them to continue dating but that was rebuffed by A. In February 2019, at a homeschool dance, A. first learned that H. had recently told other members of their homeschool group that A. had "raped" her. That statement and accusation is patently false and was uttered maliciously by H. with the intent of damaging A.'s reputation….

The allegation of "rape" constitutes slander per se as it falsely accuses Plaintiff of committing a crime …. Defendant H. orally published this statement knowing its falsity and made it with malice and with the intent to injure, and has injured, Plaintiff's character, personal reputation as well as done damage to Plaintiff's future career and employment opportunities.

[The second defendant] is the mother of H. and has custody and control over her daughter. As such, pursuant to California Civil Code section 1714.1, the misconduct of H. is imputed to her mother, and [the mother] is jointly and severally liable for the misconduct of H.

Therefore, in addition to general damages and injunctive relief, Plaintiff is entitled to an award of punitive damages against Defendants in an sum appropriate to punish and deter such misconduct in the future, in an amount of not less than $200,000.

Two interesting practical and legal twists:

  1. Section 1714.1 provides, in relevant part,

Any act of willful misconduct of a minor that results in injury or death to another person or in any injury to the property of another shall be imputed to the parent or guardian having custody and control of the minor for all purposes of civil damages, and the parent or guardian having custody and control shall be jointly and severally liable with the minor for any damages resulting from the willful misconduct….

[Such parental liability] shall not exceed [$45,000] for each tort of the minor, and in the case of injury to a person, imputed liability shall be further limited to medical, dental and hospital expenses incurred by the injured person, not to exceed [$45,000]….

Does this extend to libel cases? No, suggests a trial court (nonprecedential) decision, Caplin v. Harvard-Westlake School (Cal. Super. Ct. 2008). That case involved chiefly emotional distress damages rather than reputational damages, but its logic would apply here:

The damages allegations [in this case] are of a psychological and emotional nature to Plaintiffs…. Plaintiffs' attempt to analogize property damage to the [insulting internet postings on plaintiff's site] is without merit …..

Even assuming that the nature of the injuries complained of fall within the ambit of Section 1714.1, Plaintiffs' seventh cause of action would nevertheless fail, as the only damages allowed under the statute are for "medical, dental and hospital expenses …." Here, the allegations do not support a claim to recover such expenses, as the damages sought are for psychological and emotional injuries rather than for physical injuries….

I'm inclined to think that the Caplin analysis is right, and would apply fully to defamation cases. The statute contemplates holding parents liable for physical injuries that require "medical, dental and hospital expenses," not reputational injuries, and for damage to property, which generally isn't seen as covering reputation. But I don't know of any binding precedent on this point.

2. Litigants usually have to indicate their full names, but minors, especially in California, are often allowed to litigate using initials or pseudonyms—especially when there are allegations of sexual impropriety involved. Here, the plaintiff is acknowledging that there was a sexual relationship when the parties were, at most, 15; a quick search for defendant H.'s full name, coupled with the name of the city she lives in, reveals a local newspaper article that describes her as having been age 12 in January 2016, which would have made her 13 or 14 at the time of the relationship (March to July 2017). And of course defendant allegedly accused plaintiff of having raped her.

It thus seems odd that the lawsuit was filed using the parties' full names. This is especially so because A.'s name is quite unusual, he appears to be an aspiring actor (with a few bit parts in some TV shows), and a Google search for the full name now shows the docket (on the UniCourt.com site) on the first results page. I am generally not a fan of pseudonymous litigation, but my tentative thought is that a case involving minors' sexual conduct (and possible misconduct) would have been a suitable case for that. Of course, query whether it is a sound decision at all for the plaintiff to sue, and turn an alleged slander within a group of home schoolers into something that could easily become a matter of public record even had the case been litigated pseudonymously.

In any event, this struck me as an interesting case (and a good fit with another libel-of-a-child case I blogged about last month), so I thought I'd pass it along.

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  1. Don’t be too surprised. Occam’s razor suggests it may be one of many below-average attorneys (out of the 200,000 or so in California). I don’t know who it is, so maybe not. But that seems like an egregious decision (against his own client’s interests) to use the full name. Was the decision to do so, and its consequences, fully explained to the minor and the guardian ad litem.? Plus, I don’t think you’re supposed to list the amount of punis in California complaints, and that Civil Code section seems inapplicable (as you note).

  2. Why not? Good will is reputational and proprietary, and gets a line on a balance sheet. An ‘injury to the property” could consist of pecuniary loss resulting from lost opportunities that follow an actionable harm to reputation. The use of the term “injury” suggests something beyond destruction of a physical object.

    1. One can argue that the statute should cover injury to reputation as much as injury to property. But the legal term “property” generally doesn’t cover reputation, and “injury to property” doesn’t cover libel. See, e.g., Paul v. Davis (1976) (“any harm or injury to that interest [in reputation], even where as here inflicted by an officer of the State, does not result in a deprivation of any ‘liberty’ or ‘property’ recognized by state or federal law”); Hamm v. Rhone-Poulenc Rorer Pharmaceuticals, Inc. (8th Cir. 1999) (“Damage to reputation is generally considered personal injury and thus is not an injury to ‘business or property’ within the meaning of [RICO].”). Some cases, to my knowledge almost exclusively in Louisiana, do say that a person’s “reputation is his property,” but these are a minority view, and I’ve seen no such cases in California.

      1. The language of the first sentence of 1714.1(a) would appear to cover injury to reputation though. Black’s Law Dictionary (2010) defines “injury” as: (1) The violation of another’s legal right, for which the law provides a remedy; a wrong or injustice, (2) Anything said or done in breach of a duty not to do it if harm results to another in person, character, or property. A similar definition of “injury” is used in the Restatement of Torts, Second Edition. The language that you quote from the complaint indicates that H., a minor, engaged in willful misconduct that injured A. (the conduct being the the rape claim and the injury being harm to A’s reputation). An act of willful misconduct, by a minor, which causes injury to another person, is covered by the first sentence of 1714.1(a).

        What the complaint leaves out, and which defendant will surely also point to, is that the remainder of 1714.1(a) limits the imputed liability of parents and guardians in cases involving injury to person to specifically enumerated types of medical expenses. In Cynthia M. v. Rodney E. (Cal. App. 4th Dist. March 22, 1991) the Court, reviewing the history of 1714.1, wrote:

        “The original version of section 1714.1, for example, was limited to property damage. The statute was amended 10 years later to make parents liable for personal injuries as well as property damage willfully caused by their children and to increase the maximum liability to $ 500. Subsequent amendments increased the maximum liability, added a section dealing with defacement of property, extended liability to guardians as well as parents, and restricted liability to parents and guardians who have custody and control of the minor.”

        The 1965 amendment that included the injury to person language also limited the liability in such cases to the enumerated areas of medical, dental, and hospital expenses. As I read it, the “injury to person” language covers a broad universe of torts, but the financial liability of the parent is greatly narrowed by the subsequent language that enumerates the types of expenses.

        Plaintiff’s complaint appears accurate then, and defendant’s answer to it stating 1714.1 only covers certain medical-related expenses will also be correct. Plaintiff’s attorney can then try to argue that A. will have to undergo medical treatment for the psychological trauma suffered, and that this will cost over $25,000.

        1. QuantumBoxCat: I think that’s indeed consistent with Carlin v. Harvard Westlake, which I quote: the statute covers (1) up to $45K of medical, dental, and hospital expenses (not reputational injury), and (2) up to $45K in property damage (not reputational injury). Either way, reputational injury — which is what this case is about — can’t be compensated, though indeed in principle one can imagine a claim (likely not this one) in which libel allegedly led to medical, dental, or hospital expenses.

          1. Professor….Might that be revisited? = Either way, reputational injury — which is what this case is about — can’t be compensated, though indeed in principle one can imagine a claim (likely not this one) in which libel allegedly led to medical, dental, or hospital expenses.

            The case you cite is from 2005. I don’t think social media had quite the impact then, than it does now. In these cases where false claims are made, and then perpetuated by the internet and social media….isn’t the defendant now permanently harmed? Anytime they apply for employment, this will come up. So my question to you: Will this be revisited, do you think? [meaning, the question of compensation for reputational harm]

            1. You’re looking forward, but there’s also the opportunity to go further back.

              The “traditional” remedy for reputational harm but not identified damages is to award nominal damages. So mom and kid are jointly liable for the $1.

  3. “The allegation of “rape” constitutes slander per se as it falsely accuses Plaintiff of committing a crime…”

    I wonder if this is still true, since nowadays some young people are taught that the term “rape” sometimes encompasses perfectly innocent behavior, like consensual sex after a few drinks, “cajoling” a person into consent, consensual sex with someone higher up in the professional food chain, etc.

      1. Only a few years ago, when the military rape crisis media hysteria was at its peak, I sat through a mandatory training, the gist of which was, that if you were drinking after hours and she/he was drunk, said person couldn’t consent and it was akin to rape. There was some grey areas admitted to when some sea lawyers in the audience started to ask some pointed questions, but they shut up when they realized it wasn’t going to reflect well on their marks if they kept at it.

      2. Also, check out Irina Manta’s posts, on this blog, about how lying to get someone into bed is rape rape, not just rape.

      3. There have been efforts to bring into being a “rape by fraud” category, which A) seems to fit within the legal definition of rape (if consent is not meaningful, then…) but B) not at all practical to apply to the real world.

    1. The ages of the litigants leads me to wonder whether California has a statutory rape statute. If so, what age is the cut-off.

      1. JimB: I looked into it — sex among under-18-year-olds is statutory rape, but only a misdemeanor if the parties are within three years of each other. And the statute of limitations for such misdemeanors is one year.

        1. So, there could be a California case where each person in such a past sexual relationship (both under age 18, and, say, both the same age) sues each other for statutory rape? I’m assuming that, so far, this is only a law school hypothetical, yes? Given the amount of sex that happens in high schools (and even earlier). . . maybe PI attorneys should be leaving their business cards in all the high school (and Jr. high school) classrooms.

          1. They could both be prosecuted for statutory rape, but I’m not sure how the tort law analysis would play out. For a fairly recent decision canvassing the cases on consent as a defense in underage sex tort cases generally, see Bjerke v. Johnson (Minn. Ct. App. 2007), but it doesn’t deal with the situation where both parties are underage. Would courts allow the lawsuits, but effectively set off the parties’ recoveries against each other? Would the jury be invited to decide which party was the more culpable? My quick search couldn’t find any cases dealing with that specific question.

            1. Would (potential) Plaintiff Two have to counter-sue in response to seeing the initial lawsuit, in order to have the two potential cases consolidated? Or could he/she let the first case proceed to judgment, and only later file the countersuit? Or does this–and all other similar questions–fall into the “Not sure how tort law plays out.” basket?

              1. I’m just winging at this point, but wouldn’t there often be a statute of limitations problem if one waits until the first case proceeds to judgment? Seems to me a cross-complaint would be called for (plus possibly an affirmative defense of consent, if the court is willing to entertain that).

                1. Can a minor give legal consent re sex? (I think the answer ought to be ‘yes,’ with a showing of sufficient maturity, but I’m not sure about the legal standard.) I thought that the reason you can charge a 22 year old woman who is sleeping with a 17 year old boy is because he is not permitted (in the eyes of the law) to give consent. So, regardless of the apparent consent he tried to give, it had no legal effect. Same if he had been the one pursuing the 22 year old: he instigated the sexual relationship, but since he was not legally capable of giving consent . . . .

                  1. The statutes are written the way they are, on purpose. Can you find a 15-year-old with sufficient maturity to give meaningful consent? (yeah.) But how does the defense prove it, and how does the prosecutor disprove it?
                    MUCH easier to prove that sex happened, and when the victim was born. So that’s all the statutes require.

                    Also, a thorough inspection of ability to give meaningful consent invites doing the same for people who AREN’T minors. This presents a potential challenge to every sexual encounter that ever happens. Yikes!

  4. A couple of points occurred to me. Since a key objective of the award of damages in a defamation case is vindication, it is in principle necessary that the plaintiff be named and the plaintiff’s attorney can hardly be criticised on that ground. The larger question was whether the action should have been brought at all, but given the potential long-term damage of such an allegation one can see an argument in favour.

    Second point: I do not think there was any rule at common law that made a parent liable for his child’s torts. It is still the case in England, so far as I am aware.

  5. Quote: “A. and H. [who are currently minors] dated for a few months, from approximately March 2017 thru July 2017. A. and H. had consensual sexual contact on two occasions.”

    Funny thing is, every time I try to use the world “consensual” in regard to minors, I am invariably told “minors can’t legally consent!” So technically doesn’t that make a rape allegation truthful? (although not just one, but both sides could make that claim of statutory rape against each other)

    1. That was my thought. (See my earlier comment, about 5 hours earlier.)

    2. Refer to a different area of law for guidance.
      The minors had apparent authority as agents for their own interests, which is being mislabeled as “consent”.

      Or, just accept that the English word “consent” covers some territory that the legal term “consent” doesn’t.

Please to post comments

Donald Trump

On Congressional Inquiries and Presidential Defiance

|

Over at The Atlantic, I have a new piece on the escalating tensions between the Trump White House and the Democratic House of Representatives. The House has been unusually aggressive in its pursuit of oversight of the executive branch, which has often veered into an unofficial and now more official impeachment inquiry. For its part, the White House has been unusually defiant of congressional investigations, from the president's early declaration that the administration would fight all subpoenas to the White House counsel's announcement of a policy of total noncooperation.

The piece revisits the constitutional rationale for a congressional investigative and oversight function and the challenges of performing that task in an environment of partisan polarization. Presidents have some responsibility to cooperate with congressional oversight when possible, though less of a duty to facilitate their own impeachment. Even so, presidents also have some legitimate reasons for obstructing congressional investigations, and the tools available to Congress to coax reluctant administrations to be more cooperative are ultimately more political than legal.

Here's a taste:

Pelosi's House seems to have lost much of its leverage over the Trump administration. The president seems to be assuming that he will inevitably be impeached and that there is no legislative policy agenda to be advanced, and so he has nothing more to lose by refusing to cooperate further with the House. He is now positioning himself for the Senate trial and the electoral campaign.

Read the whole thing here.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “and now more official impeachment inquiry.”

    Until they actually hold a vote on it, it’s not more official. 0=0.

    1. And yet the House is still pursuing impeachment, the inquiry continues daily, everybody (Right & Left) is discussing this impeachment and they’ll be a vote whether to impeach once the full evidence is in.

      Even setting aside the shaky constitutional basis for your comment, I don’t see its significance. What’s its value? Zero, maybe?

      1. “full evidence”

        The fact that Clinton lost was known in November, 2016. We al know that is the real evidence “justifying” impeachment.

        His high crime was beating her.

      2. The House is a legislative body. The way legislative bodies do things “formally” is by holding votes. No vote has been held yet.

        Ergo, it is not a formal proceeding.

        You might ask why Pelosi and Schiff are determined to do this informally. Apparently they’re trying to leverage an informal impeachment investigation to collect dirt on Trump, without requiring any of the Democrats elected from districts where Trump is popular to cast votes that might hurt them next year.

        1. Which “Democrats elected from districts where Trump is popular” have come out in opposition to an impeachment inquiry? Which of them has not come out vocally in support of an impeachment inquiry?

          Anyway, we’re going to get an impeachment inquiry. Pelosi will be forced to cave, and so we’ll have our vote.

          1. Representative Van Drew, NJ, for one.

            1. There’s actually 8 of them (the others are Brindisi, Cunningham, Golden, Horn, Kind, and Petrson). That gets you down to 227-228, a majority. And since he’s out publicly, how does a vote hurt him?

              The only people who are not on record yet are 14 Republicans. There are no Democrats who have not announced their position on an impeachment inquiry.

              1. If you already knew, why ask the question?

                There’s a difference between being “on the record” and an actual vote.

                1. So you’re voting on a lot of them lying to the public and their constituents and then changing their minds? I’d bet on them picking up votes, since a lot of the no/on the fence statements predated the President’s blanket refusal to respond to subpoenas.

                  1. “So you’re voting on a lot of them lying to the public and their constituents and then changing their minds? ”

                    They’re politicians. It’s practically in their job description.

                    1. So it’s equally plausible that all the no Republican votes will change their minds, too?

                    2. Some Democrats might decide not to go on record actually voting to impeach the President due to being elected out of districts that like Trump.

                      Essentially ALL Republicans will have that motive.

                      Sure, one or two might decide to vote in favor of it; Politicians do decide to retire occasionally.

                    3. @Brett,

                      There are Republicans holding districts that Clinton won, too.

                    4. No theory
                      Any Republican who votes for impeachment, especially in a swing district, might just as well file papers that day changing his party affiliation.

                    5. What’s weird about this is that you all are imagining a world where Democrats live in swing districts and can never buck party lines, but Republicans never operate that way. It’s just not true. The term RINO means something to some people, and there are RINOs. When Nixon was impeached, Republicans stood with him until they didn’t, but it wasn’t necessarily all at once. There is a continuum that has more than nothing to do with the changing tides of public opinion. Admittedly President Trump’s favorable/unfavorable has been uniquely stable. But Nixon’s net approval was at its third highest of his presidency (47.8) before plummeting to -7.6 in 5 months. Since the President is sitting at -12.2 today, there’s less room for him to fall, but Nixon found himself in the -30s eventually.

                      Anyway the question here is not voting for impeachment. It’s voting for an impeachment inquiry. There are currently 14 Republicans who aren’t on record yet, and several of them said things like “Let’s put it through the process and see what happens” process being “oversight process”. That was before the President told Congress to eat shit. Maybe the Representatives circle the wagons, but maybe not.

                    6. I think, from the conversations and stories about Pelosi trying to gauge support for an impeachment inquiry, that the Democrats aren’t quite 100% there.

                      I also think the rules and regulations in any impeachment inquiry will play a large role, and some Democrats won’t be on board with an inquiry that they don’t view as “fair” (IE, that doesn’t have protections for the minority party).

                      The converse situation (GOP members in Clinton districts), there are far fewer of.

                      To draw an analogy, going by public statements over the last 15 years, immigration reform should’ve happened by now. But the devil was in the details.

        2. That’s a silly distinction. Committees hold hearings all the time without voting; are those unofficial?

          If a committee is in session, it’s official. If the full house is in session, it’s official.

          You don’t need to go around inventing fresh excuses for your delusions. TDS strikes all sorts of people from across the full political spectrum.

        3. Actually they have rules which make things formal. Seems to me the Speaker’s power to refer any “matter” to one or more committees whose jurisdiction is “related” to it for investigation makes the inquiry “formal” inasmuch as the Speaker has done so. See Rule XII. There are also parliamentary rules, and there is one that requires House authorization to investigate a member. Jefferson’s Manual, Sec. 321. The absence of a similar one for impeachment seems to be pretty strong evidence that the Speaker’s referral is conclusive, and makes the impeachment investigation “formal” within the meaning of House rules and procedures.

          1. So oversight and impeachment inquiries are exactly the same?
            Or phrased differently. How can an outsider tell the difference?
            My thinking is, a refusal to respond from the White House, would have to go to a judge. The 1st question a judge would ask is How do I determine if this is oversight. (legislative purpose) or impeachment?

            1. My point is that it is an “impeachment inquiry” by reason of the referral by the Speaker, and she has been delegated that power by the House via the adoption of the rules. Same situation as when President can exercise emergency powers delegated by Congress. An outsider can tell the difference by the Speaker’s referral to the committees. The Speaker is not some random member–she has been delegated powers by the House. Remember too, that the impeachment power is not applicable only to the President. Would you have the same objection if it involved the impeachment of some other federal official? Are you suggesting that the Speaker could not refer the matter of judicial misconduct to the Judiciary Committee without a full House vote?

      3. We already know the outcome. It’s like a case before one of those Obama judges.

        Who cares what happens during the process, we already know the outcome.

        1. Pretty much. When you look up kangaroo court in the dictionary, you get “Anything conducted but Democrat Party politicians and judges.”

      4. Double secret impeachment.

        Pretty strange to have all the testimony and depositions locked down. You’d think if they had real case they’d want to publicize it.

        1. It’s weird — some might think bad faith — how people pretend not to understand the difference between an investigation and a trial.

          1. They aren’t pretending to not know the difference.

            They see anything, and anyone attempting to hold Trump accountable to the law or Constitution as invalid, and argue accordingly.

            You might as well be communicating with a box of rocks.

            1. We see the people trying to go after Trump conspicuously avoiding holding any sort of vote. You know who avoids a vote in the House?

              Somebody who expects to lose that vote.

              So the default assumption is that if the leadership are avoiding holding any votes while investigating Trump, it’s because they think they’re thwarting the will of the House majority, and don’t want to give that majority an opportunity to stop them.

