Monday Open Thread

"С новым годом, с новым счастьем"—to the new year, to the new happiness!

Comments

[Krayt]

2024, where's my damned flying car?

[Mr. Bumble]

FAA won't certify flying cars whose batteries may self ignite?

[Dr. Ed 2]

USCG is dealing with a ship off Alaska with a whole bunch of burning batteries in the hold. I think they've got the fire out now.

[Frank Drackman]

They're called airplanes

[Bwaaah]

Another year, and still, gravity persists.

[Nelson]

Damn that Isaac Newton!

[DaveM]

It’s here, and was granted FAA approval in June 2023. Alas, it still needs approval from the National Highway and Safety Administration. A mere $300,000, too. But you can pre-order at least. Whoo!

https://www.usatoday.com/story/money/cars/2023/06/30/first-flying-car-approved-by-faa-available-for-preorder/70372117007/

[Longtobefree]

Waiting for you to show up with $100,000.

https://en.wikipedia.org/wiki/Jetson_One

[OtisAH]

Flying cars? I’ll consider it a win if we get through 2024 without MAGA deciding indoor plumbing is a communist transsexual plot against freedom.

[Michael Ejercito]

Or sanctuary districts?

[Mr. Bumble]

Exist, but only for 1%ers.

[Michael Ejercito]

Hamas is what you get when Elliott Rodger and Dylann Roof have their own political party.

[Sam Bankman-Fried]

Dylan Roof is worse than Stephen Paddock because Roof is raaaaacist!!! If you are going to be a mass shooter just have the decency to not be a racist.

[Krychek_2]

You are aware that Dylann Roof is a Trump supporter, and Elliott Rodger self identified as alt-right, right? If you're going to try to guilty-by-association the Democrats, try to find people who actually are Democrats.

[Ed Grinberg]

I hate to break it to you, but, while there are undoubtedly some "alt-right" Hamas supporters / admirers, the vast majority of Hamas supporters in the U.S. are Democratic Party voters (and some are actually Democratic elected officials).
It's not the "alt-right" holding daily demonstrations in Democrat-controlled cities and on the campuses of Ivy League colleges. We know what happens when the "alt-right" tries to hold a rally:
https://en.wikipedia.org/wiki/Unite_the_Right_rally

[Krychek_2]

That's a separate issue from the one I was addressing, which was that neither Dylann Roof nor Elliott Rodger can plausibly be called Democrats, so Michael's attempt to use them to taint the Democratic Party is one of his more stupid comments (a title for which there is much competition).

As to your comment, yes, in this country, many (don't know if most) Hamas supporters are Democrats but that doesn't mean that most Democrats are Hamas supporters. Dogs may have four legs but that doesn't mean everything with four legs is a dog.

And it's a little tough to make the claim that the Democratic Party is pro-Hamas when Biden has so thoroughly and completely gotten behind Netanyahu and is so vocally supporting Israel. He might even send them some money if the House Republicans would let it pass.

[Noscitur a sociis]

Who said anything about Democrats?

[Krychek_2]

Are you new here? (That’s a rhetorical question.) I don’t recall Michael ever having a good word for Democrats or a bad word for Republicans.

[Michael Ejercito]

The comment at the start of the thread mentioned only Hamas.

Why would you reflexively think of Democrats when Hamas was mentioned?

[Krychek_2]

Because of your comment about their own political party. If you didn’t mean the Democrats then whom did you mean?

[Michael Ejercito]

I meant Hamas.

[Krychek_2]

That makes no sense. Are you claiming Dylan Roof and Elliott Rodgers are members of Hamas?

[not guilty]

In Donald Trump's appeal to the D.C. Circuit, a group calling itself American Oversight has submitted an amicus curiae brief contending that the Court of Appeals lacks jurisdiction to entertain an interlocutory appeal of Trump's claims. The parties have not briefed this issue, apparently assuming that the "collateral order" exception to the final judgment requirement of 28 U.S.C. § 1291 applies here.