              Of course, I could be proven wrong. The way that happens is if they hold a vote, and win.

              1. They don’t have to hold any vote to investigate whether articles of impeachment are warranted.

                They have to vote to send such to the Senate once the evidence is gathered.

                The default assumption from me, and other rational posters, is that people like you are morons.

                1. Except if they take the vote…Trump has SOME due process rights then.

                  Now? The Dems keep Republicans out of the “hearings”. Promise transcripts eventually. You know…the transparency thing.

                  1. No one is being kept out of hearings except for those not from any of the committees involved trying to crash the hearings.

                    Republicans get to ask half the questions, and given the hearings are taking like 8 hours, I don’t think they lack for chances to speak.

  2. The House oversight committee has requested copies of Trumps tax returns (2010-2018) as part of the house’s oversight duties.
    The CA for DC has ruled that the accounting firm must provide the returns. However, the statute (section 6103 IRC) limit congress ability to obtain his returns to only the ways and means committee and the senate finance committee with a further limitation that it must only be done for legislative purposes. It would seem the language of the statute does override the House’s oversight investigative powers.

    1. What is the relevance for pre-election returns in any event?

      1. “What is the relevance for pre-election returns in any event?”

        That is a valid point – The claimed need for the investigation of the tax returns was the payment to stormy daniels which was a 2016 [?] payment, so the search for 8 years of returns did not seem relevant.
        The opinion however did not seem to address the issue of relevancy in any meaningful manner – other than the oversight had very broad authority.
        The opnion also did not seem to address the statutory limitation under section 6103 as to whether 6103 overrode Congress’ general authority to investigate.

        1. “The opnion also did not seem to address the statutory limitation under section 6103 as to whether 6103 overrode Congress’ general authority to investigate.”

          Correct. It also didn’t address the applicability of the Soviet Constitution to this inquiry, or whether the subpoena complied with the 1663 British Navigation Acts.

        2. “The opnion also did not seem to address the statutory limitation under section 6103…”

          Did you find it curious that the DOJ, the Trump Plaintiffs, and the dissent also did not address this limitation, in that case?

    2. “However, the statute (section 6103 IRC) limit congress ability to obtain his returns to only the ways and means committee and the senate finance committee with a further limitation that it must only be done for legislative purposes.”

      26 USC 6103(f) has to do with requests to the Secretary of the Treasury. The House Ways and Means Committee already submitted a request to the Secretary, which was denied. The case you are citing (“CA for DC has ruled”) involved a subpoena to Mazars USA, LLP, an accounting firm. 26 USC 6103(f) has nothing to do with that request. Why, in your view, does it apply to that case at all?

      The House Oversight Committee’s oversight jurisdiction exists “without regard to” other committee’s jurisdictions. It also has a separate subpoena power, subject to the limitation that the documents or information sought are “consider[ed] necessary” by the Oversight Committee. I’m not aware of any other limitation on the subpoena in the rule.

      However, the stated legislative purpose is the 1978 Ethics in Government Act, and more specifically whether the President engaged in illegal conduct before and during his tenure, has undisclosed conflicts of interest, is complying with the Emoluments Clauses, and accurately reported his financials to the Office of Government Ethics, among other agencies.

      1. Seems like a scurrilous work-around to take the tax returns from your accountant because your own law prevents the treasury from giving it up.

        To hell with the spirit of the law, and to hell with the spirit of the 4th Amendment, preventing the king from filching at will through papers of opponents until they find something, anything, to hit him with.

        1. Current law does not prevent the treasury from giving it up. The treasury refused to give it up because it is headed by the person whose tax returns were requested.

          This has nothing to do with the 4th Amendment. The government has President Trump’s tax returns. Section 6103 involves an intergovernmental transfer of documents.

          1. The Treasury’s position was that current law prevented them from giving it up.

    3. the statute (section 6103 IRC) limit congress ability to obtain his returns to only the ways and means committee and the senate finance committee with a further limitation that it must only be done for legislative purposes.

      Here is paragraph (f)(1). Care to point out where it says that?

      Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives, the chairman of the Committee on Finance of the Senate, or the chairman of the Joint Committee on Taxation, the Secretary shall furnish such committee with any return or return information specified in such request, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure.

      Note that under paragraph (f)(3) other committees may be authorized by resolution to obtain returns, and that:

      Any resolution described in this paragraph shall specify the purpose for which the return or return information is to be furnished and that such information cannot reasonably be obtained from any other source.

      But this language does not appear in paragraph 1, quoted above, requiring the Secretary to provide returns on request to the three named committees.

  3. I disagree with Whittington, the White House was very cooperative with the Mueller Probe, doing everything but letting Trump himself be interviewed. They have not been “unusually defiant of congressional investigations” in the past.

    Standing up for executive privilege against the Kafka-trap “impeachment inquiry” that is occurring without a formal vote of the full House on the matter is not being “unusually defiant,” especially considering recent precedent leading to Holder being held in contempt of Congress for his stonewalling.

    1. Indeed. Trump was very cooperative with the Mueller probe.

      In this instance, Trump sees it as just more fishing and press-generation from the Democrats.

      1. Madness of leftist zealots

        https://nypost.com/2019/10/12/goodwin-madness-of-leftist-zealots/

        …singling out Trump for the turmoil engulfing the country is possible only if you disregard the No. 1 contributor: the refusal of Democrats and most of the media to accept the results of the 2016 election.

        That refusal has become, among many on the left, borderline psychotic. Nothing else compares to the damage it is doing to our ­nation’s fabric and global image. .

        Mueller was never fired, testified that no one tried to limit his probe or cut his resources — and still he couldn’t deliver the goods.

        In America, that means the case is closed. That should have been the end of it.

        The dirty tricks in 2016, the flames of treason fanned by Hillary Clinton and top members of the Obama administration, the wild media scoops and whispered accusations — all of it had been considered and found to have no merit. The Russia, Russia, Russia charge was false and it was time to move on.

        Instead, the left immediately began searching for another silver bullet. One way or another, they would bring down Donald Trump.

        Thus was born Ukraine, Ukraine, Ukraine.

        1. “Nothing else compares to the damage it is doing to our ­nation’s fabric and global image. .”

          Unless you count the refusal to accept the outcomes of the 2008 and 2012 elections, which were, of course, dealt with entirely rationally by R’s.

          1. Obama is an evil traitor with no conscience, but we didn’t try to illegally interfere with his presidency.

            1. Mitch McConnell agrees with you on the first part, but Merrick Garland disagrees with the second.

              1. Obama could have gotten Garland onto the court. His failure to exercise his Executive powers to do so were a political decision.

              2. They didn’t consent to his nomination, as they are Constitutionally entitled to.

          2. No one attempted to sabotage elected and re-elected President Obama, or claim that he was secretly elected by Russians and thus illegitimate.

            But if this is now the norm, then the next Democratic President can certainly be on the receiving end too.

            If elections don’t matter, then elections won’t matter. Be careful what you wish for.

            1. “No one attempted to sabotage elected and re-elected President
              Obama”

              Unless you count the Republicans who did so at every opportunity.

              “or claim that he was secretly elected by Russians and thus illegitimate”

              The claim was that Hawaii was part of Kenya, as I recall.

              1. No, the Republicans didn’t at every opportunity. That’s a flat out, bald faced lie.

                1. Here’s John Boehner, the likely speaker if Republicans take the House, offering his plans for Obama’s agenda: “We’re going to do everything — and I mean everything we can do — to kill it, stop it, slow it down, whatever we can.”

                  Senate Minority Leader Mitch McConnell summed up his plan to National Journal: “The single most important thing we want to achieve is for President Obama to be a one-term president.”

                  https://www.politico.com/story/2010/10/the-gops-no-compromise-pledge-044311

                  How soon they forget.

                  1. Well, yes, opposition parties typically oppose the agenda of the other party, that’s why they’re “opposition” parties. And it is always the aim of any given party that a President of the opposing party not be reelected.

                    But he wasn’t “sabotaged” in the sense Trump has been. He was just opposed.

            2. ” Be careful what you wish for.”

              You seem to have written my name on the wrong side of the ledger.

    2. Mad….That was my take as well. The premise was totally wrong.

      Look, impeachment is a political process. There really are no enumerated impeachment rules, other than what the Speaker decides are the rules. What would elevate this to a dangerous level is arbitrarily jailing uncooperative witnesses. That is a step too far, and congressmen should back away from this. Those are Banana Republic tactics.

      The Republic can survive a bad POTUS. God knows, we have had bad POTUS’ in our past. I am not so certain the Republic can survive a malign press, a bureaucracy that actively undermines a duly elected POTUS and his lawful attempts to implement perfectly legal policies, intelligence agencies and their leadership with their own agenda, and a Congress run amok.

      1. ” There really are no enumerated impeachment rules, other than what the Speaker decides are the rules.”

        Well, what the Speaker decides are the rules AND can get enough “aye” votes for, when the vote is eventually called.

  4. “the tools available to Congress to coax reluctant administrations to be more cooperative are ultimately more political than legal.”

    You’ll know its serious when the House votes to zero out the Secret Service’s White House detail travel budget. For extra fun, if they divert these funds, but ONLY these funds, to border wall construction…

    1. At which point Trump simply rehires his previous private security detail.

      Why not, “You’ll know it’s serious when the House starts holding votes.”?

      1. “At which point Trump simply rehires his previous private security detail.”

        Pay for something himself????!? I don’t think so.

        1. Well he may just decide to stop donating his salary and using that. But then maybe the House could cut off the President’s salary? That would be pretty significant.

          1. The House can’t do squat without the cooperation of the Senate, except impeach him, and that requires the Senate to convict.

            1. “The House can’t do squat without the cooperation of the Senate”

              Unless, of course, spending by the government has to be approved by both houses of Congress, and not just in the Senate.

    2. Those are fun hypotheticals JP, and I see them in the lefty-verse on Twitter. Things like the House locking people up with the Marshall’s help for those who refuse to testify, etc. I find it hard to believe that the House will have the guts to do things like that, when they don’t even have the guts to make a full House vote for impeachment.

      1. “House locking people up with the Marshall’s help for those who refuse to testify”

        I’d like to see that.

        I thought the fantasy was the Sargent at Arms doing it. Are they really talking about using the US Marshall’s office? Why would an executive branch appointee arrest executive branch members at half of the legislature’s request?

      2. I think they’re either hoping that an informal inquiry can be leveraged to find dirt that would make a formal impeachment politically viable, or hoping to provoke Trump into some reaction that could be similarly leveraged.

        1. Well, there’s good precedent for that. Like starting an investigation into Whitewater, and ending with semen stains on a blue dress.

          1. People forget that something like 14 convictions came out of Whitewater directly related the matter that prompted the investigation – including the sitting governor of Arkansas(!) and the Clinton’s direct business partners(:O). Not in perjury traps but for fraud and embezzlement connected to their business dealings. It was messy business, and yes, completely overshadowed by the unfortunate events with Monica. But the Clinton’s weren’t any cleaner than the dress with regards to Whitewater itself, just not enough to get over the hurdle of taking down a sitting president. Had he been otherwise, both he and Hillary would surely have been indicted. The reality is that the law does treat folks differently based on their position of power. Nothing’s changed in that regard even with Trump.

            1. “the Clinton’s weren’t any cleaner than the dress with regards to Whitewater itself”

              Which explains why a multimillion-dollar, multi-year investigation came up with exactly 0 indictments of the Clintons. It’s a shame they didn’t hire YOU to run the investigation, since you apparently know where all the bodies are buried.

              ” just not enough to get over the hurdle of taking down a sitting president. Had he been otherwise, both he and Hillary would surely have been indicted.”

              When was Hillary President?

              Considering that neither one is President, what kept them from being “surely indicted” in 2001? Bill wasn’t President, and Hill wasn’t a Senator.

        2. I think the leadership just wants to ride out the rest of the term, and beat him at the ballot. More and more of the D-in-the-street is losing patience, which is showing up in some showboat Reps talking about “hey, let’s do this!” because it plays with their base. But if they wanted to go impeaching the Twit-in-Chief, it would have been within 90 days of the House changing hands. It would have been followed by a party-line vote to acquit in the Senate, and there’d be nothing more hanging over Trump’s head keeping him looking over his shoulder every time he thinks about doing something shady.

      3. ” they don’t even have the guts to make a full House vote for impeachment.

        The D leadership prefers ineffective President Trump to a hypothetical President Pence, who might be able to actually follow through on things.

    3. You’ll know its serious when the House votes to zero out the Secret Service’s White House detail travel budget.

      That’ll convince the American people it’s not about getting a political enemy. More! More!

      1. “That’ll convince the American people it’s not about getting a political enemy.”

        Depends on whether having to stay in Washington makes the President actually get any useful work done, I guess. I wouldn’t bet on it, myself. Mr. Trump doesn’t have any experience working for someone else, and it shows.

  5. The president seems to be assuming that he will inevitably be impeached and that there is no legislative policy agenda to be advanced, and so he has nothing more to lose by refusing to cooperate further with the House.

    Whittington flies pretty wide of the mark. Whittington apparently ignores that Trump has a lot more to lose. For instance, he could lose a trial in the Senate, instead of collecting the near-certain exoneration he would be awarded if tried before further evidence can be collected.

    Thus, Trump’s non-cooperation is, without any reasonable contradiction possible, an attempt to suppress discovery of more evidence against him. And also an attempt to deny the House its prerogative to build a political case against Trump which would support impeachment and removal from office.

    Whittington also goes light on the powers available to the House. Pursuant to its impeachment inquiry, the House could monitor disbursements from the treasury, with an eye to finding any for purposes which had not been expressly appropriated. Government officers who authorized such expenditures could be subpoenaed, and held in contempt for those authorizations. They could be imprisoned by the House, without recourse to the justice system. They could be fined. Their paychecks could be garnished and their bank accounts frozen. Liens could be put on their real estate. All of that could happen alike to every Trump administration official who defied a subpoena, failed to produce documents, or lied to investigators.

    All of that comes before considering the slower-acting advantages the power of the purse puts at the disposal of the House. If the House chose to do it, it could by inaction de-fund every part of the administration which failed to cooperate. Start with the Office of Legal Council, and its letter of defiance. De-fund the “investigate the investigators,” travesty in the administration—but to reassure critics, move the money instead to the Senate, to continue the investigation there.

    Trump scoffs at the House, and nothing happens. It is because nothing happens that the House looks powerless. The House could teach Trump to stop scoffing, and fear its power. It has only to act.

    1. If the full House won’t vote on impeachment, what makes you think they will strip salaries, and other more hardball tactics? Also, I think the Senate has a say in House attempts to do things like that, like freeze bank accounts, and I’m sure they would end in McConnell’s so called “graveyard” of other House bills.

      1. mad_kalak, the Senate gets no more say than Granny Smith, the apple. None. The House has “Sole Power.”

        As for McConnell and his “graveyard,” he has been bragging about it in campaign ads. Boasting that he stands between Trump and removal from office, and that Kentuckians can count on him to stop it. I’m looking forward to that ad getting a lot of airtime from Democrats in Senate campaigns come next fall.

        1. Stephen,

          Mad’s comment about the Senate was clearly in reference to your proposed insane plan to “Freeze Bank accounts”. IE, you would need both Houses of Congress to have a hope of this vastly illegal plan.

          But let’s break down this insane statement of yours.

          “the House could monitor disbursements from the treasury, with an eye to finding any for purposes which had not been expressly appropriated.”

          –OK. Although this is always a grey area, especially with some points in the law.

          “Government officers who authorized such expenditures could be subpoenaed, and held in contempt for those authorizations.”

          This is very, very grey. I mean you would need absolute, 100% evidence that it was actually illegal

          “They could be imprisoned by the House, without recourse to the justice system.”

          OK, this is flat out illegal, and just wrong. It breaks so many laws, and so many areas of the Constitution that it boggles the mind. No law enforcement official or judge would ever uphold such action.

          1. “without recourse to the justice system”

            cough habeas corpus cough

            1. Back when W was protecting us from terrorists, they tried shuffling prisoners from military base to military base, with enough frequency that the mandamus writs always arrived after the prisoner was somewhere else. They gave up on that after a few rounds, though.

              I’m not sure a habeus writ has any effect on Congress, if they don’t want it to. What if they get the paperwork, and just say “nah!”?

          2. Armchair, if you really are a lawyer, you are thinking like a lawyer, and positing that lawyers get to decide everything, all the time. You are doing that while staring straight at a part of the Constitution which contradicts you.

            What do you suppose, “sole power,” means? Unless it means no one else gets to interfere, it is meaningless. “No one else,” includes your, “law enforcement official or judge.” They get no legitimate say in impeachments.

            Older Americans today suffer from the incomplete preparation for political insight which was the usual fare in their 8th grade civics classes. In those, the day-to-day functions of government were both well-taught, and in some cases well-remembered. What was left out of 8th grade civics was any mention of the over-arching part of political theory uppermost in mind among the founders—the theory of sovereignty. It infuses both the Constitution and the Declaration of Independence—where it would be conspicuous to everyone, if almost everyone had not been taught as children to ignore it, and concentrate instead only on the decrees in the Constitution delegating and limiting the powers of government. That is what you are doing here.

            So please, consider some of the other sole powers the sovereign decrees in its Constitution. How about the President’s pardon power? Can a law enforcement official or judge intervene in that? How about the power of Congress to declare war. What role is there in that for a law enforcement official or judge? On its face, in the Constitution, the impeachment power is no different. If you think otherwise, show why.

            1. How’s this….

              “Impeachment” does not mean imprisoning people without recourse to the judicial system. Which is what you’ve have proposed. Which is illegal as all hell. That is the hallmark of dictatorship.

              “Imprisoning people without recourse to the judicial system….” It violates the 5th Amendment. The 6th and/or 7th amendment. The 9th amendment. Not to mention the Separation of Powers, if you’re having the House majority due it. And probably some more areas I’ve missed.

              But go on…keep defending this somehow.

              1. Stephen Lathrop is anti-American.

                See his comment aboyt not wanting to narrowly define foreign participation in elections.

                1. Michael, I am curious, I cannot remember addressing that issue. But maybe I did, and forgot it. Or maybe you are mistakenly describing some comment I made on another issue. Care to quote it back to me?

                  1. You wrote that you supported a law that prohibited foreigners from participating in elections.

                    I asked how participation could be construed narrowly.

                    You asked why participation needs to be narrowly construed.

                    1. Not much of a citation to go on. But given what you remember, how is that anti-American?

              2. Armchair, in short, you have nothing. I assert impeachment is an exercise of sovereign power, and ask you to refute that if you can.

                Instead, you assert 5 ways the Constitution constrains sovereign power, which is an absurdity. The Constitution can never constrain the sovereign. The Constitution is the sovereign’s creation. The sovereign can make the government, modify the government, ignore the government, abolish the government, or replace the government. The government gets no say in any of that. That is what sovereign power means.

                You would have done better to assert that because the House is a division of government, it cannot in fact be exercising sovereign power, but only limited power. Then we could have had a discussion worth having. On my side, I would show you that in addition to contradicting the plain text of the Constitution, your premise precludes any exercise of the impeachment power at all. That is what you want, of course. And it happens to be also what President Trump is attempting right now to demonstrate. In so doing, he is edging very close to an outright competition with the People themselves, to seize sovereignty from them. That is what you are backing.

                1. For the love of….

                  “Instead, you assert 5 ways the Constitution constrains sovereign power, which is an absurdity. The Constitution can never constrain the sovereign”

                  The Constitution is literally designed to restrain and constrain sovereign power. It is the purpose of having a Constitution, and especially the Bill of Rights.

                  Someone else take this….

                2. OK, we’ll try this again. From basics.

                  Stephen, President Trump is President of the United States and head of the executive branch.

                  Why can’t he just take every Democrat in Congress and throw them in prison, then do what he wants. What prevents him from doing this, from a legal perspective.

                  1. The Constitution is literally designed to restrain and constrain sovereign power. It is the purpose of having a Constitution, and especially the Bill of Rights.

                    Well, Armchair, there’s the problem, right there. You are conflating government and sovereign, with everything in a hopeless muddle. Think of it this way (because this is the way it is): A constitution is a decree from a sovereign. That decree creates a government, which is what a constitution constitutes. Thus, the creation of a government is said to be an exercise of the sovereign’s constitutive power—and the ability to exercise constitutive power is seen as the defining characteristic of sovereignty.

                    When a sovereign exercises constitutive power, it creates a government according to the sovereign’s pleasure. To act at pleasure is to act without constraint of any kind. Rights under government (leaving aside other theories of rights) are decreed to the subjects at the pleasure of the sovereign.