The amicus brief relies heavily upon Midland Asphalt Corp. v. United States, 489 U.S. 794 (1989). There Justice Scalia opined for a unanimous court that an interlocutory order in a criminal case is not immediately appealable under the collateral order doctrine unless the right not to be tried "rests upon an explicit statutory or constitutional guarantee that trial will not occur." Id., at 801.

[Mr. Bumble]

HAPPY FUCKING NEW YEAR TO YOU TOO!

[not guilty]

Thank you very much.

[Mr. Bumble]

"....“rests upon an explicit statutory or constitutional guarantee that trial will not occur.” Id., at 801."
Isn't that Trump's claim?
Also, apologies for the snark above.

[not guilty]

No. Trump points to no statutory or constitutional text conferring a right not to stand trial. https://storage.courtlistener.com/recap/gov.uscourts.cadc.40415/gov.uscourts.cadc.40415.1208582803.0_3.pdf

"There is a 'crucial distinction between a right not to be tried and a right whose remedy requires the dismissal of charges.'" Midland Asphalt Corp. v. United States, 489 U.S. 794, 801 (1989), quoting United States v. Hollywood Motor Car Co., 458 U.S. 263, 269 (1982).

[ReaderY]

But both absolute and qualified immunity ARE rights not to have to stand trial. He is not just raising any old argument for dismissal. He is claiming absolute immunity from prosecution.

In addition to that, he is raising a double jeopardy argument based on the previous impeachment proceedings. Double jeopardy is being TRIED twice for the same offence. A double jeopardy claim is a claim one has a right not to stand trial a second time.

[not guilty]

That analysis founders upon Justice Scalia's recognition in Midland Asphalt Corp. v. United States, 489 U.S. 794, 801 (1989), that the asserted right not to be tried must be "explicit" in statutory or constitutional guarantee. The Court wrote there:

A right not to be tried in the sense relevant to the Cohen [collateral order] exception rests upon an explicit statutory or constitutional guarantee that trial will not occur — as in the Double Jeopardy Clause ("nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb"), see Abney v. United States, [431 U.S. 651 (1977),] or the Speech or Debate Clause ("For any Speech or Debate in either House, [the Senators and Representatives shall not be questioned in any other Place"), see Helstoski v. Meanor, [442 U.S. 500 (1979)].

The word "explicit" there is critical. No constitutional provision or federal statute explicitly recognizes a former president's immunity from criminal prosecution.

In other words, “only when a statutory or constitutional provision itself contains a guarantee that a trial will not occur—may courts of appeals intervene prior to a final judgment to review the defendant’s claimed ‘right not to be tried.’” United States v. Wampler, 624 F.3d 1330, 1336 (10th Cir. 2010) (Gorsuch, J.) (italics in original), citing Midland Asphalt).

The Fifth Amendment Double Jeopardy clause is explicit, but by its own terms it applies only to prosecution "for the same offence." The appealability of a double jeopardy claim pursuant to the collateral order doctrine depends upon the claim being at least “colorable,” and frivolous claims of former jeopardy may be weeded out by summary procedures. Richardson v. United States, 468 U.S. 317, 322 (1984). Donald Trump’s D.C. Circuit brief presents no colorable claim that incitement of insurrection — the sole claim upon which Trump was impeached — is the “same offense” as any of the crimes charged in the D.C. indictment. 18 U.S.C. §§ 241, 371, 1512(c)(2) and 1512(k). https://storage.courtlistener.com/recap/gov.uscourts.cadc.40415/gov.uscourts.cadc.40415.1208582803.0_3.pdf

[Mr. Bumble]

Since when did you put so much stock in anything written by Scalia?

[not guilty]

When he writes an opinion of the Court (especially that of a unanimous Court). As Justice Robert Jackson wrote of his SCOTUS brethren, "We are not final because we are infallible, but we are infallible only because we are final." Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring in result).

[Zarniwoop]

Mr Bumble asks:

Since when did you put so much stock in anything written by Scalia?

And not guilty replies:

When he writes an opinion of the Court (especially that of a unanimous Court). As Justice Robert Jackson wrote of his SCOTUS brethren, “We are not final because we are infallible, but we are infallible only because we are final.” Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring in result).

Looks like someone is bringing high school civics "legal questions" to a constitutional law fight.

[Mr. Bumble]

No "legal question" was asked and this site and these threads will never solve a "constitutional law fight".

[Davy C]

Then how do you explain qualified immunity, which is not based on any constitutional or statutory language? Cops can appeal denials of qualified immunity. If the courts can just make up a doctrine saying they can, they can just as easily make one up saying it applies here too.

[not guilty]

The Court of Appeals here cannot create a new exception to the rule that the collateral order exception to the final judgment rule with the utmost strictness in criminal cases. Flanagan v. United States, 465 U.S. 259, 265 (1984). SCOTUS can do so if it chooses, but we are not there yet.

Congress has limited the jurisdiction of the Courts of Appeals to "final decisions of the district courts." 28 U.S.C. § 1291. The Supreme Court has long held that the policy of Congress embodied in this statute is inimical to piecemeal appellate review of trial court decisions which do not terminate the litigation, and that this policy is at its strongest in the field of criminal law. United States v. Hollywood Motor Car Co., 458 U.S. 263, 266 (1982).

[ReaderY]

I think a difficulty with the amicus brief position is that both Trump’s claim of absolute immunity and his double jeopardy claim sure look an awful lot like a claim of “an explicit constitutional or statutory guarantee that trial will not occur.”

[Voize]

Where do you find an explicit grant of Presidential immunity?

[Brett Bellmore]

There is none. The authors of the Constitution gave very limited immunity to members of Congress, explicitly. The notion that they gave much greater immunity to Presidents by mere implication is utterly absurd.

DOJ has a policy of not indicting sitting Presidents, but that's not immunity, it's just DOJ policy.

[not guilty]

.

I think a difficulty with the amicus brief position is that both Trump’s claim of absolute immunity and his double jeopardy claim sure look an awful lot like a claim of “an explicit constitutional or statutory guarantee that trial will not occur.”

Au contraire. Please cite the constitutional provision or federal statute that explicitly recognizes a past president's immunity from criminal prosecution after leaving office, and quote the applicable language.

Donald Trump's D.C. Circuit brief conspicuously does not do so. https://storage.courtlistener.com/recap/gov.uscourts.cadc.40415/gov.uscourts.cadc.40415.1208582803.0_3.pdf

[not guilty]

The Court of Appeals panel has sua sponte issued an order stating:

It is ORDERED, on the court’s own motion, that counsel be prepared to address at oral argument on January 9, 2024, any inquiries by the Court regarding discrete issues raised in the briefs filed by amici curiae.

That suggests to me that the judges on the panel may have some concerns about whether the Court has jurisdiction to entertain this interlocutory appeal, even though neither party addressed the issue in the principal briefs.

[Martinned]

A subset of the divisors of 2024 that sums up to 2024 is: 1, 2, 4, 22, 23, 44, 46, 88, 92, 184, 506, and 1012. Adding these divisors together equals 2024, demonstrating that it is a pseudoperfect number.

[Dan Schiavetta]

!
Are there are not so pseudo perfect numbers?

[Michael P]

Yes, true perfect numbers (the first few are 6, 28 and 496) are equal to the sum of all their factors, other than the number itself. Wikipedia has a lot more (mathematically and perhaps linguistically interesting) detail: for example, all even perfect numbers are also "pernicious" and "practical" numbers, and we don't know whether there are any odd perfect numbers.

[Dan Schiavetta]

thanks

[Drewski]

Is including 1 but not the number itself from the factors mathematically useful, or is it just an arbitrary rule?

[Michael P]

The sum excluding 1 is how quasiperfect numbers are defined, but we don't know if any exist.

The sum starting from 1 is called the aliquot sum. It is also used for a number of other mathematical definitions. Most of those definitions are not inherently useful for other purposes, but they would tend to fall apart if they omitted 1.

[Drewski]

Thanks - that's exactly what I wanted to know. Interesting stuff.

[Nelson]

Agreed. Math is so amazing. It's the underpinning of the universe. If we could achieve total understanding of math, we would understand everything about the universe.