                    The sovereign acts continuously to keep the government in prescribed bounds, and to vindicate the rights of subjects.

                    With that as background, we can turn to your example. The Constitution defines the offenses Trump would commit if he did what you say. The sovereign power of the People would arm them to vindicate the Constitution. President Trump could not do as you suggest, because a power greater than his own—sovereign power—would compel him to do otherwise.

                    More generally, you misunderstand the founders’ view of sovereignty. Or perhaps you understand it a bit, but not the implications.

                    The founders never meant “sovereignty” to mean the power of government. The founders believed, as some said explicitly, that no national government was possible without having over it at all times a sovereign of unlimited power to constrain the government within whatever bounds the sovereign prescribed.

                    Thus, the otherwise inexplicable miracle of powerful governments which respect the rights of even the least among the nation’s citizens. If government oppresses them, do those ordinary people enjoy power of their own sufficient to enforce rights against the power of goernment? Of course not. So where does the power come from to accomplish that? It can only come from one source, a sovereign with unlimited power, to overawe the government, and compel enforcement of the rights the sovereign has decreed for its subjects.

                    I suggest if you keep those basics in mind, my comments will cease to strike you as outlandish. The premise we must all be working from now, is that President Trump, by refusing all cooperation with the House on impeachment, is not just scoffing at Democrats, but actually challenging America’s sovereign, the People, to a contest after which only the winner will exercise sovereignty. It is a contest in which the People’s sovereignty will end, or Trump will be defeated.

                    That is a constitutional crisis of a severity not seen since the Civil War. You should not wonder if it becomes a contest of brute force on behalf of the People, just as Trump has envisioned it as a contest of force on his own behalf.

                    The difference between the adversaries is that at least for now, at the outset, the People come armed with constitutive power, and the ability which they always have to act at pleasure in defense of their sovereignty. And they are not just armed, but forearmed, because they wield the “sole power” of impeachment, a constitutive power which they delegated in the Constitution to the House, to meet a crisis exactly such as this one. Make no mistake, that is sovereign power the House can wield, if it will, not constrained power of the usual sort with which the House operates. Those are the implications of that “sole power” declaration from the still-sovereign People, in their Constitution, which the government is not the least empowered to constrain.

                    1. OK, question for the forum at large, everyone, liberals, libertarians and conservatives, everyone besides Stephen.

                      Did that make sense to anyone?

                      James? Brett? Bob? NToJ? Sarcastro? Anyone? Did that make any sense at all?

                    2. “Did that make any sense at all?”

                      Nope 🙂

                      It is remarkably similar to the ‘sovereign citizen’ stuff; different arguments, but the same too clever by half logic.

                    3. Absaroka, make sense of this for me, please:

                      “The Constitution is literally designed to restrain and constrain sovereign power. It is the purpose of having a Constitution, and especially the Bill of Rights.”

                      Absaroka, answer these questions:

                      1. What in the Constitution informs us that the judiciary is excluded from interfering with the pardon power, but empowered to interfere with the impeachment power?

                      2. If sovereign power is not what compels government to respect rights and honor limitations, what power does compel government to respect rights and honor limitations?

                      3. In the question above, how did limitations on government get there in the first place—from God or some other source; what source, and by what authority?

                      4. If separation of powers constrains impeachment and removal, how can separation of powers remain sacrosanct, while exercise of impeachment and removal boots a president out of office?

                      More generally, my comments on the role of sovereignty in American government are the exact opposite of sovereign citizen crap—as even you seem to acknowledge, while dragging that in because you know it is crap, and you would like to smear around a little crap.

                      Nor did I just make up any of it. Everything I wrote above can be found in the Declaration of Independence, the Constitution, or the historical record—particularly, with regard to the U.S., in the writings of founders, Jefferson, Madison, and James Wilson, and in the record of events and writings preceding and during the American Revolution. Back of that, I am indebted to Edmund Morgan’s great history, Inventing the People: The Rise of Popular Sovereignty in England and America. Behind Morgan and the English history lies Hobbes’ Leviathan. Insightful commentary on these and related issues, and particularly on Hobbes, can be had from reading the works of the great English historian and political philosopher, Michael Oakeshott.

                      I do not for a moment suggest that there are no points of legitimate controversy in my own interpretation of this impeachment contest. Unsurprisingly, libertarian-oriented objections have touched on none of them.

                      Libertarian critique of American government and current events always suffers from the general inattention libertarians give to history, and to any political theory which is not their own. Compared to the entire historical record, and centuries of work in political philosophy, libertarian theory is thin. Compared even to just Federalist 10, libertarian theory is thin. Compared even to a better-class high school history curriculum, libertarian theory is thin.

                      So there you are, libertarians, confronted by centuries-old, bog-standard political theory, and utterly befuddled. Show me I am wrong. Give me some cogent answers to the questions above. There are some available. Do you know them?

                    4. “The premise we must all be working from now, is that President Trump, by refusing all cooperation with the House on impeachment,”

                      But he hasn’t. Explicitly, he’s said, “If you want cooperation, hold a vote, and open a formal investigation.”

                      That’s not refusing all cooperation, it’s stating his conditions for cooperating, and they’re perfectly reasonable conditions.

                    5. Armchair:

                      The People are the sovereign that created the Constitution, which then delegates, but only partially, and with explicit limits, the exercise of that sovereign power. I guess that’s what he’s getting at, before he starts going off the rails.

                      Where he goes off the rails is by treating that “sole power” to impeach as somehow obviating the “only partially, and with explicit limits” bit. and allowing the House to directly exercise that delegated sovereignty without any limits.

                      Where all it actually means is that the Senate can’t impeach.

                    6. Brett,

                      Yeah, I get the fact that Sovereign power is in the hands of the People in an American democracy (as opposed to the hands of the king in the monarchies of Europe at the time tit was written).
                      And that power is delegated to the Representatives, Senators, Judges and President for governance, under strict conditions, with strict limitations built in (IE the “Constitution”). Specifically built in so the people the power was delegated to couldn’t abuse it.

                      Lathrop’s writing off of all those limitations…and wordplay…it was off the wall.

                    7. The difference between the adversaries is that at least for now, at the outset, the People come armed with constitutive power, and the ability which they always have to act at pleasure in defense of their sovereignty. And they are not just armed, but forearmed, because they wield the “sole power” of impeachment, a constitutive power which they delegated in the Constitution to the House, to meet a crisis exactly such as this one. Make no mistake, that is sovereign power the House can wield, if it will, not constrained power of the usual sort with which the House operates.

                      The power of impeachment does not include the power to freeze bank accounts, nor the power to imprison people without recourse to the judicial system.

                  2. “Why can’t he just take every Democrat in Congress and throw them in prison, then do what he wants. What prevents him from doing this, from a legal perspective.”

                    This is two entirely different questions.
                    The answer to the first is that he doesn’t have the unconditional support of all the members of the government. There would be substantial resistance from below if such an attempt were made. The answer to the second is that Congress has legislative immunity. Which means nothing at all without the first.

              3. It’s vomitously sickening people are running with the idea “impeachment” means can investigate anything, root through any papers, at will, and now jail people at whim for disobedience.

                Get out of this country, dictators. If it walks like a duck, and quacks like a duck, you’re a dictator.

                1. It is a shame to have to tell you this, Krayt, but dictatorial power and legitimate political power come from the same source, which is pure force. The trick in distinguishing those powers is to be found only in what is done with them after getting them from the source. Too bad it can’t be nicer, but it isn’t.

                2. You think the real dictator is the Congressional investigations?

                  Elected officials following procedures laid out by their votes and tradition with powers ratified by the judiciary is not a dictatorship.

                  Calling everything you don’t like a disgusting national outrage is right out of the dictatorship playbook however.

                  1. Here is what Stephen Lathrop claimed that the House can do.

                    Pursuant to its impeachment inquiry, the House could monitor disbursements from the treasury, with an eye to finding any for purposes which had not been expressly appropriated. Government officers who authorized such expenditures could be subpoenaed, and held in contempt for those authorizations. They could be imprisoned by the House, without recourse to the justice system. They could be fined. Their paychecks could be garnished and their bank accounts frozen. Liens could be put on their real estate. All of that could happen alike to every Trump administration official who defied a subpoena, failed to produce documents, or lied to investigators.

                    1. And he is wrong, because, just as Trump lacks the unconditional support of the government, so does Pelosi. Attempting to freeze bank accounts and imprison people would be rejected by a substantial portion of the staff called upon to carry out these tasks.

                      Now, on the other hand, what the Trumpeteers and Resistance alike both forget is that there will be a time when Mr. Trump is not President, and does not direct the Executive offices of the nation. At such a time, subpeonas may issue (from Executive offices), prosecutions for failure to produce documents, or lying to investigators may follow.
                      There is a history of people just taking over the reins of power NOT grinding down on the people who just put the reins of power down. They do this because they know that there will be a time when they will be former officers of the United States, as well. Nixon would have been a strong candidate to see this policy end, but Ford thought it better to continue it, even though doing so angered a substantial part of the American public, including some of his own party. I strongly suspect that Mr. Trump can expect investigations into his business dealings to occur on a heightened frequency as soon as President Next takes the oath of office, and investigation of his actions as President to be extensive, if he is still alive the next time a Democrat takes over the office. Whether or not anyone will still care is an open question.

              4. ““Imprisoning people without recourse to the judicial system….” It violates the 5th Amendment.”

                No, it doesn’t. Point to where “recourse to the judicial system” is in the text of the 5th amendment.

                You have a better case with the sixth… he gets a “speedy” trial, with an impartial jury. But people can be held before trial.

                The Seventh is completely immaterial.

                The Ninth does not appear to contain anything relevant, either. Perhaps you’d like to cite something in conjunction with the Ninth, establishing your point?

                (This is an interesting thought experiment.)

            2. Prof Lathrop…I think your premise is wrong. Here is why.

              What do you suppose, “sole power,” means? Unless it means no one else gets to interfere, it is meaningless. “No one else,” includes your, “law enforcement official or judge.” They get no legitimate say in impeachments.

              Were this the case, then why is the Chief Justice the presiding officer in a Senate trial? He can, and has, made legal rulings in past impeachment proceedings.

              Personally, I think the the vote should be called. Immediately.

              Your other points about just jailing uncooperative witnesses, garnishing paychecks, putting liens on real estate are just surreal. You are a law professor, are you not?

              1. Your other points about just jailing uncooperative witnesses, garnishing paychecks, putting liens on real estate are just surreal. You are a law professor, are you not?

                Probably a law professor of Soviet law or Nazi law.

              2. “Were this the case, then why is the Chief Justice the presiding officer in a Senate trial?”

                The House has the sole power of impeachment, not the sole power of deciding the rules of the subsequent trial that doesn’t even involve them.

    2. “They could be fined. Their paychecks could be garnished and their bank accounts frozen. Liens could be put on their real estate. All of that could happen alike to every Trump administration official who defied a subpoena, failed to produce documents, or lied to investigators.”

      You are increasingly insane.

      1. Now you see why I support a military coup led by someone like Pinochet who will crush these people.

    3. As a theoretical matter, yes, Trump could lose in the Senate.

      As a practical matter, if they don’t have a case that’s good enough to even risk holding a vote in the House, they’re not going to convict in the Senate. Particularly since it never even reaches the Senate without a vote in the house.

      1. Victor Davis Hanson has a very cogent essay out today that the goal, 13 months before an election, isn’t necessarily to remove Trump. They know that is nigh on impossible, but their goal is to depress his poll numbers. Imagine if this mess did end up in the Senate, and the Dems were able to peel off Susan Collins and Romney and Sasse, and they had 51 to impeach. Not enough to convict, sure, but we’d hear about “majority vote” ad nauseam like we did the the popular vote. It also would look pretty crappy, regardless if it wasn’t enough to convict.

        1. Well, sure. You can view the last three years as nothing but a series of experiments in depressing his polling numbers; What does it take, how long before the rebound?

          With the aim of getting it down to a science in time for hitting him one last time a couple days before the election, with some BS thing that will fall apart in a few days, but push his numbers down just enough that he loses.

          1. Those calculating Democrats! They planted Joe Biden in the race knowing that the President would be incapable of restraining himself on a phone call with the incoming Ukrainian leader. They also convinced the President that the DNC servers were in Ukraine all along, just so he’d be dumb enough to ask about it in exchange for military aid that they had cleverly authorized just to entrap our leader. His twitter account is just a deep state parody.

          2. Benghazi!!!! Goose, gander. Heat. Kitchen. No? A bit late to object to partisan hearings and attacks. As a longtime supporter of divided government, it seems to me that the whole point of the 2-party system (not to mention separation of powers) is to keep the other side honest, which is a ginormous job with this administration.
            In short, opposition ready to pounce on any misdeed is a feature, not a bug. And, as far as I can tell, nothing to date has “fallen apart” as B.S. “in a few days.” Remind me.

            1. As a libertarian, divided government ground to a standstill is a good thing, if for no other reason than it gives business some confidence in stability of laws, needed for planning big investments that take years to come to fruition.

              By that metric, the Trump presidency, largely fought to a standstill by the Democrats, is a wild success.

              1. Only if you don’t count tariff, trade and sanction uncertainty, regulatory uncertainty and budget diversions.

              2. Business isn’t a conglomerate entity (yet). What’s best for business is an occasional shift that hammers the big and static businesses but allows new opportunities for nimble and agile replacements. IBM ruled the first 8 years of the PC industry, then Microsoft had a turn, and then Intel. The PC industry has had the most rapid advancement. The original PC ran at 4.77 MHz, supported up to 1 megabyte of memory, and had a hard disk capacity of 0 bytes. What other industry offers literally thousands of times the performance of products available 40 years ago?

                The Trump Presidency is brought to a standstill largely by the fact that Trump runs it like one of his businesses.

          3. Brett….This is a worrisome recent (in the last two decades) development – the anonymously sourced story, proven to be false [although that happens post-election], coming out no later than the Thursday before the election – and reported simultaneously in several press outlets. The amazing coincidence, and it is truly amazing, is that it seems to happen to Team R [Dan Rather – Bush, The Dossier – Trump] every election. These demonstrably false stories are designed to swing the election.

            It is one thing to report the news aggressively. I am good with that. It is quite another to print false stories with the intent of swinging an election. To me, that crosses the line.

            This is what will do in impeachment; people will see it for what it is. And the ultimate check on impeachment is the ballot box. Personally, I think the electorate will get pissed off with this ongoing Political Chinese Water Torture [the impeachment effort] and express their displeasure at the Ballot Box. People put up with bullshit for just so long and then get pissed off. We are just about at that point. The Progtards will be pissed they didn’t remove POTUS Trump from office, tar & feather him, and boil his supporters in oil. People who support POTUS Trump probably have a siege mentality by now, and they will show up to vote.

            This election is going to be an unholy mess. Hopefully the people will actually get to decide the question.

            1. “This is a worrisome recent (in the last two decades) development”

              It’s not that recent. A hundred years ago, there was “The Protocols of the Elders of Zion”. The peak was around that time… every faction in every city had their own newspaper to push the narrative preferred by each faction.

              ” it seems to happen to Team R [Dan Rather – Bush, The Dossier – Trump] every election.”

              If it ONLY happened to Team R, you’d have a point. But it doesn’t. You might recall a certain kerfuffle over the birth certificate of one B. Obama, or claims that Hillary Clinton was part of a pedophile ring that met in the basement of a pizza restaurant.

        2. mad_kalak, it goes far beyond what you say. With an actual majority in the Senate for a real trial, the ability to dictate the rules would pass to the Democrats. After that, every item on a bill of impeachment could be examined in full, in public. McConnell could block nothing.

          The Russia conspiracy counts could come back full strength, with new evidence putting Trump in jeopardy of removal, and his cronies in jeopardy of prison. With new evidence already showing money laundered from Russia going to the campaigns of Trump and at least the Governor of Florida, the obstruction counts would be revived in force.

          Seeing all that, the barrier wall of Trump enablers in his administration would crumble. Available evidence would overflow investigators’ ability to make use of it all. The Senate could subpoena Trump to testify, as it did Clinton. Clinton showed up. Trump would not dare.

          After such a dramatic spectacle of incrimination, with all of it on tape ready for campaign ad deployment, who would suppose Trump would not be removed? Only someone who continued to believe all that evidence would actually exonerate Trump. Even now, I doubt there are 10 Republicans in the Senate who think that. It is unlikely there would ever be a final vote. As with Nixon, Senate Republicans would take the case to Trump, and he would resign.

          So for now, Republicans’ certainty of keeping Trump in office is already balanced on the thinnest of fulcrums. It all depends on preventing the defection of probably fewer than 5 Senators—and not on any initial defection to favor removal, but only to favor a full trial. Trump’s presidency would not survive a full trial in the Senate. Given the likelihood of a few Republican Senators going over to vote with Democrats for a real trial, I suggest the probability of Trump completing his term has already sunk below 50%.

          1. “With an actual majority in the Senate for a real trial, the ability to dictate the rules would pass to the Democrats. After that, every item on a bill of impeachment could be examined in full, in public. McConnell could block nothing.”

            On the other hand, if Trump wins re-election in 2020 in spite of the never ending impeachment inquiries in the House, I would sat the odds favor Republicans holding the Senate.

            By the time the Democrats have a Senate majority impeachment will be a moot issue.

            1. I am not so certain about Team R retaining the Senate in 2020. They are defending an awful lot of seats. And Team R was absolutely incompetent in 2018 when Team D was defending over 20 Senate seats, picking up exactly 2 seats. What a whiff.

              1. I’m not so sure the Republican leadership WANT to retain control of the Senate. Being in the majority carries extra responsibilities, and results in your voters asking why you aren’t accomplishing things. The voters may even figure out that your campaign promises were mostly lies.

                In the minority you get less graft, but there’s a lot less work, too, and you’re never lacking for a plausible excuse for failing to accomplish what you claimed to want to do.

                1. Except you need the Senate to confirm judges.

                  1. You only need 41 Senators to NOT confirm judges.

          2. A lot of “possibly” and “if/thens” without an good comparison in your scenario Lathrop. It reads like a pre-game analysis for an NFL game.

            1. GOP senators want to stay senators. Voting to convict would trigger brutal primary challenges that would threaten their re-election even if they survived the primary.

              Does no one remember the “Tea Party” senate challenges of 2010-2012? The 2020-2022 ones would be far, far worse.

              He’s delusional, no sense in debating him.

            2. mad_kalak, which is why the smart money bets the Patriots. In the great football game of politics, if you want a similar bet, pick the sovereign People over Donald Trump. That is like betting the Patriots. Against the Jets. At Gillette Stadium.

              Do it that way, and you may lose anyway. But not often.

      2. Brett, do you actually believe House leaders are not holding a vote because they suppose they could not win it? Really?

      3. I do admire how you have managed to convince yourself that, despite polls showing either a plurality or majority of Americans support impeachment and removal, that House Democrats are somehow _afraid_ to hold a vote. Let me assure you that they are not.

      4. “As a practical matter, if they don’t have a case that’s good enough to even risk holding a vote in the House, they’re not going to convict in the Senate.”

        A successful impeachment is better for R’s than it is for D’s. The D’s know this. From the D perspective, Trump is doing a great job for the D’s right where he is…

    4. Sorry, are you proposing that Congress “defund” an investigation into Russian corruption, because they don’t like the politics? And long standing legal offices within the White House? Because it doesn’t like the politics? Are you proposing the as a unilateral single party, the House alone, as a bare majority, they do this?

      That’s insane.

      1. Armchair, don’t like the power of the purse? That does not make it any less powerful. By the way, you will find no shortage of sources in the historical record to show founders discussing use of the power of the purse to coerce from the executive just about any outcome at all. One dictum: if the President will not do what the Congress requires, he will find that he has money to do little else.

        More generally, from you and others, I get objections to forceful action by the House. The authority and logic against my suggestions, in their entirety, have been, “That’s insane.” Not persuasive, even after repetition.

        But by implication, more sophisticated reasoning can be discerned. It goes like this: Forceful action by the House could enable impeachment. There must be some way to stop impeachment, or checks and balances, or separation of powers, or something, would be infringed. Hence, forceful action by the House is right out.

        Have I got it right? If so, let’s test alternative reasoning. Start with the premise that the founders intended impeachment to be possible, useful, and a principal constraint on executive abuse. With that premise in mind, say what you suppose the founders would do. Would they hedge impeachment around with restrictions, to make it fail? Or would they authorize powers necessary and proper to make it succeed? As a general model for your reasoning, I call your attention to Marshall’s dictum about the Necessary and Proper clause, that it is an expansion of the powers of Congress, not a restriction on them.