[John F. Carr]

Liberal politicians in Massachusetts are complaining that vocational schools are too selective. They sent a letter to the governor asking for a return to a lottery system:

We write today to ask you to direct the Board of Elementary and Secondary Education (BESE) to prohibit selective criteria that discriminates against disadvantaged 8th graders and inhibits their social and economic mobility ... We believe children who grow up in poverty in Massachusetts ... deserve the same opportunity to attend a vocational school

When I was young vocational schools were thought of as places for kids too dumb to go to college.

Also when I was young, "criteria" was a plural noun.

Boston switched to a lottery system for selection into METCO, a racial balancing program that takes black kids from Boston and buses them to better suburbal schools. (I don't know if they have to be black. I have never seen a white METCO student.) Under the old system you would take your newborn to the registration office to get him or her on a waiting list for a good elementary school.

[Sam Bankman-Fried]

Kamala Harris was that little Black girl with two PhD student parents that took a seat at a good elementary school from a little Black girl from a working class family.

[Dan Schiavetta]

I grew up in a system where you went to one school, period. My school had a large contingent of BOCES students, mostly boys who learned auto mechanics. They had the hottest girlfriends.

[ObviouslyNotSpam]

And, more importantly, the hottest cars.

[Dr. Ed 2]

Improved Voke schools is the one remaining gem of the Ed Reform law passed 30 years ago. What they did was to say that we didn't want delinquents in these schools -- and managed to attract a lot of college-bound kids in the process.

Two reasons -- first, if you know a trade, you can work your way through school and have something to fall back on after graduation instead of working at Starbucks. Second, many of the academic fields have a strong trade aspect to them now -- it's not the bifurcated world it was in the 1970s.

So what they did was base admissions on (a) middle school grades, (b) middle school attendance, and (c) middle school discipline records. Grades may or may not be fair, but the latter two very much are -- employers expect employees to show up to work and behave themselves there. The Vokes have a lot of expensive and dangerous equipment and they need students who will follow rules and not screw around.

For example an Oxygen/Acetylene torch will EXPLODE if you let the Acetylene pressure get to high -- the whole tank will explode. Here is just an explosion of leaking Acetylene: https://www.youtube.com/watch?v=N-Qp2Lvrliw You don't want kids screwing around with these things, or saws, or, well, lots of stuff....

So the Brown & Black kids got excluded -- well if the Brown & Black kids behaved themselves in middle school, they wouldn't be.

See: https://www.youtube.com/watch?v=N-Qp2Lvrliw

That's not an incentive to want to have RESPONSIBLE students?

[David Nieporent]

.

deserve the same opportunity to attend a vocational school

But of course that's not what they mean; these kids do have the same opportunity.

[Stephen Lathrop]

Still insisting on legally enforced meritocracy, Nieporent? What Constitutional provision empowers that? Who does the Constitution say decides this student has merit, and that one doesn't?

[David Nieporent]

The Constitution says that race is an impermissible criterion. It doesn't say anything about merit, per se. If schools want to instead take people based on (e.g.) geographic location (most do!) or random chance, or ability to pay, they are free to do so, without running afoul of the constitution. Still not smart enough to understand this distinction?

[Stephen Lathrop]

Definitely not smart enough to understand why you keep offering it as a distinction, when what you long for is legal power to impose meritocracy.

[David Nieporent]

How about if I decide what I "long for"?

[John F. Carr]

The Texas Tribune recently wrote about the state Supreme Court's suggestion that the Texas Medical Board create guidelines for doctors deciding whether an abortion is legal.

https://www.texastribune.org/2023/12/21/texas-medical-board-abortion/

The subheadline captures the mood: "Some doctors say that wouldn’t be enough reassurance." The basic problem is doctors think a nonviable pregnancy is grounds for an abortion, maybe a high risk pregnancy too, and the law says otherwise.

The Medical Board doesn't want to provide guidance. Officially it doesn't want to act while litigation is pending. I don't buy that excuse. It's like Trump saying he can't release tax documents because of an audit.

[Sam Bankman-Fried]

Every state should pass “Bella’s Law” named after Rick Santorum’s daughter…it allows every mother to abort a fetus that’s as fucked up as Bella Santorum.

[Frank Drackman]

Not kind or gentle, but fucked up, to bad your mom didn't abort you.