        So, the Necessary and Proper clause, is it insane? Spoiler: I expect you to argue it is at least bad, and ought to be struck down, or that Marshall got it wrong, or that it is inapplicable to impeachments, or something. Am I right?

      2. “Are you proposing the as a unilateral single party, the House alone, as a bare majority, they do this?”

        CAN they do this? Sure. They just don’t pass any spending bills that authorize spending money they object to.
        (and amend any Senate bills that happen to do so before sending them back into conference.)
        SHOULD they do this? that’s a different question

    5. The Democrats in the FBI and DOJ have been spying on Trump for years and haven’t found anything.

      He’s as clean as a whistle. That’s why the Democrats have to keep lying about what Trump says and does.

      1. Take your partisan bullshit and spew it somewhere else.

        Trump is under multiple investigations for multiple reasons, and once he’s no longer President, he WILL be prosecuted.

        Your delusions don’t matter.

        1. LOL. The Self Awareness Award goes to Jason Cavanaugh!

        2. That’s right, once he’s no longer President, he WILL be prosecuted, even if they don’t have probable cause on anything.

          Just to punish him for daring to win that election.

          Democrats are leading our country to a very dark and ugly place.

          1. Your the one talking about Camp of Saints being prophetic.

            The right are the ones on this blog who bring up political violence in threads about impeachment, pronouns, plastic straws….

          2. He’s already un-indicted co-conspirator #1 for at least one Felony.

            How many other criminal investigations is he the target of, and how many of those do you think will turn up enough probable cause to charge him?

            If you’re defending Trump, you’re just as big of a piece of shit as he is, and you clearly don’t give two fucks about the Constitution.

            1. He’s already un-indicted co-conspirator #1 for at least one Felony.

              Which Felony would that be?

              1. What’s the matter, 2018 too far back for you to keep track of Trump’s crimes?

                Or are you just another Trumptard fuckwad pretending that he’s done nothing wrong?

      2. And especially for what he says and does on TV!

  6. Sorry. Don’t buy it. You seem to be buying into the Lawfare type merging of Congress’ Article I, Section 1 Oversight power with their Article I, Section 2 Impeachment power, that we have been seeing in the “subpoenas” that House committees have been sending out recently. They wave their hands about this being an Impeachment investigation, then cite to their Oversight authority. The President, and much of his White House, are not subject to Congressional Oversight, since his power was not created by Congressional legislation, but has equal standing to theirs, being set out in Article II. Constitutional powers do not merge, as seems to be the theory here. They have a choice: investigate as Oversight, or as Impeachment. But there is no such thing as impeachment oversight or oversight impeachment. Separate Article I sections.

    The question then is how far should the courts follow the Nixon impeachment precedent overcoming Executive Privilege, with currently constituted impeachment investigation or inquiry. And I strongly believe that the answer is not very far. In the case of Nixon, the impeachment inquiry had the bipartisan approval of over half of the House, on a roll call vote. In this case, it was initiated by fiat, by one person, the Speaker. Her legitimacy is based on a majority vote of her caucus, with the minority (Republicans) having no say whatsoever, making bipartisan support for impeachment impossible. Allowing this by the courts would be horrible precedent, since it would, essentially, allow the Speaker to override Executive Privilege assertions by the Executive in response to oversight requests, at will, by merely the recitation of one word, lImpeachment”. Effectively gutting Separation of Powers here.

    1. You are simply restating Judge Rao’s dissent in Trump v Mazars. We’ll see if it or the majority opinion holds up down the line.

    2. Bruce, this has nothing at all to do with oversight, and everything to do with the impeachment power—which is no more subject to constraint than the President’s pardon power, or the power of Congress to declare war.

      The impeachment power is a special case, in which the sovereign decreed to the House an ability to borrow the sovereign’s own more-imposing power for the limited purpose of impeachment. The notion of separation of powers cannot prevail against that. During an impeachment, there is no impairment of separation of powers with regard to the executive’s unique powers. They continue as always. The House does not take over any of them. Except that none of the executive’s powers can be used to frustrate impeachment. In that narrow respect, the House acts with sovereign power, not with limited power. In that narrow respect, gutting separation of powers is exactly what the impeachment power intends.

      Even if you find that argument unpersuasive, you will remain at a loss. The Constitution is unequivocal. It says “sole power” on impeachment belongs to the House. That means no other party is legitimately available to interfere—not the President, not the Senate, not the Court.

      1. Except the House has not voted to impeach.
        If the impeachment power gives the House unlimited authority over the Executive because it might vote to impeach, then the separation of powers becomes a joke – because at any time in the future, the House might vote to impeach, therefor everything they do might impact that decision.

        The “Sole Power” rule states that no other body but the House can decide to impeach, but it does not say anything about investigations.

        1. There is perhaps an amount of oversight authority over the executive between unlimited and none that would be appropriate. I’m not sure the executive should have the power to ignore all oversight from Congress, regardless of whether it’s just plain ol’ oversight, or a formal impeachment inquiry, or an informal one, whatever that means.

        2. Toranth, one aspect of the unusual power conferred by the sole power clauses is that while the power is increased, so too is political accountability. By stripping away every vestige of collaboration among government divisions, a sole power clause makes the political accountability of whoever exercises it especial stark and inescapable. The frivolous use of the impeachment power you describe would quickly prove politically ruinous for whomever tried it.

          1. You mean a handful of leaders from deeply blue districts are at risk of blowback, while members from the most lightly of purple districts are safe from going on record?

            No, that can’t be right, if you are justifying the safety of unlimited investigative power by the risk of voter fury.

      2. Bruce, this has nothing at all to do with oversight, and everything to do with the impeachment power—which is no more subject to constraint than the President’s pardon power, or the power of Congress to declare war.

        the House can only impeach executive and judicial officials. The House can not impeach a Senator, nor can the House impeach state officials.

        In that narrow respect, the House acts with sovereign power, not with limited power. In that narrow respect, gutting separation of powers is exactly what the impeachment power intends.

        the House only exercises the power to impeach.

        It has no power to imprison people without judicial recourse.

        It has no power to garnish paychecks.

        It has no power to place liens on real estate.

    3. Bruce, I don’t understand your reference to “the Nixon impeachment precedent overcoming Executive Privilege”. The subpoena at issue in the Nixon case was obtained by special prosecutor Leon Jaworski pursuing a criminal investigation of the Watergate break-in, not issued by the House in an impeachment inquiry, so the state of their inquiry or investigation wasn’t part of the calculus.

      1. I think you understand: He was relating the legal myth, as though it were fact.

        It’s been spread around so much he probably didn’t even realize he was spreading misinformation.

    4. They have a choice: investigate as Oversight, or as Impeachment. But there is no such thing as impeachment oversight or oversight impeachment. Separate Article I sections.

      Both Lathrop and you Trumpkins seem to think “impeachment” is a magic word. Trumpkins think that without 218 people chanting the word three times while looking in a mirror, the House doesn’t have powers to investigate the president, while Lathrop thinks that intoning the word gives the House the power to do anything it feels like.

      1. Not my view, Nieporent. Not, “anything the House feels like.” Just whatever is necessary and proper to exercise the impeachment power. Regardless of details, structural arguments, or who shot John, the Executive does not have, and cannot have, a negative on impeachment.

        My view: If Trump would cooperate and turn over documents and produce witnesses, then forceful action by the House would not be necessary, and would be inappropriate. If Trump does what he has done, and defies the House, then it is within the power (and is also a duty) of the House to do what it must to make the impeachment power work as intended.

        It could never have been the intention of the founders to structure government in a way that turned impeachment into a nullity. The test of what the House can do is whatever it minimally must do to make impeachment work. The test of what makes impeachment work is whether the process provides the House with all the evidence it wishes to see that bears on charging high crimes and misdemeanors. And, additionally, the test is whether the House has been provided with commensurate process to make a political case in favor of impeachment, or fail in the attempt because pertinent evidence does not support the case.

        1. Not my view, Nieporent. Not, “anything the House feels like.” Just whatever is necessary and proper to exercise the impeachment power. Regardless of details, structural arguments, or who shot John, the Executive does not have, and cannot have, a negative on impeachment.

          Imprisoning people without judicial recourse is not a necessary and proper power.

          Nor is placing liens on real estate.

          Nor is garnishing paychecks.

        2. “My view: If Trump would cooperate and turn over documents and produce witnesses, then forceful action by the House would not be necessary”

          If Trump withholds cooperation, he looks guilty.
          If he actually turns over documents and allows witnesses to testify, he can be PROVEN guilty. Which to choose?

      2. All these comments do not address the power of the Speaker. As I noted above, House Rule XII empowers the Speaker to refer a “matter” to one or more committees whose jurisdiction is “related” to the question. The Speaker referred the matter to three House Committees with two to report to the third. No House vote is required to refer a matter to committee, excepting investigation of a member. Since no such rule exists with respect to impeachment, the “matter” of impeachment has been assigned to the respective committees in accordance with House Rules. As the referral power has been duly delegated to the Speaker, no further action is required. I do note that a referral by the Speaker may be over-ridden by the full House. So, the House’s failure to do so is a ratification of the Speaker’s action. In other words, the argument is backwards. Unless the House votes to stop the investigation, it is fully authorized.

  7. “In the case of Nixon, the impeachment inquiry had the bipartisan approval of over half of the House, on a roll call vote.”

    Not really. The impeachment inquiry began with the Judiciary Committee’s party-line vote 21-17 establishing an impeachment inquiry. That was followed months’ later by a full vote, but public pressure was already turning against President Nixon by February roll call vote.

    1. The last paragraph reminds me of the Onion article about former Vice President Cheney threatening to personally attack America if Kerry won.

      1. It’s a favorite disasterbation scenario regardless of party. Bill Moyer also made a similar statement about Bush, Sr. I think, emphasing he was being serious in his concern.

  8. Pelosi’s House seems to have lost much of its leverage over the Trump administration. The president seems to be assuming that he will inevitably be impeached and that there is no legislative policy agenda to be advanced, and so he has nothing more to lose by refusing to cooperate further with the House. He is now positioning himself for the Senate trial and the electoral campaign.

    A rare bit of decent analysis in a sea of talking points intended to leaf people to think something.

    1. Wait, someone who wrote an essay on a topic was intending to lead people to think something about that topic?

      *gasp*

  9. Seeing the House is conducting a secret investigation and is kicking out members of the minority party I don’t see why any sane administration would work with them.

    1. Members of the minority party were not kicked out; they were present. Some random Republican who wandered in off the street was kicked out in accordance with House rules.

      1. The “random Republican” was from the Judiciary committee, the committee normally tasked with investigating possible impeachments.

        IOW, they’re not only not doing this by the book, they’re making sure the people who actually have jurisdiction over this subject are kept in the dark.

        1. IOW, they’re not only not doing this by the book, they’re making sure the people who actually have jurisdiction over this subject are kept in the dark.

          Those are indeed “other words.” But not remotely correct ones. There is no such “book” or “jurisdiction.”

        2. Brett it sounds like your book is coming more out of your hat. The Parlementatian agrees with the Dems.

        3. “IOW, they’re not only not doing this by the book, they’re making sure the people who actually have jurisdiction over this subject are kept in the dark.”

          Although the Intelligence Committee is under no obligation to allow Judiciary Committee members to attend Fiona Hill’s testimony, John Ratcliffe can report directly, since he serves as a minority member on both.

      2. Explain.
        Was the random minority kicked out of the impeachment inquiry hearing? A hearing where those congressmen that are part of the impeachment inquiry committees were present?
        I know, because I saw it on TV, when Pelosi, and Nadler announced they were opening impeachment inquiry. Nadler is chair of the Judiciary committee. Nadler announced the impeachment was on. The Republican denied access sits on the Judiciary. The judiciary is in on the Impeachment. According to press conference, and that’s how the House is running the impeachment.
        Also, the Republicans have put in a request to the House Parliamentarian, for the rules governing the impeachment. The Parliamentarian has failed to produce any rules.

        1. The rules governing this multipronged investigatory style under were passed by the GOP in the Benghazi days.

          1. Multi pronged? So it is NOT an impeachment inquriy. Got it

            1. Impeachment can be multipronged. See Nixon’s draft articles of impeachment for an example.

            2. “Multi pronged? So it is NOT an impeachment inquriy.”

              Today, iowantoo learned that a President can be impeached on multiple charges.

              Well, could have learned, anyway.

  10. Attorneys for General Flynn have filed for supposedly exculpatory evidence that was only recently obtained by the DOJ: cell phones used by JOSEPH MISFUD as part of an effort by western intelligence agents to manufacture “connections” to Russians.

    https://twitter.com/Techno_Fog/status/1184211806174081024

    Perhaps this was obtained by Bill Barr on his recent trip to Italy.

    Hopefully, this means Brennan, Clapper, impeachment, the Democrats, etc are all soon to be DONE HERE. Maybe Obama too?

    1. Dude, this is basically QAnon adjacent at this point.

  11. The “what if” game is in full swing. Ignoring an IG report about to drop explaining abuse of the FISA warrants to spy on a political campaign. Not to mention the illegal 702 lookups the FBI and CIA are abusing. Abusing to the tune of more that 80% of all looks are illegal. Per the conclusion of 2 separate judges investigations.

    Then the ever expanding investigation by Durham. Expanding because he keeps turning over rocks and finding corrupt CIA, FBI, State Dept, and DoJ activities. All of this coming to the publics knowledge. Competing with an impeachment sourced from an anonymous source, that cant be interviewed, and testimony taken in secret.

    1. Your angry hopes keep having to top themselves to explain why you have to keep waiting for satisfaction.

      At this point, everyone is in on the conspiracy, which as totally been proven, and the Storm is Coming.

      1. I seem to remember when people were complaining about how long the Mueller investigation was dragging on you got your lecture finger wagging and told us that these things take a lot of time.

        I don’t know what will come of Barr’s and Durham’s investigations but I am certain that your show won’t be the only one in town. The IG report will probably come out next week so that may be the first salvo.

        1. The difference between Durham and Mueller, is Mueller had nothing to investigate. The FBI/Intell had already investigating the political campaign of Trump for 2 years by the time they handed all the evidence over to Mueller. As we now know Zero evidence.
          Evidence of spying on a political campaign by the Obama administration is clear and evident. No predicate for the spying is non-existant

          Evidence of crime is clear.

          1. Agreed. Mueller knew in the first week that there was no collusion but dragged it out to keep the hoax in the news and to try to goad Trump into doing something they could use against him. Almost worked.

            Sarcastro seems to be trying to convince himself that because there haven’t been any indictments yet that there won’t be any. McCabe first, then Bruce and Nellie Ohr maybe next. And so forth. There will be songbirds aplenty.

          2. You forgot the investigators Trump sent to Hawaii that were going to prove birtherism. Doubtless that conspiracy theory will be proven as well! Hope springs eternal. Pizzagate, a faked Sandyhook shooting anything is possible if you really want to believe. Anonymous sources are not to be trusted unless it is Q-Anon or a Russian troll. Instead it must be posited that the entire FBI, CIA, NSA, military intelligence and State Department are dishonest and corrupt. Not one principled whistle-blower in any of these agencies willing to go to then Chairman Nunes to out the truth? A parade of Trump appointees testifying to Congress that the Russians interfered in the election on behalf of Trump–all lying because Putin says so. It goes without saying that NASA faked the moon landing, and Galileo was a liar. All you gotta do is want to believe.

            1. @Sarcastro
              Yes you did. And I’m not fantasizing I’m speculating. McCabe is a done deal. There are numerous crimes committed in the last three years or so that I know about, and you and FKS probably do too but you won’t admit it. Sort of like your Hunter Biden is just like the Kardashians. Now that’s some crazy.

              Anyway as I have said before this is a waiting period, a phony war if you will (that you hadn’t ever heard of btw). We will see as it all unfolds.

              1. I know that McCabe was less than candid about his leaks that harmed the Clinton campaign, but I don’t see how that is any way connected to a conspiracy against Trump. As far as I can see, it was just used as a “gotcha” to go after him. Fine with me, but it is hardly evidence that the FBI and our intelligence services were out to get Trump. Nor does it seem to matter that Comey’s statements about Clinton probably blew the election for her–and that the first and ostensible reason Comey was fired, according Rod Rosenstein, was Comey’s damaging commentary on Clinton which was against FBI policy. Had Hilary won, he quite likely would have been gone for that reason. Don’t know how any of that translates into folks committing misconduct against Trump, but I understand that’s all you got, so you run with it.

            2. That’s some serious analysis there pal.

        2. I’m not saying this is crazy BS because it’s taking too long, I’m saying it’s crazy BS because it’s BS and it’s crazy.

          You know what I didn’t do during the Muller investigation? Fantasize about all the indictments that were totally coming down.

          1. Also I enjoy watching you progs go all in on the integrity and the patriotism and the transparency of the FBI, the CIA and the NSA. It’s hilarious watching you twist yourselves into pretzels to defend those you usually cast as boogey men.

            1. When you are disappointed, at whom will you direct the blame?

              1. That’s a fair point; I may well be disappointed and I have said as much in other threads. Institutional loyalty runs deep, sometimes deeper than patriotism or the desire for the truth to be revealed. As to the blame that won’t matter, but the damage to our republic will matter. Trump shrinks to insignificance compared to the abuse of power and the willingness to subvert our system of government. If you can’t see that then too bad but it is real.

            2. Weird change of subject. I’m no fan of the FBI. But that’s not the same as the idea that they are super-duper corrupt and colluding with the CIA, DoJ, and State to do the crimes.

              1. Also? Colluding with Obama, the Clinton campaign, the Mueller investigation, the FISA Court, some British guy, and Ukrainian politicians, to pin the blame on Russia (and hide the server).

                You can tell this is true, because there is so much of it.

                1. You can tell at least some of it is true because of the proof not because of the quantity.

                  1. It feels right and it shifts the blame in the direction we like. Must be true!

Please to post comments

Today in Supreme Court History

Today in Supreme Court History: October 14, 1911

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10/14/1911: Justice John Marshall Harlan I dies.

Justice John Marshall Harlan I

"Let Us Restore to Social Intercourse …

that harmony and affection without which liberty and even life itself are but dreary things."

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Not that I know how to arrange that, but it's as worthy a goal today as it was in 1801.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Probably the best way to start is getting rid of intolerant liberals who want to dictate their way of life and beliefs on everyone.

    1. And we’re off to a good start!

      1. Liberalism is not compatible with a liberty based society. The “my way or the highway”, “if you disagree with me and all my extremist beliefs then you are a racist, bigoted nazi” way thinking and acting just doesn’t work. Time to recognize that and throw the bums out.

        1. It’s hard to determine whether you are deliberately being ironic or if you really don’t see the irony in your comment.

      2. It’s crude, but not far off from reality.

        Individualism can allow socialists to simulate socialism with contracts. It won’t have the death camps and coercion and bloody single-mindedness of true socialism, but I wager it would satisfy 90% of them.

        The opposite is not true. Socialism can’t even tolerate individualism, let alone simulate it.

        1. I am confident that I am at least as stridently anti-collectivist as you are. And maybe the risks of collectivism are indeed so grave that Prof. Volokh’s is a hopeless naïf to invoke Jefferson here, and we instead ought to treat our ideological foes with the most incivility we can muster.

          If so, let’s come out and say it.

          1. A free society has to tolerate those who despise freedom, or it isn’t a free society. I do not believe such tolerance has to be civil when those threatening me are not civil. After all, threatening to deprive someone of liberty is hardly a civil action to start with.

            1. So, perhaps I would say, “A mixed economy, including socialized healthcare, and more vigorous government constraints on the size of per-share-voting corporations seems to be what this nation needs now.”

              When I said that, was I “threatening” to deprive someone of “liberty?” Or was I civil?

    2. If only this were ironic humor ….

      1. JtD’s attitude seems not uncommon on the right.

    3. Yup. Similarly, the way to end war is for all the good people to join together and kill all the bad people.

      1. And repeat, ad infinitum, until the last person standing commits suicide!

      2. Seemed to work in WWII.

  2. I’ll agree with this sentiment about civility.

    Most recently, Ellen and George W were sharing a booth at a recent Cowboys game. OK, sure. No issue. Ellen did quite well in her commentary.

    But then later for the outrage on Twitter from the hard left that Ellen “dare” sit next to that evil conservative.

    1. Business is so used to multipliers, as in each letter written by someone angry enough to do so represents thousands of people who weren’t quite so motivated.

      So along comes flash in the pan twitter outrage and that represents over three hundred trillion people.

      1. Perhaps….

        One of the hallmarks of Twitter and e-mail is it makes responding so easy. Anger can be in the moment. Used to be, it would take work to write a letter and mail it. And that’s a higher bar.

  3. Professor – no hat tip to Reason’s own video about the Adams/Jefferson campaign of 1800?

    https://www.youtube.com/watch?v=Y_zTN4BXvYI

  4. Given his commitment to free-speech fundamentalism, it seems peculiar that Professor Volokh would entertain civil discourse as a worthy goal. A norm for civil discourse will always come at some expense to the notion of absolute protection for uncivil speech.

    1. My dear Mr. Lathrop, you’re obviously a great guy who gives careful consideration to issues, so let me ask whether you have been 100% fair to the strong free-speech position by slapping the “fundamentalist” label on it? Usually this term is, I regret to say, used as a dismissive devil-word.

      1. Eddy, good question. With regard to EV, I use the word advisedly, but not as a “dismissive devil-word.” Instead, I refer to the musty religious overtones the word also carries.

        In many of my comments criticizing EV’s speech threads, I have pointed to a tendency to cite long-ago, pre-internet precedents to support arguments about internet-related issues. Not infrequently, those come up in cases disputing issues which had never been seen until the internet, in effect, invented the issues and thrust them to the fore.

        Internet publishing has been an especially fertile area for cases of that sort. I have been urging EV to take note of changed circumstances which his commentary quite often seems to overlook.

        I admire EV’s depth of knowledge, reasoning skills, and clear writing. I suggest the nation could profit if he chose to use those to help guide the rapidly-evolving 4-cornered balance between internet speech freedom, defamation, censorship, and law.

        Instead, EV seems to insist again and again that the law of speech as it was circa 1980 is all the nation needs, or will ever need. Old-time religion, it seems to me. It looks destined to be overtaken by events, with results for the nation notably worse than if EV, and others with similar skills, had pitched in to improve the outcomes.

        1. Ah, now I understand where you are coming from. Thank you for the perspective.

          (We all have to be on our best behavior on a thread about civility.)

        2. Why would the internet require a different “balance” of free speech rights than high speed printing presses, radio, television, ham radio, telephone, CB radio, motor vehicles and planes (allowing much more mobility so people could speak over a much broader number of venues at a reasonable cost and in places they were not known and therefore subject to social snubbing), code-talkers, AOL, CompuServe, newsgroups, email, BBSs, or the telegraph did?

          The internet really doesn’t seem all that different from the others — except that the others now seem “normal” or obsolete. If in the future quantum computing allows communicating at nearly infinite speed/volume, 100% securely, anonymously, and without wires or radio waves, will that become the new bogeyman to justify restrictions on free speech for a generation that was born and raised with the internet just being a thing as common and as historically familiar as wheeled vehicles are today?

          1. The same reason it was OK to tape phone lines without a warrant, why it is OK to search a car without a warrant, and why it is OK to search garbage cans without a warrant. (I may not be up to date with all these)

            Government expands. That’s what it does. Expecting otherwise is a fool’s errand. Expecting a government to limit itself is especially silly.

        3. Stephen,

          I think maybe an example would help make your point clearer.

          1. bernard, perhaps more helpful than an example would be a few general descriptions of novel kinds of problems the nation must now cope with because of internet publishing.

            1. Publishing giantism. There is no precedent in the nation’s history for the stifling national command of advertising revenue now wielded by a very few large publishing corporations. A major enabler of that freakish growth has been the decision in Congress to pass Section 230 of the Communications Decency Act. That enabled the most aggressive business models to publish everything, from all contributors, without reading any of it. Absent that specially privileged recklessness, the growth could not have occurred as it has. What has happened has gone far to destroy legacy news media, by depriving them of ad revenue, without offering anything to replace what has been lost in terms of the quality and variety of published content.

            2. Replacement of the legacy publishing business model, which prioritized assembling and building an audience to sell to advertisers, with a clicks-based business model, which sells individual stories to advertisers, one-by-one. The baleful effects of that change on publishing content quality would need many pages to describe. In brief, the changes include advantaging lies over truth, and outrage over edification. The changes also facilitate organized campaigns of disinformation, run by people who best understand how to exploit the new model. Election interference is but one example, but an important one.

            3. Combining data-based user tracking with the clicks-based business model has created something entirely new and hugely disruptive in multiple dimensions: an audience-surveillance-based publishing business model. The implications run wild, but always include overwhelming damage to the notion of personal privacy.

            4. Publishing without reading, because responsibility for defamation has for practical purposes been all but abolished. That means that every defamation, every copyright violation, every fraudulent scam, every false election story, etc., and on and on, will always be published, and do damage, before there can be any action to correct the problem. Usually, no remedy for damage already done will prove possible. That makes a mockery of the previously-helpful adage that the best solution for bad speech is more speech. More speech rarely has power to alleviate damage already done. Not reading before publishing multiplies damage of that sort many-fold.

            5. Constriction of publishing variety. That is just the flip side of giantism. A publishing universe entirely ruled by a few giants creates an ever-present risk of viewpoint discrimination, without allowing alternative outlets.

            6. The generalized effect of all of the above, acting together, is rapidly increasing pressure for government censorship, and also for business interference in publishing from government. Uncompensatable damage creates demands for government acton.

            These effects are novelties in the world of publishing, newly delivered by the internet. The law of publishing grew up without challenges of these sorts to worry about. In some cases, especially the case of publishing without reading, the law had long relied on private editing to buffer the problems, and keep them away from the courts. Left unchanged, that old body of law will not cope successfully with all these new challenges.

        4. It seems as if you’re just dancing around the idea you want some form of government censorship of speech because the internet.

          1. donojack, I have consistently opposed all government censorship of speech, in all its forms. One of the principle reasons I think government needs to reconsider the special privileges it has extended to internet businesses, is because I think those privileges contribute to building public pressure for government censorship.

    2. Lathrop is correct, some speech can be quit dangerous. For example, the word “triggered” can cause people to lose control of their car.

    3. I don’t see anything peculiar – or even particularly incongruous – about think that a more civil discourse would be nice but that 1. Government regulation isn’t a particularly effective means of getting there and 2. The costs wouldn’t be worth the price even if were.

  5. Maybe the upcoming Project Veritas exposé of CNN will help.

    1. lol Veritas keeps plugging away. No one believes them anymore. But they are useful as a propagandistic tonic for the troops.

      1. I wonder what else has been plugging away for several years, and people rightly start to wonder if they should be believed.

        1. Birthers? Climate change deniers? Deep State coup conspiracy theorists? Scalia murder conspiracy theorists? Rafael Cruz/L.H. Oswald conspiracy theorists? Seth Rich/CrowdStrike/Ukraine conspiracy theorists? Massive illegal immigrant voter fraud conspiracy theorists? Inauguration crowd size conspiracy theorists? Alleged victims of Trump sexual abuse are all just a conspiracy of ugly feminists theorists?

          1. You forgot a few:
            Russian collusion; Trump cheering Nazis in Charlottesville; Trump hiring prosties to piss on a bed; climate doom; Hunter Biden tots qualified for the job; Dems aren’t for open borders; Sanders isn’t a commie; Clinton never went to Pedo Island; Russians stole the election from Hillary; Lynch’s meeting with Clinton was about their grandkids; the Clinton foundation is a charity; Biden is an anti-corruption crusader; Omar never married her brother; the Green New Deal is sane; the media doesn’t cover for Dems; there has been no coup attempt; encouraging kids be transgender isn’t child abuse; late term abortion isn’t murder

            1. Also:
              We don’t want to take your guns; government paying off student loans is fair; radical Islamists aren’t; illegal immigrants aren’t; government is what we all do together; progs love free speech; no walls have ever worked anywhere; Dems don’t want to create a new electorate; Google, Facebook and Twitter are unbiased; the NYT is not a propaganda organ; Comey, Brennan and Clapper don’t belong in jail

      2. I like how you’re already effectively calling their report a lie, even though none of us have seen it yet.

        Reality isn’t that bad. You can actually accept it once in a while without denial or making up stories. Things will be ok.

        1. Liars lie, Ben.

          To expect that this time they’ll tell the truth is foolish.

          1. Veritas: This guy said this, here is video proof of the guy saying it.
            Volokh liberals: Lies! I don’t believe a word of it.
            MSM: A man can change into a woman by clicking his heels five times and wishing on a magic star.
            Volokh liberals: Sounds about right to me!

            1. They edit and lie and do inept sting attempts. That’s all they’ve ever done. You’d think the fact that they have to distort so hard would tell you something about what wholesale rejection of the media has brought you.

              But no.

              You eat it up. That’s your brand.

      3. We edited this video because of time constraints. You can view the unedited version on our website. How does that compare to your latest cut and paste editing effort re Trump’s China presser?

  6. Uh oh. Is this a prelude to a civility crackdown? I have a feeling that Headmaster Kerr is going to be delegated to whip us into shape.

    1. God I hope so. This place has become a cesspool.

  7. Social intercourse is NOT social networking with electronic apparitions. Social intercourse is face to face, and I have not been in a fisticuffs since high school.

    Step away from the keyboard, take a look around and a breath of fresh air.

    1. An after thought: I am legally armed with a gun, as many are, and have never committed an uncivil act with my gun. There is a grand devide between the portrayal of society and the experience.

  8. One can’t seriously make this point without singling out our crude, immature and monstrously uncivil President and the 40% or so of Americans who cackle with glee at his latest embarrassing insult. Everyone else’s offenses are so minor as to not merit a mention.

    1. Not even a mention. Got it.

      1. Yes that’s correct. The reason he gets away with it is because too many people say “both sides do it!”

  9. Jefferson and his contemporaries seem to have variously used “men” to refer to (what we would call) white men, white adults, adults, citizens, etc. When “men” was singling out whites, was this done in part because (what we would call) racism was even then uncomfortable to more explicitly acknowledge?

    1. “uncomfortable to more explicitly acknowledge”

      Jefferson wrote much about race in his Notes on the State of Virginia, which was aimed at both a domestic and foreign audience.

      As I recall, he saw slavery as bad but entertained the idea that black people were inferior.

      What was uncomfortable at the time was acknowledging the gap between theory and practice when it came to American liberties and black people’s lack thereof. Jefferson being an example.

  10. Civility has suffered from the demise of gatekeepers. Not that long ago the fringes were simply ignored by the leaders on all sides of the political spectrum and the media which was generally limited to big published for news and 3 mass TV networks.

    The divisions across the spectrum were probably less, with people generally being more tolerant of differing views, even views some would find abhorrent.

    The solution is for the opinion leaders to show some respect for those they disagree with and call out those on any side who go to extremes. To give all people some understanding.

    I find many issue failing to appreciate the position of those who disagree with them and caricaturing their opponents as the worst possible interpretation of their position. Examples are easy to come by.

    I recall a story my father told me from the mid sixties at the height of the civil rights protests. At a meeting of the church board someone raised the question of what would happen is a black family wanted to join our church/ There was some discussion and someone finally said ,” You know Dr. and his wife from a nearby historically African American College has been attending Sunday evening services for years. The discussion was over and as far as I know never brought up again. Apparently when the Dr. started attending services no one thought to make anything of, as they shouldn’t have and life went on. In so many cases today we have people going out of their way to inflame situations because of their political crusade instead of meeting people one at a time with respect as individuals.

    1. “Civility has suffered from the demise of gatekeepers.”

      If anyone qualified as a gatekeeper it was the New York Times, and they’re still around, most recently publishing an article suggesting that one of the editors’ fellow-Democrats is linked to Nazis and Russians – because the Democrat in question is critical of the military-industrial complex. See this site’s own reporting:

      https://reason.com/2019/10/14/the-new-york-times-wonders-aloud-if-tulsi-gabbards-anti-war-anti-establishment-message-makes-her-a-stooge-for-nazis-and-russian-bots/

      1. Eddy,

        I suggest you read the NYT article that the piece you link to is talking about.

        Mr. Britschgi’s depiction is rather distorted. The “hints” and insinuations he finds seem to be mostly his own imaginings.

  11. Considering that lies and hyperbole were in full swing prior to the revolution, perhaps this is a case of something long wished for that has never actually existed. As far as I know, King George never actually ate babies and it has been admitted by the perpetrators that no Native Americans were actually involved in dumping tea into Boston Harbor. Hearst proved definitively more than 100 years ago that outrage could be made to overwhelm reason with enough press coverage.

    The instantaneous news cycle of the internet places reliable news and fallacy free opinion at a considerable disadvantage to the clicks generated by making unchecked ‘facts’ and uninformed ‘opinion’ available immediately. The rush to publish leads to the further promotion of prejudice at the expense of thoughtful discourse.

  12. Not that I know how to arrange that,

    None of us, as individuals, can arrange that. We can, of course, try to do what we can in the hope that others will do the same.

    One thing we might do is call out those on our side of the political divide who engage in obnoxious, uncivil, even inflammatory, rhetoric.

    Bluntly, EV, I haven’t seen you do that (not that I claim particular virtue there either). So your calls for civility ring a bit hollow.

    1. The proprietor acted decisively for civility in banning Artie Ray Lee Wayne Jim-Bob Kirkland for making fun of conservatives (although the acquiescence when his right-wing fans call for killing liberals suggests it might have been partisanship masquerading as civility).

      Then there is the curious but telling silence regarding Pres. Trump (including with respect to free speech issues, regarding which it often takes far less than a presidential pronouncement to trigger a comment from the proprietor) . . .

      His playground. His rules. Others can judge those rules, however, including with respect to civility.

    2. This goes down a whole rabbit hole – “you must denounce this person you don’t know and probably never heard of but whom I think is similar to you or on the same ‘team.'”

      Then the mutual demands for “self-criticism” evolve into another excuse for incivility.

      1. Eddy,

        You have a point, but I don’t think everyone should be issuing denunciations right and left, just that publicly bemoaning incivility is unconvincing when those moaning seem unwilling to criticize those on their side.

        1. I suppose there are various explanations for the prof only sometimes getting specific about offenders on “his” side (or either side for that matter). The charitable interpretation which I will presume is that it can be challenging to monitor offensive comments, especially if one is trying to maintain an open forum for opinions.

          There’s also the question, as I alluded to, of who is on “his” side – The prof may be a right-wing reactionary conservative from the perspective of academia, but compared to certain commenters he’s on the liberal side.

          1. And apart from the Rev, who thinks Volokh is on Trump’s side? Certainly the other Conspirators rarely seem to be.

  13. So the consensus seems to be:

    1) Civility is a wonderful thing

    2) Which is why the other side are such Hitlerite scum because they violate norms of civility

Please to post comments

Today in Supreme Court History

Today in Supreme Court History: October 13, 1890

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10/13/1890: Justice Samuel Miller dies.

Free Speech

Allegations of Sex with the Devil Aren't Libelous,

says a federal court.

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From Magistrate Judge Richard A. Lanzillo in Peschmann v. Quayle (W.D. Pa. Aug. 13, 2019):

[Marinka] Peschmann attempts to state a defamation claim against [Stephen] Quayle, arguing that his comment that she had sexual relations with the devil imputes serious sexual misconduct to her and therefore constitutes defamation per se. [Quayle's statement was, "When I hear a woman making a claim to a national editor of a major Internet uh, uh, uh presence, news presence, and talking about sleeping with the devil … If someone says they are sharing the bed with the devil that means they are having sex with an entity, okay?"]

Courts, for certain, have found false allegations of serious sexual conduct to be capable of defamatory meaning. For example, a claim that a college professor "falsely and maliciously stated to [University] employees and other third parties that she had been sexually assaulted and harassed by [another professor], when in fact, she had not" imputed serious sexual misconduct and stated a claim for defamation per se. A statement that a plaintiff "ran young girls for him down at spring training, ages 12 to 14 … so that's statutory rape every time you do that" was capable of a defamatory meaning. Likewise, a public statement that a plaintiff was "an attacker," thereby "forever labeling him in print as a violent sexual deviant" was also found to be sufficient to state a claim for per se defamation. Asserting to others that a plaintiff had committed "adulterous sexual conduct," was "a slut," "the queen of sluts," and a "whore" also was found to capable of a defamatory meaning and, therefore, stated a claim of per se defamation. Finally, a false claim made to and subsequently published by a local newspaper that a high school band director had sexually harassed students stated a claim for defamation because it alleged serious sexual misconduct.

Here, however, Quayle argues, and the Court agrees, that his statement was pure hyperbole or an epithet, such that it was not provable and thus not defamatory. Statements which cannot be proven true or false, such as insults and name-calling, even if offensive, are not capable of a defamatory meaning. And the Constitution actually protects such words.

Similarly protected are those statements which "could not reasonably have been interpreted as stating actual facts about the" individual, and statements of opinion unless they imply "undisclosed defamatory facts justifying the opinion." The Third Circuit has held that "the law of defamation does not extend to mere insult" and that there is "a distinction between actionable defamation and mere obscenities, insults, and other verbal abuse."

Here, Peschmann herself acknowledges that Quayle's statement is "impossible to be true," "preposterous," "ludicrous," and "outrageous." In other words, Peschmann recognizes that this statement was pure hyperbole and not an assertion that a reasonable person could take literally. As such, the statement is not capable of a defamatory meaning. Peschmann's defamation claim against Quayle based upon his "sex with the devil" statement should be dismissed.

The District Court didn't expressly discuss the Magistrate Judge's recommendations on this, and went along with the Magistrate Judge's recommendation on some issues but not all of them, so in principle the matter might still be open. But I think that, on this point, the recommendation is clearly correct.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. It *can’t* be true, because the devil is no longer interested in sex with humans: the Antichrist was born to a *different* woman many years ago, and the devil’s roving days are over.

    While I don’t know the precise identity of the Antichrist, Nostradamus predicted he’d be a member of the Supreme Court.

    1. There’s another school of interpretation which says the Antichrist was born in 1968, the year Rosemary’s Baby came out.

      https://www.thefamouspeople.com/born-1968.php

  2. Quarae, Professor Volokh: would the result be the same if the Devil were the plaintiff?

  3. Law school final: Using only originalist arguments, support or critique the decision.

  4. If she floats like duck, she’s made of wood, and therefore, a witch. (Rex v. Booth, 1975)

  5. I wonder how many “reasonable people” believe in the existence of the devil as a real being, and could take the assertion literally.

    1. Yes, I was wondering about that too. I don’t know how many people believe in the devil – as a percentage of the population presumably less than in 1776 but still quite a few I would guess. If it’s, say, 30% of the population can one really say that these 30% are not “reasonable people” ?

      Well obviously one can, but in the same way that one can say that folk who believe socialism could work are not “reasonable people.” I find myself doubting, if a large minority think something, that it is reasonable for legal purposes to describe them as not “reasonable people.” It seems to me that one has to use some sort of benchmark related to what people do in fact believe. Once no doubt majorities beieved in witches and the flatness of the Earth. And a quick google lands me on a 2007 Gallup poll that asserts that 70% believe in the devil.

      So, stipulating for the present that enough people believe in the accomplishability of sex with the devil, I am troubled by :

      Here, Peschmann herself acknowledges that Quayle’s statement is “impossible to be true,” “preposterous,” “ludicrous,” and “outrageous.”

      First it is not obvious to me that these words imply a belief in the deed’s impossibiity according to the laws of Physics, and may merely be of the form “Debbie couldn’t possibly be having an affair with Beelzebub – she’s a devout Catholic.” And second :

      In other words, Peschmann recognizes that this statement was pure hyperbole and not an assertion that a reasonable person could take literally.

      This seems to go a bit further, asserting that even if Peschmann does believe it is pure hyperbole; and definitively ruling that no reasonable person could believe in the possibility of sex with the devil. (Note “recognises” which implies not merely an expressed belief, but a belief which is true in fact. You cannot “recognise” that James Bond is a real person, though you can state it and even believe it.)

      And if I understand it right, Peschmann’s personal belief ought to be irrelevant. The question is whether “reasonable people” could or could not believe it.

      1. Sorry the structure of this sentence went astray :

        This seems to go a bit further, asserting that even if Peschmann does believe it is pure hyperbole; and definitively ruling that no reasonable person could believe in the possibility of sex with the devil.

        This seems to go a bit further, asserting that Peschmann herself believes it to be pure hyperbole; and definitively ruling that no reasonable person could believe in the possibility of sex with the devil.

        1. G*****nit

          Sorry the structure of this sentence went astray :

          This seems to go a bit further, asserting that even if Peschmann does believe it is pure hyperbole; and definitively ruling that no reasonable person could believe in the possibility of sex with the devil.

          It should say something more like :

          “This seems to go a bit further, asserting that Peschmann herself believes it to be pure hyperbole; and definitively ruling that no reasonable person could believe in the possibility of sex with the devil.”