[Sam Bankman-Fried]

As long as you’re pro-choice then you’re cool with me!

[bernard11]

Of course it wouldn't be enough reassurance.

Does anyone think Ken Paxton cares what the Texas Medical Board thinks?

These anti-abortion laws enable AG's to terrorize pregnant women in the interest of their own careers.

[John F. Carr]

Local prosecutors are the ones to watch out for. There is a lawsuit against Austin area prosecutors who might prosecute abortion tourism. Ken Paxton got himself out of that lawsuit by disclaiming any authority to prosecute.

Where can one get a surgical abortion in Texas? The Travis County District Attorney (Austin) has promised not to prosecute abortion cases. I have not checked Houston or Dallas/Fort Worth.

[Sam Bankman-Fried]

“Stop the ste”

Those were the last words of Ashtray Babbitt that will inspire a new generation of patriots to take back their country! I wonder what she meant by “ste”???

[Frank Drackman]

The fuckers who murdered Jews at Munich were smug assholes too.

[Sam Bankman-Fried]

I hope one day we figure out what “ste” means! 😉

[Sam Bankman-Fried]

Btw, don’t feel bad for her badass Marine husband…he has a little hottie as a spare wife.

[Sam Bankman-Fried]

On this day in 1977 Senator Dominici drank too much champagne and raw dogged Senator Laxalt’s daughter in his Senate office…and 9 months later a little baby neocon was born!!! A New Year’s miracle!!!

[Moderation4ever]

Does government spending pay off, well a new paper by the CBO suggests that Medicaid funds spent on children results in those children growing up to be higher earners and so paying more taxes back into the government.

https://www.cbo.gov/system/files/2023-10/59231-Medicaid.pdf

And if you don't like government papers here one from an economic journal. That speaks similarly.

https://academic.oup.com/restud/article/87/2/792/5538992

I don't advocate for more or less government spending, but rather effective government spending. Government wastes a lot of money, but spending on healthy kids and educating them is a smart investment.

[Michael P]

A -0.42 ROI assuming a 3% discount rate would be a crappy investment: it loses almost half your money. Fortunately for Medicaid, it’s not meant to be a good fiscal investment.

[bernard11]

That's only the extra taxes the government collects.

It does not include broader social benefits.

[Bwaaah]

Like growing up believing your life would get better if the government would take more money from others and spend it on you?

Is that belief "socially beneficial"?

[Sarcastr0]

Do you think any of the posters speaking in favor of Medicaid on here are on it?

[bernard11]

I don't know WTF you are talking about.

Personally, I think having healthier, better-educated, more prosperous people is a big plus, over and above any extra taxes they pay.

You don't give a shit? OK.

[Dr. Ed 2]

"Medicaid funds spent on children results in those children growing up to be higher earners"

Two problems with that -- first it presumes that all eligible children benefit equally (they don't), and second it doesn't balance against children in other income cohort groups.

[Nelson]

"first it presumes that all eligible children benefit equally"

What are you talking about?

"second it doesn’t balance against children in other income cohort groups"

Same question.

[bernard11]

He has no idea what he's talking about.

He apparently doesn't get the concept of an average, and thinks the total amount of income is fixed, so one person can only gain at another's expense.

At least that's what I make of that nonsense.

[Nelson]

Is there such a thing as a "zero-sum fallacy"? If not, there should be. There are so many things that conservatives of all stripes believe are zero-sum, that clearly aren't, that it has to rise to the level of a fallacy.

[Ed Grinberg]

Is the purpose of government to maximize its tax revenue? Hmmm...
Here's a hint for you (source):

[Man] seeks out and is willing to join in society with others who are already united, or have a mind to unite for the mutual preservation of their lives, liberties and estates.

Here're more hints from people who understood the proper purpose of government:
"The sum of good government," wrote Thomas Jefferson, is not taking "from the mouth of labor the bread it has earned." For government to advantage some at others' expense, wrote he, "is to violate arbitrarily the first principle of association."
From a 1798 U.S. Supreme Court decision:

An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority....A few instances will suffice to explain what I mean....[A] law that takes property from A and gives it to B.