      2. I don’t know it has to be untrue by the laws of physics.

        Here, Peschmann herself acknowledges that Quayle’s statement is “impossible to be true,” “preposterous,” “ludicrous,” and “outrageous.” In other words, Peschmann recognizes that this statement was pure hyperbole and not an assertion that a reasonable person could take literally.

        Wasn’t this the downfall of Falwell’s case against Playboy for their cartoon of him having sex with his mom? He said nobody would ever believe it is true.

        1. Agreed, if you the plaintiff concede that nobody could possibly believe it was true then you’ve not got a leg to stand on. Or at the very least no damages to collect.

          But that’s not quite the same as acknowledging that you yourself know that it couldn’t possibly be true (either because of the laws of Physics or because you’re a good Catholic girl) while leaving open the possibility that other people may believe it.

    2. Believe in the devil or believe in a corporeal devil? Scalia believed the devil exists.

      1. Justice Scalia said he believed the devil exists.

        I am willing to give him the benefit of doubt on whether he believed it.

    3. If you believe the Bible then the Devil is a real being who does occasionally walk amongst humans. There are many historical accounts (up to and including the modern age) of people talking about meeting the actual devil or the devil appearing at major events.

      I know the irreligious libertines on this blog will call it “hog wash”, but many perfectly intelligent, reasonable, and rationale people will say that the devil does walk among us.

      1. Maybe. I think a lot of people would define “reasonable” and “rationale” [sic] and even “intelligent” as NOT including a belief in a biblical devil. There are a lot of people who believe that they were abducted by aliens and given anal probes. But I’d challenge the premise that these are reasonable or rational people. And I would never call such skeptics irreligious. That’s not accurate. (There are hundreds [thousands??] of religions that do not have a devil or devil-like figure.) Did you possibly mean ‘libertines who do not believe in a Christianity-based religion?”

        p.s. I have only seen it as ‘hogwash,’ but Google Ngrams does show hog wash as perfectly acceptable (albeit much less popular than the one-word version).

          1. [I cut-and-pasted the Ngrams link to my OP and then to my “reply.” Must be a problem with the Reason website…not sure why an innocuous link to a Google website would otherwise be censored out.]

        1. I think a lot of people would define “reasonable” and “rationale” [sic] and even “intelligent” as NOT including a belief in a biblical devil

          I’m sure you are right. But that was my point. If x percent of the population thinks that what y percent of the population thinks is “not reasonable” then can the legal system sustain an understanding of “not reasonable” for values :

          (a) x = 90%, y = 10%
          (b) x = 70%, y = 30%
          (c) x = 50%, y = 50%
          (d) x = 25%, y = 75%
          (e) x = 35%, y = 20%

          and so on ?

          I do not believe in either the devil or in God (or gods) – though I would describe such beliefs as arational rather than irrational, but whichever term we ungodly choose to deploy, there’s nothing more a/ir-rational about believing in the devil than about believing in God. And yet I doubt that a Judge, in 2019, would be willing to conclude openly that no reasonable person could believe in God.

          Hence my confidence that “not reasonable” in this legal context cannot be understood without reference to how popular a belief is.

  6. Professor V,

    How about a canonical list of all insults that have passed Judicial scrutiny? That would be a useful article for anyone who wants to insult folks without incurring liability.

    You are welcome to the idea, I only ask for a footnote.

    Best,

    Robert

  7. A few decades back, a libel suit was allowed to proceed in which a poorly-disguised allegedly fictional beauty pageant contestant competed in the talent portion of the pageant by fellating someone who, during the proceedings, levitated into the air. She offered to use this talent in the cause of world peace.
    As far as I know, this act is impossible. If I am wrong, I’d appreciate references.

Please to post comments

Today in Supreme Court History

Today in Supreme Court History: October 12, 1977

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10/12/1977: Regents of the University of California v. Bakke argued.

The Burger Court (1975-1981)

Border wall

Federal Court Rules Trump Cannot Use "Emergency" Declaration to Divert Funds to Build his Border Wall

The decision is the first to address the legality of using the emergency declaration for this purpose. Previous wall cases involved Trump's attempts to redirect other funds.

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Earlier today, federal district judge Judge David Briones issued a decision holding that it is illegal for President Trump to use his declaration of a "national emergency" to divert funds to build his border wall. This is the first judicial ruling directly addressing the issue of whether it is legal to use the emergency declaration for that purpose. Previous wall decisions dealt with the administration's attempts to divert other funds to build the wall, from sources that did not depend on the use of the emergency declaration. Judge Briones' ruling comes in a case filed by El Paso County and the Border Network for Human Rights.

In February, the president issued a declaration announcing that the situation at the border qualifies as a "national emergency." That, in turn, allowed him to make use of a wide range of powers triggered by an emergency declaration. Among them was authority to use 10 U.S.C. Section 2808, which states that, during a "national emergency" that "requires the use of the armed forces," the president can reallocate defense funds to "undertake military construction projects … that are necessary to support such use of the armed forces." The administration contends that Section 2808 gives it the authority to transfer some $3.6 billion in defense funds towards the border wall. The decision also addresses efforts to  rely on 10 USC Section 284, which allows the use of Department of Defense "counternarcotics" funds to provide support for "counterdrug activities" by other agencies.

Judge Briones' ruling concludes that such a diversion is illegal. He reaches that conclusion for two reasons. First, it violates the Consolidated Appropriations Act of 2019, which ended the government shutdown caused by Trump's fight with Congress over border-wall funding:

To resolve this case, the Court turns to one of the three golden rules of statutory
construction "established from time immemorial" that "a more specific statute will be given precedence over a more general one." Nevada v. Dep 't of Energy, 400 F.3d 9, 16 (D.C. Cir. 2005) (quoting 1 Comp. Dec. 126, 127 (1894) and Busic v. United States, 446 U.S. 398, 406(1980)). This rule "appli[es] to appropriations bills." See id. Thus, "[a]n appropriation for a specific purpose is exclusive of other appropriations in general terms which might be applicable in the absence of the specific appropriation." Id…..

[T]he CAA specifically appropriates $1.3 75 billion for border-wall expenditures and requires those expenditures to be made on "construction. . . in the Rio Grande Valley Sector" alone. CAA § § 230, 231. Defendants' funding plan, by contrast, will transfer $6.1 billion of funds appropriated for other more general purposes f military construction, under § 2808, and counterdrug activities, under § 284. Their plan therefore flouts the cardinal principle that a specific statute controls a general one and violates the CAA….

The court also ruled that the funding diversion violates Section 739 of the CAA, which mandates that "None of the funds made available in this or any other appropriations Act may be used to increase. . . funding for a program, project, or activity as proposed in the President's budget request for a fiscal year until such proposed change is subsequently enacted in an appropriation Act, or unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act":

§ 739 creates a general rule and an exception. The general rule is that "[n]one of
the funds made available" in an "appropriations Act" (including the CAA) "may be used to increase funding for a program, project, or activity" that was "proposed in the President's budget request for a fiscal year." CAA § 739. The exception is that appropriations may be used to increase such funding if that use is authorized by "the reprogramming or transfer provisions" of an "appropriations Act." § 739 prohibits Defendants' plan to fund the border wall because the plan is barred by that provision's general rule and the plan does not fall within its exception.

Defendants' plan is barred by § 73 9's general rule, because it (1) seeks to use funds "made available in" an "appropriations Act"; (2) "to increase funding for a program, project, or activity"; (3) that was "proposed in the President's budget request for a fiscal year." First, Defendants' plan seeks to use funds "made available in" an "appropriations Act." CAA § 739. It taps appropriated military construction funds under § 2808 and counterdrug support funds under § 284. As the White House has acknowledged, all funds have been "appropriated by Congress….."

Second, Defendants' plan also seeks to use these appropriations to "increase funding for a program, project, or activity." CAA § 739. Construction of a wall along the southern border is a singular "project" under that word's ordinary meaning. See Merriam Webster's Dictionary 932 (11th ed. 2003) (defining "project" as "a specific plan or design") Indeed, the Executive Branch has consistently referred to the wall in this manner….

Defendants' funding plan is not saved by § 739's exception: the funding increases it proposes are not "change[s] . . . made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act." Under federal law, an "appropriations Act" is an Act whose title begins: "An Act making appropriations." 2 U.S.C. § 622(5); 1 U.S.C. § 105. Neither § 2808 nor § 284 begins with this language. § 2808 is a provision of the Military Construction Codification Act, Pub. L. No. 97-124, 96 Stat. 153 (1982), which says nothing about appropriations in its title, nor makes any appropriations in its body. And § 284 is a provision of the National Defense Authorization Act, Pub. L. No. 114-328, 130 Stat. 2000, 2381, 2497 (2016), which by title and substance is not an "appropriations Act." Cf Pub. L. No. 115- 31, 131 Stat. 135, 229 (2017) (separate statute appropriating DOD funds). The Proclamation violates § 739 of the CAA.

I  am not sure what to think about the court's "specific trumps general" argument. It raises some difficult statutory interpretation questions that I will leave to those with greater relevant expertise. But the Section 739 point strikes me as compelling, for exactly the reasons explained by Judge Briones.

Resolving the national emergency question in this way allows the court to avoid virtually all of the big picture issues surrounding the emergency declaration, such as whether the situation at the border qualifies as "national emergency" under the National Emergencies Act of 1976, whether the relevant provision of the National Emergencies Act (if interpreted in the broad way the administration advocates) is unconstitutional, and even whether the text of Section 2808 actually allows the use of funds for border wall construction (in my view, the answer is an emphatic "no"). It also does not consider whether the president has the authority to use eminent domain to seize property for border wall construction not specifically authorized by Congress.

The narrowness of the ruling might prove attractive to appellate judges (including perhaps some Supreme Court justices) who want to find a relatively simple way to dispose of the national emergency issue, without having to set any broad precedent. But the broader questions could, nonetheless,  come back into play when the administration appeals the decision.

The ruling is also notable for the fact that it comes in a case where the plaintiffs have clear "economic" interests at stake. El Paso County controls land near the area where the wall would be built, and its construction is likely to damage its tourist industry and reduce its revenues. In addition, some $20 million of the money diverted would come from a military construction project in the County, in which the local government has an obvious economic interest, as well.

Some previous rulings in border wall cases have been decided on procedural grounds, because the plaintiffs in question lacked sufficient strong interests to qualify for standing. In a recent Ninth Circuit decision holding that Trump lacked authority to divert other military funds for border wall construction, a dissenting judge argued that the plaintiffs were not legally entitled to bring the suit, because their lack of an "economic" interest placed them outside of the "zone of interests" protected by the relevant federal statutes. The Supreme Court eventually stayed the Ninth Circuit decision, possibly based on such procedural concerns.

In the El Paso case, the plaintiffs' economic interests are difficult to deny. It is hard to have a much clearer economic interest than having the government build a wall near your land, using funds that might otherwise benefit you. Thus, it will be difficult for the administration to get this case dismissed on procedural grounds. Courts will likely have to continue to address it on the merits.

Given the virtual inevitability of an appeal, this case is far from over. And there are many other wall-building cases still making their way through the system, whose outcomes remain to be seen.

It is also worth noting that Judge Briones is a Democratic appointee. So far, all of the Democratic-appointed judges who have issued decisions in wall cases have ruled for the plaintiffs, while all but one Republican appointee (Judge Clifton of the Ninth Circuit) have voted against them. It is, possible, therefore, that the wall litigation will continue to split judges largely along partisan lines. On the other hand, all the Republican judges who have voted against the plaintiffs, so far, have done so on procedural grounds. Judge Clifton is the only one who has reached the merits, and he voted for the plaintiffs. At least some other GOP-appointed judges might take similar positions when and if they get the chance to rule on the merits, as well.

Today's ruling is a notable victory for opponents of the wall. But the outcome of both this case and that of the broader legal struggle over the wall remain uncertain. Stay tuned!

UPDATE: The original version of this post overstated the directness of El Paso's economic interests that will be affected by the construction of the border wall. I apologize for the mistake, which has been corrected.

 

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  1. “Construction of a wall along the southern border is a singular “project” under that word’s ordinary meaning. See Merriam Webster’s Dictionary 932 (11th ed. 2003) (defining “project” as “a specific plan or design”)”

    Not really. If this waste of land and money is every fully constructed, it will be as a result of multiple projects, just as the portions that have already been built were built as different projects. Each of those separate projects will have specific plans and designs and will be built under separate contracts (even if by the same company).

    1. If this waste of land and money is every fully constructed,

      As someone whose family was stuck behind a wall for decades, let me assure you: walls work in keeping people from crossing national borders illegally.

      If you oppose the wall, it’s not because it doesn’t work, it’s because you favor illegal migration into the US by the millions.

      1. As someone whose family was stuck behind a wall for decades, let me assure you: walls work in keeping people from crossing national borders illegally.

        No. They don’t. The wall I assume you were referring too actually didn’t work very well in keeping people from crossing legally or illegally.

        If you oppose the wall, it’s not because it doesn’t work, it’s because you favor illegal migration into the US by the millions.

        Walls don’t work. End of story. And if someone doesn’t favor a wall doesn’t mean they support illegal immigration. But what is also true is that nations that suppress immigration die.

        1. regexp…You know, if walls don’t work, then why do rich people put them up around their property? And why do countries all around the world use them? Prisons use them.

          regexp…walls don’t work
          Rest of world…they build walls

          regexp…I think I am going with the rest of the world on this one.

          1. The wall examples you use (prisons, private homes) are not apt comparisons to a border wall. In a prison you are looking to keep people in not keeping people out. With private homes there are no alternative means for getting in if you have a wall. You can get into the United States by airplane and completely avoid the wall. The biggest cause of illegal immigration are visitors overstaying visas. Take the money from the wall and apply it to hiring more investigators and increasing number of ALJ’s so you can process deportations faster you will make a larger dent in illegal immigration numbers.

            1. “With private homes there are no alternative means for getting in if you have a wall.”

              People can climb a border wall but not a wall around a house?

              Why?

              1. You can climb both, but the point with home security, like internet security, is generally to make your home a less appealing target than your neighbor’s. The U.S. will always be more attractive to enter than any other country in our hemisphere, so the relatively minor inconvenience of a wall will not change that calculus.

                Also, the wall around a house deals with a smaller space which affects various aspects including the cost-benefit analysis and the fact that someone climbing the wall around your house has a very high probability of being spotted by someone whereas someone climbing over or tunneling under a border wall will likely choose one of many locations that are highly unlikely to be spotted.

                Will a wall marginally increase the difficulty (i.e., cost) to get into the U.S.? Sure. Are the huge costs (which will include not only the tens of billions to construct it, but also the cost imposed on individuals and communities in taking their land or splitting their communities, environmental impacts, and reputational costs to the U.S. among other costs) of a marginally effective wall worth the minimal deterrent/preventative effect of a wall? No.

                1. Maybe, instead of a border wall, we should just put up signs that say, “Protected by ADT” along the border.

              2. “People can climb a border wall but not a wall around a house?”

                I’m guessing most walls around rich people’s houses are for privacy , not security, purposes. Or they are there simply to mark property boundaries. Which makes them just like the fences ordinary people put up.

                It’s trivially easy for a burglar to climb a wall to get into an estate. It’s harder to climb back out when he’s loaded down with loot. That’s a problem illegal aliens don’t have–they aren’t worried about the return trip.

                1. They do have children however. It’s rather harder to climb a wall with a 30 pound child on you.

              3. “People can climb a border wall but not a wall around a house?”

                Well in the example above, the issue is people flying over the wall in airplanes, and landing on the other side at airports. Most homes don’t have airports within their walls. There usually aren’t airports in the middle of prisons, either. I know this because I saw Con Air.

            2. nymind….I think you forgot to mean one wall type I mentioned: border (And why do countries all around the world use them?)

              Look, I’m good with doing both: hiring more investigators and increasing number of ALJ’s so you can process deportations faster. And doing a wall in addition. And mandating the use of eVerify for every job in the US. 🙂

              You’re 100% correct on your overstay visa point.

              1. You won’t get any argument from me about mandating eVerify. I am just concerned about the budget if you are going to build a wall and hire more investigators/ALJ’s. I am also skeptical because any wall that can keep people out can also keep us in and what that could be mean for civil liberties or citizens.

                1. NY….I am not at all concerned about a wall ‘keeping us in’. We live in a magical place: America. 🙂

        2. In all the decades of their existence, when has the term ‘fiscal responsibility’ ever been a major concern let alone the main concern for libs for all the cockamamie things they do and all of a sudden they expect us to believe its the primary thing they care about now? Yeah I’m disappointed and a bit hurt. Even I don’t think that little of the intelligence of some of the progressive posters here.

        3. A border wall or fence doesn’t have to stop 100% of border crossers to be effective. Israel implemented an effective border fence that has diminished its suicide bomber infiltration to almost zero. Link: http://en.wikipedia.org/wiki/Israeli_West_Bank_barrier#Effectiveness

          It is difficult to smuggle human beings compared to drugs, guns or contraband. They require food, water, air to breathe, have to relieve themselves periodically, can’t be kept in hidden compartments for days on end, weigh 130 lbs or more and take up a lot of space.

          There are many ways in which illegals get taxpayer support. As just one example, every illegal alien’s child is entitled to a public school education (even if the child is also illegal) and the average cost of this education is $11,000 per year (2014 figures). An illegal alien’s child enrolled in first grade will cost the taxpayer $132,000 to graduate from high school. This $132,000 of course becomes unavailable to educate the children of citizens and legal immigrants.

          So a $25 billion wall will pay for itself if it deters just 190,000 illegal aliens of child-bearing age from crossing the border illegally.

          1. Israel: build wall to stop suicide bombers
            USA: builds wall to stop kids going to school.

      2. “If you oppose the wall, it’s not because it doesn’t work, it’s because you favor illegal migration into the US by the millions.”

        No, it’s because it won’t make a big enough difference to be worth the cost. It won’t do anything to stop the majority of illegal immigrants, who enter legally and don’t leave. It won’t do anything to stop the illegal immigrants sneaking through points of entry in the backs of trucks. It won’t do anything to stop the illegal immigrants coming in through the drug-smuggling tunnels. It won’t do anything to stop illegal immigrants coming from Canada. It won’t do anything to stop the illegal immigrants coming in by boat.

        So yes, it might temporarily inconvenience a small fraction of the illegal immigrants who just try to walk across the border all on their own. That doesn’t make it worth the land or cost.

        “As someone whose family was stuck behind a wall for decades, let me assure you: walls work in keeping people from crossing national borders illegally.”

        If you are talking about the Berlin Wall, I’m pretty sure the guards willing to shoot people trying to escape had more to do with it than the wall itself. And no, we aren’t going to start shooting people for illegally entering America.

      3. Alternate world according to progs:
        CNN: This just in, scientific proof Border wall prevents 100% illegal immigration.
        Sarcastro, Kirkland, regexp, Harris, Bernie etc: Is that so? Well that changes everything! Build that wall!…U.S.A U.S.A U.S.A

      4. If you’re talking about the Berlin wall, bear in mind that it was only 87 miles long, hardly enough to cover our southern border, and manned by guards willing to shoot and kill those who tried to get over it.

        I’m sure some of the bigots here have no problem shooting illegal immigrants, but I hope even most Trump supporters consider that unacceptable.

      5. As “someone whose family was stick behind a wall for decades”, that did not teach you it’s petty dictators who build walls to curtail all our freedoms?

        1. Dictators build walls to keep people in, free societies build walls to keep people *out*.

          1. …how many free societies have built walls along an entire border?

  2. Wonder why so many people get mad over a guy who just wants to keep us safe from illegal immigrants.

    1. Wonder why the guy didn’t actually get Congress to approve his plan to keep us safe when he had a majority of both Houses of Congress for two years too.

      Safe or otherwise, the power of the purse (see Art I) is in their hands, not his.

      1. If it isn’t within the powers of the President to keep us safe, just like Obama did with all those unilateral executive actions, then what is the President supposed to be doing?

        1. My copy of the Constitution says he’s supposed to faithfully execute the laws that Congress passes. YMMV, check what yours says, maybe it’s different?

          [ And I was against the “pen and phone call” back then too ]

      2. If the Congress wanted to keep the power of the purse in their hands, they shouldn’t have given the President the power to move funds around based on questionable unreviewable declarations.

        1. Apparently they didn’t, according to this judge.

          1. Oh, the ruling freely admits there are many ways that funds can be transferred around. Just not in this case, for “reasons”.

            Welcome to TrumpLaw ™.

            1. The transfer of funds in this case was unequivocally authorized by military construction appropriations and standing federal law. This garbage ruling will not stand. even in the 9th circuit.

              1. My mistake. Just assumed something silly like this had to come from a court under the umbrella of the 9th circuit. I feel a little better knowing that an appeal will be to the 5th circuit.