Some leftist wrote in Wikipedia:

Public services such as education, health care, law enforcement, and public transportation are considered essential state functions.

Of these, only law enforcement is a function that the private sector could not take over (this making it the only "essential" government function). The rest are all better performed by the private sector. True, leaving it up to the private sector, while increasing the quality, will leave out those unable to pay. In my opinion, such a tradeoff is acceptable. It is not right that I should be made to educate, house, keep in good health, and transport my neighbor and his children.

[Moderation4ever]

First, I want to say the usual response to challenging tax cuts is that I am told the cut raises revenue. So we should also consider social safety nets that raise revenue.

Government function has always involved more than you are trying to say. Early governments provided calendars to help in planting crops, developed roads and water way for the transport of good. As time passed more functions were added, some good some unnecessary, but still added. So trying to tie government to its earliest functions is absurd.

[Nelson]

"I am told the cut raises revenue"

That is only one subset of those advocating for tax cuts. They are the supply-side, Laffer curve adherents and they refuse to accept that every time it's tried, it fails miserably. If you want to know whether an economic policy is good or bad, see what Grover Norquist thinks. That will be the bad idea.

There are plenty of people (myself included) who believe that tax cuts can stimulate the economy, but they have to be on the bottom, not the top. So, for example, tax breaks for small businesses will be hugely stimulative as will cuts to the working poor and middle class.

Combined with elimination of tax breaks for things like unearned income and caps on FICA taxes, plus raising the age (and means testing) for Social Security, balancing the budget would become a realistic possibility.

Balancing the budget (which can't be achieved through tax cuts for the wealthy) is the most pressing fiscal crisis facing the country.

[Brett Bellmore]

"They are the supply-side, Laffer curve adherents and they refuse to accept that every time it’s tried, it fails miserably."

Actually, historically speaking, federal revenues DID increase after the Reagan tax cuts. I suppose you can argue that they would have gone up anyway, but the tax cuts certainly didn't cause a fall in revenue. So, how did it fail miserably?

Because deficits exploded? But that wasn't due to the tax cut, as revenues DID go up. It was due to spending going up even more.

But that was hardly Laffer's fault...

[Michael P]

Joe Biden is a Democrat who left Pennsylvania. Lots of other PA Dems are leaving Joe Biden instead.

https://www.foxnews.com/politics/democrats-bidens-home-state-leaving-republican-party-droves-voter-data-shows

[Michael P]

Once again, charter schools seem to do very well, especially for Black and Hispanic children: https://nypost.com/2023/12/24/metro/nyc-charter-schools-lead-pack-on-state-exams/

[Ed Grinberg]

So, naturally, BLM folks want to shut them down (see link below). Par for the course...
http://www.theatlantic.com/education/archive/2016/08/the-ambitious-education-plan-of-the-black-lives-matter-movement/494711/

[Nelson]

Wait, selective enrollment schools have better students? How weird!

[David Nieporent]

Charter schools are not private schools; they are not "selective enrollment." They have to take exactly the same students as any other public school.

[Stephen Lathrop]

Nieporent, as a practical matter, you are misinformed. The critique is that charter schools enforce meritocracy (uh oh, there it is again) in subtle ways which add up to discriminatory enrollment or retention policies, which then show up in test results.

The whole federal charter system has become a gameable policy jackpot for would-be educators who want to pick and choose students. They find ways to avoid students they think of as more expensive, or burdensome, or simply in need of services those educators can avoid providing. You have to get into the weeds to know what actually happens in each state and district.

The picture at that level is usually not a pretty one. For instance, federal policy allows states to choose whether to impose full budgetary responsibility for educating disabled students on charter school budgets, or instead to retain it in the non-charter school budget. Then everyone gets to go around acting as if that creates perfect equality, intoning, "Charter schools are public schools."

Well, maybe, somewhat. But here is one thing which has not happened. There has not been a stampede of parents with disabled kids to get them out of often-nearly-useless traditional education special needs programs, and put those kids instead into charter schools which offer better special needs programs. If there really were equal opportunity in both kinds of programs, then normal distribution ought to create conspicuous opportunities in at least some charter schools for better special needs education. I doubt you can find much of that anywhere.

I know less about practical policy-evading discrimination against under-prepared and disadvantaged minority students. But if I were required to place bets, I would bet cynically, and I think you would too.

To figure out what actually happens, you have to look at everything, right down to the nuts and bolts of how local school bus programs are actually funded and managed—which can be and often is done entirely outside the school systems, by private contractors.* Those are free to respond to public school inputs by saying, "Okay, we can change that, but that little bit extra will force us to buy more buses, enlarge maintenance capacity, and put on an extra shift of drivers, which will cost you plenty. Or else we can do it with what we've got, by working our drivers harder and paying them more—which the contract says you will owe for—and you will have to lengthen the school day, and run that by the teachers' union."

On stuff like that, there is no such thing as a national overview. It is locally-controlled chaos, with obvious implications for what can happen with charter school enrollment.

When people can get what they want by gaming loosely regulated systems, a lot of gaming happens. People with less power and fewer advantages tend to lose those games.

*An old friend of mine and his wife—both now retired—made themselves rich by running school bus service for one tiny local school district. They did it by fantastically energetic personal performance, which delivered less expensive, more efficient, and safer service than the district could get in any other way. I know what I am talking about from them.

[David Nieporent]

Look, it's a massive wall of text from Lathrop that says nothing because he knows nothing. I don't know what a "federal charter system" is or what it has to do with NYC charter schools, or why you think school buses are even a significant factor for NYC.

Nothing in that screed actually changes the fact that charter schools are not private schools; they are not “selective enrollment.” They have to take exactly the same students as any other public school.

[Absaroka]

From the Wa.gov charter school FAQ page:

"Charter public schools are a local choice for many parents seeking a tuition-free, open-to-all public school option for their student. Unlike a private school, charter public schools are nonprofits and there is no cost for attending a charter public school. There is no entrance exam in order to attend. ...charter public schools are subject to rigorous oversight by a multi-pronged ecosystem that includes the Washington State Charter School Commission, the Office of the Superintendent of Public Instruction, and the State Auditor’s Office."

[Nelson]

"Charter schools are not private schools; they are not “selective enrollment.”"

I don't know if you meant this for me, but "selective enrollment" is exactly what I said. The "selective" part leads to better students at charter schools, since they don't have to take every kid. That's the point of charter (and magnet, etc.) schools.

FWIW, I'm not necessarily opposed to selective enrollment public schools assuming they aren't allowed to take the best kids and the most resources.

My personal belief is that the teachers at selective enrollment schools should be paid less (or, if you prefer, the teachers at the bottom-level schools should be paid more) and the per-student money for the school should be less, since they end up with fewer resource-demanding issues than the bottom-level schools.

I'm also a fan of vo-tech schools with qualification-focused instruction to get the students further along the path to making a living.

[Nelson]

Sorry, I missed the "not" in your post. In most cases they are selective enrollment for a portion of their student body. It allows them to have a student body whose baseline is above that of a normal neighborhood school. Almost every charter school I've ever known has a system like that.

[David Nieporent]

I shouldn't/can't generalize about the entire United States, but the linked article was about NYC charter schools, and NYC charter schools are not selective at all. If they have more applicants than spots, then they must choose students by lottery. (IIRC there's an exception if one has a sibling already in the school.)

[Michael P]

Speak truth to power, get suspended as NAACP state president and be forced to issue an apology.

https://www.nprillinois.org/springfield-il/2023-12-13/haley-faces-criticism-for-migrant-comments

[bernard11]

Here's what she said:

these immigrants who come over here, they’ve been raping people, they’ve been breaking into homes, they’re like savages as well. They don’t speak the language and they look at us like we’re crazy,”

Truth to power? Yeah. Right.

[Dr. Ed 2]

Well, is it true?

Sadly, yes...

[grb]

Dr. Ed 2 : "Well, is it true?"

It depends on how desperate you are to answer "yes". In your case, I bet you're pathetically frantic to do so. For you, any immigrant committing any crime will justify that rabid rhetoric. But the rest of us (being normal people) are well aware the crime statistics of immigrant run much, much lower than native-born residents of this country. With illegal immigrants it's almost half; with legal immigrants it approaches one-third.