        2. I’m filled with admiration at the way he blundered into turning a racist boondoggle into a button connected directly to the pleasure centres of your brains.

      3. Well, because a majority of Congress doesn’t want us kept safe from illegal immigrants.

        Which would be the end of the matter if they could come out and say it, and survive the next election.

        But they can’t, so they have to be tricky about doing their legislative thing so that it isn’t bloody obvious they want the country flooded with illegal immigrants.

        Their being tricky, instead of just passing a law stating that the border with Mexico must remain undefended, opens the door for Trump to be tricky in trying to thwart them.

        And that’s the nature of the fight we’re watching. With random, (No, not random, as Ilya acknowledges. Democratic.) 5th circuit judges fighting along side Congress.

        Ultimately, which side will the Supreme court be on? That’s the question, because the covert nature of the fight leaves them enough wiggle room to rule either way.

        1. Well, because a majority of Congress doesn’t want us kept safe from illegal immigrants.

          I’m not sure if that is true (and I’m definitely not sure it was true during the first two years of the Trump admin), but for now let’s leave the truth of this claim aside and just suppose it was true.

          I don’t think we want a Republic where “Congress is not in favor of this good policy” gives the Executive the right to contravene their express intent. In this case, it was clear during the shutdown that Congress could have but did not allocate money for the border wall.

          Certainly it’s not a thing that Republicans would want a President Warren or Biden to do, any more than Democrats should want Bush or Trump or Cruz to do.

          1. I don’t want that republic, either. But what we’ve got is a republic where Congress gets elected lying about the policy they want, and attempt to covertly prevent the contrary laws they had to pass for political reasons from being enforced.

            That’s a nasty situation for a democracy.

            1. That’s on the voters, it’s not on the government to fix by unconstitutional means.

              1. Ultimately yes. I’m just pointing out that, because Congress had to conceal their opposition to border security, they failed to comprehensively prohibit it in clear terms. Because doing that would be political suicide.

                This left Trump with ways to game the system within the law to accomplish border security.

                1. How in your view did Congress conceal its opposition to border security? And if they did hide it, how did you come to find it out? What non-public records did you review to reach that conclusion?

                  From 2007 to 2013, when Democrats controlled Congress, funding for the Border Patrol went from around $2.1B to $3.5B. This year, the Democratic House approved a $4.6B Border Patrol Budget. In around the same period Customs/ICE’s budgets went from around $12B to $18B. The FY 2019 budget for both those agencies is ~ $22.3B, the highest ever (for both).

                  The argument here is that any amount of funding below some outrageous amount that President Trump demands is amounts to open borders or Democrats “conceal[ing] their opposition to border security”. Which is ludicrous, because it cuts out all middle ground except for a pointless, expensive, mostly symbolic border wall. President Trump might as well champion resolutions affirming Americans hatred for illegal immigrants. But his ineffective approach is totally insincere, whereas everyone else is being disingenuous. Only Republicans’ motives are pure as the driven snow.

                  What’s really happening here is that roughly equivalent numbers of people support/oppose the border wall, the middle of America wants more border security but not the wall, and that’s what we’ve been given. The President went ahead and decided he was going to get his wall one way or the other–because he’s a fucking narcissist who can’t stand losing–and it’s going to weaken support for the wall moving forward. Which is great, because the wall is a stupid idea.

      4. Now that’s just plain nonzenze. Military construction appropriations and federal law clearly and unambiguously authorized the transfer and use of funds. This bull schifff ruling will not stand. It’s a serious legal embarrassment, even in CA.

        1. Just to be clear, did you read the opinion, or at least the parts about whether the appropriations authorized this expenditure?

          My read is “Congress appropriates $1.3B for the border wall only in the Rio Grande Valley” means what it says.

          1. The 2019 CAA does not preclude the use of other appropriated funds for additional construction and Congress has in fact appropriated other monies for military construction (see the Energy and Water, Legislative Branch, and Military Construction and Veterans Affairs Appropriations Act of 2019). Those funds are subject to reprogramming/transfer under the specific terms of that appropriation and have been properly accessed for border construction following the emergency declaration pursuant to 10 U.S.C. § 2808. Sec. 739 is no barrier to the use of those funds. “None of the funds made available in this or any other appropriations Act may be used…unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act.” The other appropriations act clearly allows the reprogramming/transfer. The 5th circuit will not let this decision stand. I wonder if the district court itself might reconsider the decision itself.

      5. Claiming Trump “had” Congress is hogwash. Did you forget the 2018 RINO purge already?

    2. “keep us safe from illegal immigrants”

      “Us”? Got a frog in your pocket, kemo sabe? I don’t remember asking anyone to protect me from people I might want to know or do business with, and I sure don’t remember delegating that decision to you, or Trump?

      “Illegal”, as in contraband like illegal drugs, tobacco, alcohol? Illegal like so many other victimless crimes? Again, I didn’t authorize anyone to make such decisions on my behalf, especially not you or Trump or any other politician.

      1. Meanwhile, back in America, the electorate did ask to be protected from illegal aliens flooding our country. And proceeded to elect a man who promised to do that.

        1. Actually, the “electorate” voted for Clinton. Trump represents the “electorate” only when refracted through our antiquated system for selecting the president.

          Call it a legitimate win, if you like. Don’t construe it as a mandate.

          1. That “electorate” included tens of millions of third worlders who are not real Americans

            1. Yeah, but what about Clinton supporters?

              1. Some are, most aren’t.

                1. You missed the joke. Sad, for a troll schtick.

            2. Could you point to any particular element in the Constitution, the Declaration of Independence or the history of our nation that supports this outlandish notion that people that move to America are not Americans?

              1. Being an American is about a culture and sense of shared ethos. It’s not merely about citizenship.

                1. You are rather an outlier in American culture yourself, so careful there.

          2. He won a vast majority of states in our federal union. Now, we could adopt a new system allowing NY and CA to choose all our presidents, if we wanted to adopt a mindbogglingly stupid way to choose presidents.

            1. He won a vast majority of states in our federal union.

              This kind of pedantic equivocation wouldn’t be necessary if you could just admit the truth and get on with it. Why are you so insecure?

              1. So, he lost the electoral college? Interesting point of view. Did I say interesting? I meant insane.

                1. You think the “electorate” means just “the electoral college”? Interesting point of view. Did I say interesting? I meant idiotic.

                  1. You do understand that there is no such thing as a “national” electorate in the context of a presidential election? Maybe you were out combating global warming when they discussed the subject in civics class? Or maybe you’re confused as to which country this is?

                    1. You do understand that there is no such thing as a “national” electorate in the context of a presidential election?

                      First of all, this is false. Second, as I said earlier, emphasizing the peculiar way in which popular support is filtered into the selection of a president, in this country, is not something one would do if they could just confidently admit that Trump lost the popular vote.

                      The only reason you (and others) make this point, so repeatedly, to the point of obfuscating the truth, is that you want to claim to an electoral mandate that Trump never received. The efforts are as disingenuous as they are transparent. And it’s so, so pointless. You and I can both agree that the electoral college vote is what matters. You and I can both agree that Clinton’s GOTV strategy was not sufficient to win where she needed to win. That’s all that matters. Why does it matter so much to you (and to Trump) to say that the popular vote doesn’t matter?

                  2. To be fair, we’ll never know what would have been the outcome if the GOAL was to win the popular vote. Campaign strategy would be different. Maybe some potential Trump voters stayed home in CA and NY that wouldn’t have voted had they thought their votes were important.

                    I’m just saying, you play to win the game according to the rules that exist.

                    I’m not saying I have any clue how likely a Trump victory would have been if the popular vote was the goal – maybe not very – but it’s kind of pointless to point out who “won” according to rules that didn’t apply.

                    1. That “would” have voted, I meant.

                    2. To be fair, we’ll never know what would have been the outcome if the GOAL was to win the popular vote.

                      This is not a relevant counterfactual.

                      The claim being made was: the people voted for Trump’s policies. The truth of the matter is that they did not. Whether or not Trump could have received a true electoral mandate, in some hypothetical scenario, is beside the point.

            2. “He won a vast majority of states in our federal union. ”

              Backwater religious schooling; homeschooling involving substandard parents; and conservative-controlled, nonsense-teaching, fourth-tier (or unranked) schools all have consequences. The thinking reflecting that by comment is among them.

              1. 306 electoral votes sounds like a vast majority to me.

          3. “Actually, the “electorate” voted for Clinton.”

            Well, CA did. CA was her margin of victory in the meaningless popular vote.

            1. And California is majority non-white.

              1. Doing your public service of inserting a non sequitur merely to remind us of your virulent racism? Thanks, I guess.

                1. Maybe if non whites would start acting like Americans

                2. “non sequitur”?

                  Without the right-wing intolerance, how much of the Volokh Conspiracy would there be? Check the comments on substantive legal contributions unrelated to bigotry; then count the comments with respect to the red meat for Republicans.

            2. That’s a little like saying that Texas, Louisiana and Florida voted for Trump. (Those states, collectively, gave him the same number of electoral college votes representing his margin of victory over Clinton.)

              It’s a nonsensical, meaningless statement.

              1. Given that Hillary’s ENTIRE margin was smaller than her margin of victory in CA alone, no, it’s not irrelevant. It’s just CA continuing to make idiotic choices.

                1. And California’s margin of victory doesn’t translate to a margin of victory for Clinton unless you also count all the other millions of votes she received. So you haven’t demonstrated why California’s votes are specifically relevant.

                  Californians are Americans. They count just as much as everyone else.

                  1. To the average Volokh Conspiracy commenter, a person who is educated, reason-based, tolerant, accomplished, and a resident of a modern, successful community is not a “real American.”

                    Some people respect solely the votes of half-educated, intolerant, superstitious, disaffected Americans from our shambling southern and rural backwaters.

                    Those people are entitled to their opinions and have rights, too. May the better ideas (continue to) win.

        2. Elected a Congress that lied about meaning to do it, too.

        3. They also elected a coordinate and co-equal branch of government in Congress, which refused this particular method after explicit deliberation (during the shutdown). Congress didn’t even pass a border wall funding bill between ’16 and ’18 when the GOP had a majority in both houses!

          [ And, in the case of appropriations, this would be a power that the Constitution expressly confers on the legislative and not executive branch. ]

          At some level, this is on us — if we were at all serious we’d send a clear mandate rather than this muddle.

          1. nonzenze (chuckling at name)….We agree = At some level, this is on us — if we were at all serious we’d send a clear mandate rather than this muddle.

        4. So Americans didn’t vote for all those Democrats in the House?

    3. Undocumented immigrants have a lower crime rate than your average American. Why? Because getting noticed means being forced to return to the country you were fleeing. And all they want is a better life for themselves and their families.

      Unlike you.

      1. No, they don’t. They are way overrepresented in federal and state prisons relative to their population. Legal immigrants commit less crime, because they have been vetted. The only study that concluded illegal immigrants commit less crime was a Cato one. Cato is form open borders because they want cheap labor and don’t care if it turns the country into a 3rd-world shithole because they think they’ll be the 1% with a bunch of cheap servants.

        1. Rye Rye,

          There are multiple studies which support the common sense notion that illegal immigrants commit fewer crimes than the general population.

          https://www.nytimes.com/2019/05/13/upshot/illegal-immigration-crime-rates-research.html

          I say common sense because:

          a. Illegal/undocumented immigrants are people like other people.
          b. The costs to an illegal/undocumented immigrant in getting caught committing a crime are much, much higher than the costs for the rest of the U.S. population (less sympathy at sentencing, and the near certainty of deportation after prison).
          c. Ergo, because the motivations to commit crime are largely the same (though some greater economic incentive), the huge disparity in costs would lead a rational person to conclude that illegal/undocumented immigrants would likely commit crimes at a lower rate than the general population.

          This analysis only really changes if you dispute (a). I have known many, many immigrants, documented and not. In my anecdotal experience, they tend to be at least as moral and virtuous as native born Americans.

          1. That was an interesting article to me, mostly because of how hard it demonstrated the “How to Lie with Statistics” principle.

            For example, it mixes quotes about the reports about legal immigrants with those about illegals, and cites think tanks that make unusual assumptions about population size, that apply odd filters to categories of crimes, that fail to apply consistent standards for identifying illegals, or make unjustified adjustments to data. That last point it important: “After controlling for multiple socioeconomic factors”, without listing those factors and justifying their usage, is evidence of… questionable analysis.

            Of course, there’s contradictory evidence, too. Here, try this article for an interesting discussion on how two people can analyze the exact same data and come up with different answers.

            1. Yes, it is an interesting discussion. It’s pretty damning against FAIR’s conclusions, don’t you think? It’s strange that you think it’s more accurate to base conclusions on federal government reimbursements rather than on incarcerations or arrests, especially since SCAAP data does not compare with other incarceration counts.

          2. Crime:

            The studies proving that “immigrants are law abiding” willfully conflate legal immigrants with illegal immigrants.

            Legal immigrants have been fingerprinted and have been through criminal background checks many times before becoming permanent residents, so it is not surprising that they are more law abiding than average. Something as small as shoplifting is enough to reject an application.

            Illegal aliens have not been vetted by anyone, and in many cases don’t even possess traceable documents issued by their own home country. Sure, there are many farm worker illegal aliens who are not criminals, but there are large numbers of illegals who are criminals, usually preying upon their own ethnicities. In Texas alone, in a four year period, 39% of murders were committed by illegal aliens.

      2. regexp…I do not question their motivation. Truly, I don’t. We live in a magical place, America. We have built an amazing country. Who would not want to come here?

        That said, we have a legal process to come here. It is not unreasonable to ask that foreigners follow it, and obey the law.

      3. This is a lie

    4. “Wonder why so many people get mad over a guy who just wants to keep us safe from illegal immigrants.”

      Most Americans wonder why our vestigal bigots do not recognize their stale, ugly views are incongruent with modern American and a fading stain on America’s future.

      America — land of wonder.

  3. The fact that you left out the fact that the judge is a Hispanic Clinton appointee is a material omission

    1. Ilya did put in that he was a Democratic nominee. He was born in El Paso, Texas and served in the United States Army. I am trying to find out whether he is Hispanic since first Google search didn’t mention any names of family members.

    2. It’s about as significant a material omission as you leaving off the final period at the end of your sentence.

      1. Maybe. I took to heart Justice Robert’s admonition that we have federal judges, not Bush judges or Obama judges or Trump judges.

        But I’d want to look at any social media postings, political donations, associations belonged to, public speeches made – and get a complete picture of Judge Briones before I make a statement that he is politically biased. Maybe he is, maybe not.

        If there is bias – that IS material.

        1. No, you’re just engaged in ad hominem-ism.

          The only material “bias” worthy of note would be evident in the opinion itself. If you can’t point to the effect of any “bias” there, then it serves no purpose to dig into the personal “social media postings” or whatever else about the judge you might happen to assert is actually relevant. A judge can be extremely political in their personal time but still issue an opinion that fully comports with the law.

        2. Being of Hispanic descent IS bias itself

  4. This is just sad. Military construction appropriations acts always specifically provide/allow for the transfer of appropriated funds for defense wide military construction projects. I believe the most recent passed late 2018. In other words, the transferred funds at issue in the case were made pursuant to the reprogramming or transfer provisions of an appropriations act.

  5. Apparently, the invasion of the US by a million illegals per year, without any vetting, among them people from hostile communist countries and known hotbeds of anti-American terrorism, doesn’t count as an “emergency” to progressives. And Somin seems positively happy about it. Disgusting. I hope people will take notice and remember this come the next election. Obviously, the judiciary is out of control.

    1. I live on within miles of US/Mexico border and if what we are experiencing is an “invasion” and an “emergency” then we can count ourselves lucky. People who come here only to find a better life for themselves and their family are a net benefit for our country. I would hire one of those so called “invaders” over your sorry ass any day of the week. At least I would know I would get an honest days work by someone who wants to be here. Unlike you.

      1. You could also pay them illegally low wages with no required benefits because, hey, they cannot really COMPLAIN can they?

        The Left: Still not really opposed to slavery.

        1. Straw man much?

          1. Open borders advocates dislike reality immensely.

        2. The Left: Still not really opposed to slavery.

          The irony of this comment being, of course, that Trump’s various efforts to constrain legal immigration will just push more immigrants into “illegal” status, adding more bodies to the shadow labor force that employers (red state and blue state) rely on.

          That’s what’s really going on here. Trump isn’t doing a thing to “protect” us from immigrants. He’s just ensuring more of them will be “illegal,” exploitable, and subject to deportation at a moment’s notice.

        3. damikesc is supportive of centrally planned minimum wages, state-directed benefits packages (for private employers), etc. Are you part of “The Left”?

    2. Of all the arguments against it, this is the only one that seems reasonable. “Emergency” powers are to give the president leeway to act quickly when waiting for Congress to allocate money might take too long.

      Yet Congress had time to consider and reject funding. Therefore the emergency is no longer such a thing.

      1. Indeed there was (hopefully still is) a bipartisan push to amend the statute to clarify that emergencies cannot arise out of any matter on which Congress has duly deliberated.

        Perhaps instead of arguing about this particular action, a reasonable way forwards might be just to fix the law for the future.

    3. NOYB2….Not to worry, as I write, the Judiciary is being changed.

      There are ~860 Article III positions, exclusive of SCOTUS. POTUS Trump currently stands at 150 confirmed. There are 16 awaiting final votes, 21 passed out of committee, and at least another 50 nominees waiting in the wings. The judiciary will have been changed permanently by November, and there is no going back.

      Of the ~180 Appelate positions, POTUS Trump will have filled 50 of them. He has gotten 43 on the court, and 7 await hearings/votes. We have not had a POTUS impact the circuit court that broadly since FDR.

      My point to you: The judiciary is slowly being brought under control by constitutional means, by nominating judges who will circumscribe federal power. If POTUS does nothing else other than reduce the federal bureaucracy, and restore the judiciary, his will have been a very consequential presidency.

      1. I will enjoy your bitter wailing when America’s betters enlarge the Supreme Court. After observing the benefits of that development, perhaps America’s betters will enlarge the circuit and district benches.

        After that, right-wingers can try to reverse the tides of American progress and the culture war.

        1. If you try that, I will eagerly cheer on a 2nd Amendment remedy. Just remember, conservatives have more bullets than you perverts have ballots.

          1. If there’s anything the Volokh Conspiracy is good for, it’s the exposure of conservative thinking — a blend of gun nuttery and long-simmering right-wing outrage about the culture war — to a broader audience.

            1. Kirkland…This is not about SCOTUS. It never was. This is all about what SCOTUS sees = 50+ Appellate judges on circuit courts by November 2020 out of 180 total; 43 have been confirmed, 8 more will be by Hannukah. Next year, with a couple of Appellate vacancies, they will probably be filled as well. By itself, this will have an impact for a generation, likely more.

              You can denigrate people all you want. This objective reality remains, regardless of your words.

      2. “…by nominating judges who will circumscribe federal power.”

        You mean like… Presidential power?

    4. For me, the true “emergency” is the increasing stridency of the white nationalist populists and their successes in corrupting our political culture to such an extent that significant numbers of people no longer care much for freedom, elections or the rule of law – as long as someone else’s ox is getting gored.

      1. No, it’s more that you’re seeing that white men have a point beyond which they won’t allow themselves to be pushed.

      2. Name these white nationalists. CNN had Richard Spencer on and he was hardly supporting Trump. David Duke tends to support Ilhan Omar. Who are these people you fear so?

        1. The people I “fear” are people like the commenters here, who will tolerate and even celebrate rampant lawlessness from the Trump administration, just because they think he’s “protecting” the country from illegal immigration.

          See also: Trump, his family, his VP, and most of his cabinet.

          I don’t have any issue with people, and politicians, thinking (wrongly) that a border wall is the way to deal with illegal immigration. I don’t have any issue with their trying to push through legislation authorizing the construction of such a wall.

          What I do have a problem with is deciding that, despite Congress declining to fund the wall, despite immigration’s not being a true “national emergency,” we have a president who will shuffle appropriated funds around at will in order to deliver on a campaign promise, in mere service of his own election prospects. This man did not have the will, savvy, or influence to negotiate border wall money when he had a compliant Congress. But now that his attention has turned to his re-election – that is to say, trying to avoid all of his corruption from being revealed once he is out of office – there is this “emergency” that requires him to subvert the will of Congress and to de-fund countless projects. All for a campaign prop.

          And there are people here cheering him on. That’s what frightens me. These people will cheer anything this man does, no matter how lawless or autocratic it turns out to be. They’ll cheer the destruction of the republic.

          1. “The people I “fear” are people like the commenters here, who will tolerate and even celebrate rampant lawlessness from the Trump administration, just because they think he’s “protecting” the country from illegal immigration.”

            So, THIS makes them “White Nationalists”?

            So, again, “white nationalist” means “someboidy I don’t agree with”.

            1. No, what makes them “white nationalists” is the belief that many of them share, which is that (white) America needs to be protected from the “invasion” of various non-white immigrant groups.

              1. And the worst white nationalists of all are the Hispanics:

                Most Hispanics back deportation, want immigration cap cut in half

                Quotes:
                An election eve poll finds sweeping support for immigration enforcement even among most Hispanics in the United States, potentially bolstering Donald Trump’s presidential bid.

                The Pulse Opinion Research survey found that 51 percent of Hispanics believe that there has been “too little” done to enforce immigration laws. What’s more, by a margin of 49 percent to 36 percent, Hispanics “support a policy causing illegal immigrants to return home by enforcing the law.”

                Another key finding: Most Americans want a cap of 500,000 immigrants a year, about half the current level.

          2. Really?

            Obama was regularly slapped down by the courts for his executive overreach. His administration expanded executive power all the way into killing American citizens without trial!

            In contrast, Trump has been winning most of his court cases. The times he loses tend to be on procedural grounds – Not a long enough comment period, or some other APA ‘violation’. His practice of declaring a “national emergency” about immigration is weak, but it is STILL better than declaring a “national emergency” about Ukrainian bank transfers – and most importantly, it’s still squarely within the powers that Congress gave him.

            The biggest thing Trump has done is that he has revealed how much Congress has abrogated responsibility to the Executive… and if Congress can work up the spine to fix that, it’ll make Trump Presidency one of the best in the past century and a half.

            1. Obama…

              I’m not talking about Obama. I’d be happy to concede certain points about his “executive overreach,” but it’s not relevant to Trump’s lawlessness.

              In contrast, Trump has been winning most of his court cases.

              First of all, this is simply false. Second, it’s important to understand that many of the court challenges of his policies are still in very early stages, or may yet to be even brought. Third, the judicial record, such as it is, is not as indicative as you seem to think that it is.

              In many cases, Trump’s actions have been clearly lawless, but few people see profit in challenging them in court, or they lack standing to sue. His unilateral abuse of tariff authority (with accompanying “exemptions” handed out on a case-by-case basis) is a good example.

              The times he loses tend to be on procedural grounds – Not a long enough comment period, or some other APA ‘violation’.

              Also not an accurate characterization. In any event, APA “violations” are legal violations, violations of duly enacted law. The APA exists precisely to constrain the actions of the executive/administrative state. How can you just wave off failures to abide by the rules for making rules?

              The biggest thing Trump has done is that he has revealed how much Congress has abrogated responsibility to the Executive… and if Congress can work up the spine to fix that, it’ll make Trump Presidency one of the best in the past century and a half.

              This is like saying that the Nixon presidency was a “success” because it invited reforms to constrain presidential action (which Trump is doing his best to circumvent or undermine).

              1. When talking about Presidential behavior, or norms, or “lawlessness”, then comparisons to other Presidents is directly relevant. Trying to pretend that this that behavior was considered acceptable then is now problematic does more to damage the credibility of those that make the argument than it does to condemn Trump.

                As for Trump winning, he has been. His immigration restrictions won, despite a long series of biased judges who were wrong about it. His tariffs were upheld, his appointments have been upheld, the firings were upheld. The wall funding has mixed results so far, as with the ’emoluments’ cases. I’m not sure what cases you think Trump has been losing on grounds other than the APA – can you list them for me?

                As for the APA, losing on procedural grounds is silly. While it is losing, it’s admitting that the law or regulation Trump wanted was perfectly legal, he just needed to wait longer before publishing it. That’s not a threat to law and order, or death to our democracy.

                You post is centered around a complaint about Trump’s “National Emergency” declaration… which is completely legal. Congress decided to give the President extremely broad powers to declare emergencies and to accomplish certain tasks by doing so. You may think this is foolish (I certainly do) but Trump’s usage has been BETTER than past usages. Again, you might not like to look back at Obama and Bush and Clinton, but those are the comparative usages that exist… and they are even less justified than what Trump has done.
                I would like to hear your criticism about the “National Emergency” in terms of how it is illegal or unlawful. You’ve made that declaration, and then expressed a strong opinion about other posters because of it… but you’ve done nothing to justify your accusations. Please, do share with the rest of us.

          3. “What I do have a problem with is deciding that, despite Congress declining to fund the wall, despite immigration’s not being a true “national emergency,” we have a president who will shuffle appropriated funds around at will in order to deliver on a campaign promise, in mere service of his own election prospects. This man did not have the will, savvy, or influence to negotiate border wall money when he had a compliant Congress.”

            Curious to get your evaluation of DACA.

            1. DACA was intended to be a temporary exercise of prosecutorial discretion to create political time and space for more comprehensive immigration reform. It was never intended to be, and was not, a permanent program granting Dreamers rights explicitly precluded by duly-enacted law, and as far as I am aware, Obama never re-allocated appropriated money in order to implement it.

              It was not a political stunt pursued in desperation to have something to show his base. It was a genuine attempt at a solution.

              As I understand it, the legal infirmity of DACA stems not from the idea that Obama’s ICE could pick and choose whom to deport, but specifically from the fact that DACA provided this whole process and quasi-official “blessing” not to be deported. It created a kind of rule-like structure that was – it is said – beyond presidential authority to create. So what’s bizarre to me, about holding up DACA as an example of Obama’s lawlessness, is that it was actually very law-like in effect, promoting core rule of law values for a population whose deportation really served no one’s interests.

              1. DACA, like DAPA, created a registration and work authorization and tracking program. These programs employed people, used equipment, and occupied buildings – all of which was never authorized by Congress. I don’t know where that Administration reallocated the funding from in order to pay for those people, buy that equipment, or rent those spaces. But it did so, or it violated the law by NOT paying for those things.

              2. “It was not a political stunt pursued in desperation to have something to show his base. It was a genuine attempt at a solution.”

                As with the Trump and the wall, Obama did not have the will or savy to get anything done about immigration reform when he had a compliant congress. DACA, like the expanded wall funding, had been considered and rejected by Congress. DACA, like the expanded wall funding, was all about showing his base he could do something.

  6. Irrespective of “. . whether the president has the authority to use eminent domain to seize property for border wall construction not specifically authorized by Congress.” The issue of import is that the United States has the authority to delineate and control its borders. The fact that an individual may have adjoining property on the other side of the international border is immaterial. Federal law is controlling.

    Otherwise, an individual who owned such a tract of land could operate an illegal border crossing without the oversight of the Border Patrol. (What a great way to facilitate drug shipments. Charge traffickers to cross the border under the guise of “Private property.” )

    The Supreme court need to jump in promptly and shut down Federal District court judges issuing federal injunctions. Are we going to allow the issue to be litigated in EVERY democratic district court with another plaintiff? The ultimate results will be the ultimate stalemate. No party will ever again be able to get anything done as the other party could fight it in every opposing district court with injunctions until the end of time.

    1. The eminent domain thing isn’t about individuals with adjoining property on the other side of the international border, this is about folks whose properties are divided by the border wall.

      If it were the former, I would agree with you whole-heartedly that there is virtually no issue with seizing (and paying fair market value for) a parcel of land directly abutting the border for the purpose of a barrier.

  7. Trump does not care about ending illegal immigration. If he did, he would have listened to all those experts he fired on the right way to do it.

    If you want to end or curtail illegal immigration into this country, particularly when it comes to the Central Americans who have been coming lately, what you’d need to do is require all employers to use E-Verify and reduce the crime and corruption that is driving people to come here in the first place. Trump has steadfastly refused to do the first and has only undermined efforts to do the second.

    The wall is just a political stunt. It’s a cartoonish hack at the problem, and the only reason that Trump is breaking several laws and risking a constitutional crisis over it is because his only strategy for winning in 2020 is invigorating a base that understands the issue only in simplistic terms.

    So, if you’re here telling the rest of us that you care about “national borders” and preventing an “illegal invasion” of our country, and you honestly believe that Trump’s preposterous wall will do anything about that, then congratulations – you’re exactly the kind of chump Trump thinks you are.

    1. “If you want to end or curtail illegal immigration into this country, particularly when it comes to the Central Americans who have been coming lately, what you’d need to do is require all employers to use E-Verify and reduce the crime and corruption that is driving people to come here in the first place. Trump has steadfastly refused to do the first and has only undermined efforts to do the second.”

      1) Dems oppose E-Verify and have for years.

      2) Why is it America’s job to fix up other countries?

      1. 1) Your blanket statement is untrue. Some Democrats and some Republicans have opposed it. Most Democrats want changes and/or to have it as part of a multi-pronged immigration deal. This is not the same thing as “oppose.” Moreover, the post is about Trump and Republicans and they controlled everything for two years and didn’t pass and implement legislation mandating e-verify or, for what that is worth, the border wall. In other words, the SimonP’s point is exactly right: “The wall is just a political stunt.” If Republicans had really wanted it, just as if they really wanted to repeal and replace the ACA, they would have done it. Instead, they just like getting their constituents all excited over these issues, but have no interest in actually finding and implementing a solution.

        2). America often has an interest in helping “fix up” other countries. If too many immigrants is a problem, the cost-benefit analysis may well favor helping the origin countries rather than trying to make America impenetrable. This is very likely the case given that improving the home countries has snowballing positive effects that help many things other than just reducing undocumented immigration (national security, additional allies on important geopolitical issues, etc.) and is a long-term solution whereas building a fortress is cost-prohibitive and carries with it lots of unrelated negative aspects. In other words, considering only what’s good for America and placing no weight on any moral responsibility an extremely wealthy nation may have, there are good reasons for foreign aid.

        1. NOVA….Is there a reason not to do this piecemeal? Meaning, why do we need a grand bargain?

          My thought is that incrementalism works, and in fact, is probably what the Founders had in mind. Why not just consider eVerify, then move on to each element? Takes longer, but then we would have more of a consensus, I think, and a more extensive discussion.

          1. Exactly. If someone wants to hold something hostage in exchange for other concessions it means they don’t want it.

      2. Dems oppose E-Verify and have for years.

        So, apparently, do Republicans.

        Why is it America’s job to fix up other countries?

        It’s not, until those other countries’ problems become our own and we want to do something about it. Which is what Trump says he wants to do.

        This isn’t that difficult to understand, once you take the ideological blinders off. A wall at the southern border is not going to meaningfully reduce rates of migration into the United States, as long as countries in Central America are dealing with corruption, out of control criminality, and poor economic prospects – particularly once the “Stay in Mexico” band-aid proves to be the total sham it was always intended to be. So you can either seek ways to accommodate and mitigate that migration, or stop it at its source.

        1. So, just conquer Central America? Got it. I’ll pass on that offer.

          1. So, just create a straw man to burn and walk away proudly? Lame, damikesc.

            1. The argument was before we can secure our borders, we need to fix the reasons why they want to come here/

              That’d only require conquering their country.

              Perhaps treat brown-skinned folks as if they were REALLY adults and able to do shit for themselves?

        2. We can’t even fix the dysfunction and the corruption in our own Puerto Rico; how could we fix it in Mexico and Central America?

          A patrolled barrier won’t stop all the illegal immigrants because the pressure to come here is so great and risk/reward is skewed heavily on the side of reward. It will, however, stop a lot of it, maybe even most of it.

  8. What a waste of words, Let me simplify. Orange Man Bad
    Find Obama judge to stop whatever Orange Man wants to do

    1. Also simple: Conservative thinking is roadkill along the path to American progress. The occasional pause to avoid the casualties doesn’t change the journey much.

      Accept your defeat with dignity. Try to get better. Or continue along the current course. Doesn’t matter much, in the end.

  9. Really with nutjob Ds running for president you’ll get these “judgements “ nonstop
    Oh wait we already do. Well at least we have SCOTUS
    Barely
    Notice how lockstep the 4 lib SCOTUS justices are.

    1. What’s your plan for avoiding enlargement of the Supreme Court by your betters in a couple of years?

      A machine that mass-produces cranky, old, bigoted, selfish, religious, economically inadequate, uneducated, rural southern males?

      A miracle?

      1. 5.56 rounds?

        1. The intellectual and moral ancestors of today’s conservatives tried that in the mid-1800s. Movement conservatives will learn — the hard way, in many cases — that the bigoted and backward do not win in America, at least not over time.

          So carry on, clingers . . . precisely so far and so long as your betters permit. (Your best chance to hang on a bit longer is to be found in our desolate southern and rural stretches, which makes the Conspirators’ selections for residence — Los Angeles, D.C., New York, Chicago — curious and perhaps telling.)

          1. Kirkland….To expand SCOTUS, Congress has to a) repeal a law, and b) pass a new law, and c) make sure it won’t get a veto’ed by a POTUS, and d) have the 2/3rds of members ready to override.

            It is a seriously heavy lift. I don’t see the consensus for that.

      2. Really dude just fuck off

  10. If there is one thing most Conspiracy fans (and Conspirators) can’t abide, it is a libertarian expressing a libertarian position.

    My condolences, Prof. Somin. You really need (and deserve) to find a better set of playmates.

  11. It’s time for the Supreme Court to declare that all motions for injunctions regarding Trump’s executive actions must be heard by them directly. It’s outrageous that Obongo and Klinton judges can hold up Trump’s presidency because “Orange Man Bad.” And hopefully, RBG kicks the bucket soon.

    1. This is the kind of cogent legal analysis I expect from Bernard11. Not nearly enough talk about anal sex to be a real RestoreWesternHegemony post. A RestoreWesternHegemony post without anal sex is like a Rev. Arthur L. Kirkland post without clingers. Still not satisfying, but there’s just a little something missing.

      1. I do agree that SCOTUS desperately needs to scuttle national injunctions from district judges as they seem to trample the entire concept of districts in the first place.

        The rest of his post was useless.

  12. “Construction of a wall along the southern border is a singular “project” under that word’s ordinary meaning. See Merriam Webster’s Dictionary 932 (11th ed. 2003) (defining “project” as “a specific plan or design”)”

    I disagree with Ilya Somin’s analysis of the merits of this argument. If the wall is ever fully constructed, it will be as a result of multiple projects, just as the portions that have already been built were built as different projects. Each of those separate projects will have specific plans and designs and will be built under separate contracts (even if by the same company), which seems much more in keeping with the usage in the statute than treating “project” as the overarching goal.

  13. I wish Robert Heinlein was still around typing in his corporeal form.

  14. I’m a goddamn borders abolitionist. And even I think building a border wall is a constitutional use of executive authority. What exactly do you imagine the rest of America thinks it???

    1. That Congress should fund a wall if a wall is to be built?

  15. “clearer economic interest than having the government build a wall near your land”

    One has an “economic interest” based on something that happens to other people on land you don’t own because it is merely nearby?

    Interesting.

    1. As I remember it, there have been a bunch of lawsuits over the development of wind farms from nearby land owners, based on the idea that the turbines ‘ruin the view’ or such.
      I bet normal development (housing, roads, etc) has been challenged for the same reason.

      I can’t find any references to how successful such claims are, but it certainly doesn’t seem to be a new thing.

Please to post comments

The legal-historical amnesia of using tax exemptions to punish political beliefs

A tool for viewpoint discrimination has an anti-LGBT history, too

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In a televised Democratic presidential forum on LGBT issues last night in Los Angeles, CNN's Don Lemmon asked Beto O'Rourke, "Do you think religious institutions like colleges, churches, charities – should they lose their tax-exempt status if they oppose same-sex marriage?"

"Yes," O'Rourke responded. "There can be no reward, no benefit, no tax break for anyone, or any institution, any organization in America that denies the full human rights and the full civil rights of every single one of us."

Eugene explained well in this 2016 post why the IRS cannot deny tax exemptions solely on the basis of viewpoint, even if you conceive of a tax exemption as a form of subsidy (a "reward") that the government does not have not to give anyone at all, and even if you think the group propounds a hateful or deeply immoral message. The IRS

can't deny exemptions to groups that engage in "hate speech" against blacks, gays, evangelical Christians or Donald Trump supporters, while allowing exemptions to groups that praise blacks, gays, evangelical Christians or Donald Trump supporters. Indeed, the Supreme Court has made this clear: The government may not discriminate against groups based on the viewpoint of their speech. See Rosenberger v. Rector (1994) (discussing Regan v. Taxation With Representation (1983)). As the D.C. Circuit put it in Z Street v. Koskinen (2015) (itself a 501(c)(3) tax exemption case), "in administering the tax code, the IRS may not discriminate on the basis of viewpoint."

Walter Olson expands on why O'Rourke's answer was so objectionable, calling it "illiberal, anti-pluralist, and inflammatory." Scott Shackford piles on, noting the political damage that could be done: "If you care about LGBT rights, you should be glad O'Rourke doesn't have a shot: The backlash against him as a nominee would be massive."

All of these points are well taken. Perhaps most striking to me about the exchange between Lemmon and O'Rourke was not that a candidate would tell an audience what he thought they wanted to hear, but that the audience was so wildly enthusiastic about it.  The reaction was explicable on one level because organized religion has been an extraordinary source of pain to LGBT people. (And of course, it has also been a source of extraordinary comfort to many LGBT people. It giveth and taketh away.)

But on another level, it's an act of forgetfulness. As William Eskridge has written, "the modern regulatory state cut its teeth on gay people." First Amendment rights, especially the cardinal directive that government may not discriminate on the basis of viewpoint, has served both individual LGBT people and the organized LGBT-rights movement very well.  When the government, including the administrative state and courts, failed to live up to those principles, the whole movement was imperiled.

One of the innumerable ways in which the state attempted to discourage gay-rights advocacy in its infancy was through the device of denying corporate charters, school recognition, and all other manner of what O'Rourke might call a "reward, benefit, or tax break . . for anyone, or any institution, or any organization" that violated right and good state-sanctioned principles.

Among these devices was specifically the selective denial of charitable tax exemptions for gay organizations in the 1970s. As Eskridge summarized some of the cases in a 1997 Yale Law Journal article:

Educational and charitable organizations are entitled to exemption from federal income tax, and their contributors are entitled to tax deductions. The IRS had granted tax-exempt status to organizations not having "gay" in their names, most prominently the University Fellowship of Metropolitan Community Churches, and had been willing to give "gay" groups exemptions if they stipulated that they did not "promote" homosexuality or if they accepted homosexuality as a "diseased pathology." Accordingly, the IRS denied tax exempt status to the Gay Community Services Center of Los Angeles in January 1973. In an important turnabout and after a series of meetings with gay representatives, the IRS reversed itself in August of that year, giving exempt status for the first time to an organization with "gay" in its name. Lambda Legal Defense got surprisingly quick approval the next year.

In other words, the IRS made a speech restriction (no "gay") or even compelled speech (accepting homosexuality as a mental illness) a condition of receiving a tax benefit.

The IRS also initially denied exempt status to the Pride Foundation, a pro-gay educational and legal organization.

The IRS found that the Pride Foundation's "efforts 'toward the elimination of unjustified and improper discrimination or treatment, or toward violations of the privacy of adult individuals, are insignificant when compared to the possible detriment to society,"' specifically, "'advancing the unqualified and unrestricted promotion of the alleged normalcy of homosexuality"' which the IRS feared would have the effect "'in the general prevalence of what is still generally regarded as deviant sexual behavior."' As legal authority for its position, the agency cited the Supreme Court's disapproval of "perverted" sexuality in its obscenity opinions and state sodomy laws against homosexual conduct.

Here the federal government doled out exempt status purely on the basis of the viewpoint of the gay-advocacy group: it could not "promote" the idea that homosexuality was normal. Doing so might have socially harmful (and indeed illegal) behavioral consequences. Eskridge recounts how gay-rights attorneys were able to turn the IRS around:

Once such a justification was out in the open, gaylegal representatives were able to ply the IRS with arguments and information undermining its premises. Lawyers for the Fund for Human Dignity in New York worked with the IRS for two years and persuaded the agency to grant exempt status to gay educational groups, without any disclaimer, in a September 1977 ruling.

O'Rourke's rationale for denying exempt status to churches and other groups that oppose same-sex marriage is identical in form to the rationale for denying exempt status to the Pride Foundation in the 1970s. A federal benefit (exempt status) can be denied selectively on the basis of a viewpoint ("promoting" homosexuality then, opposing same-sex marriage now) in the interest of avoiding social harm ("sexual deviancy" then, denial of "full human and civil rights" now).

There's a lot of forgotten or unrecognized history in the LGBT-rights movement.  The movement has been trying rather self-consciously to unearth that history. It's also worth recalling that the government, with its long and ready list of good causes, has not always been a friend.