So there's you answer, Ed. Why not surprise everyone by accepting it?

"The results are similar to our other work on illegal immigration and crime in Texas. In 2018, the illegal immigrant criminal conviction rate was 782 per 100,000 illegal immigrants, 535 per 100,000 legal immigrants, and 1,422 per 100,000 native‐​born Americans. The illegal immigrant criminal conviction rate was 45 percent below that of native‐​born Americans in Texas. The general pattern of native‐​born Americans having the highest criminal conviction rates followed by illegal immigrants and then with legal immigrants having the lowest holds for all of other specific types of crimes such as violent crimes, property crimes, homicide, and sex crimes"

https://www.cato.org/blog/new-research-illegal-immigration-crime-0

[Nelson]

"Well, is it true?"

No.

This has been another episode of "simple answers to stupid questions: bigot edition".

[Commenter_XY]

VC Conspirators...Happy New Year!

Every year, billions engage in an annual ritual...what resolution do I have for the next year? What do I want to do differently? What would I like to change?

I am mulling over a few possibilities for myself and I wonder what kinds of resolutions do VC Conspirators make? Can you share your NY's resolution, or ones you have heard about that were memorable?

What am I talking about? Here is an example. Post pandemic, Commenter_XY tends to avoid large crowds of people. Seriously, I do. No more sporting events, movie theaters. Very infrequent in-person shul visits (livestream mostly); I go to shivas, funeral services, not so much shabbat services. Do a lot of online shopping, go shopping in off hours. After Covid, I took many extra precautions in many areas of my life and I wonder if it is now time to relax those precautions, somewhat. Not just physical proximity to people, but more social interactions also. There is a gap, a sense of disconnectedness that I would like to lessen in the new year. The pandemic has been very isolating; how to ameliorate that?

So Conspirators, what resolutions have you made?
What new years resolutions have you heard (in your life) that were memorable to you? Any funny ones? Meaningful ones?

[Dan Schiavetta]

stop drinking

I feel better when I do that, starting with the second day

the reason I drink is to be able to sleep, my prospects being so miserable at the moment (I recently published a book on Amazon that's sold exactly 5 copies, and you know about our losing our house soon)

let's see if warm milk works instead

[hobie]

Same: having to drink to sleep. This year I took up trying a pot brownie cube each night. Yeah, you get a pot buzz which, to me, is too intense. But once in bed, it works like magic.

[Brett Bellmore]

Right now I'm using NyQuil to sleep, but that's only because I've got a bad cold... Without cold medication, my sinuses hurt too much for sleep, not to mention continually getting up to blow my nose.

We were going to have roast boneless leg of lamb yesterday, but I wasn't up to cooking, so we just had charcuterie in front of the fireplace. Port wine cheese spread on apple slices is pretty good even if you're stuffed up.

Well, lamb today, with an extra day of marinating in a rosemary/garlic rub. I'm not quite as sick today.

[hobie]

That sounds like good livin', brother (apart from the sinuses)

[Brett Bellmore]

Living high on the hog for the holidays. I've warned my family they'll be eating a lot of tuna casserole in the coming months to make up for it.

[iowantwo]

Alcohol prevents REM sleep. Its your problem.
You are not an alcoholic, But it is on point. Every alcoholic drinks to make problems go away, but the problems get worse. Thats why they drink more.

[bernard11]

Alcohol prevents REM sleep. Its your problem.

Exactly right.

[John F. Carr]

Melatonin is in fashion.

[Commenter_XY]

Valerian helps, also.

[Mr. Bumble]

Read Ilya Somin posts. Should put you in a coma.

[John F. Carr]

Screen time before bedtime is said to be bad for sleep.

[Longtobefree]

In 1984 I resolved to never again make a New Year's Resolution.
Still keeping that one - - - - - - - --

[Kazinski]

I don't really do resolutions, since if you have to wait for one day of the year to make a change then either it really isn't that important, or you are procrastinating on something you should have started doing a while ago.

But on the subject of shopping and going out, I've gotten in the habit of trying to limit my trips to go out shopping to once a week. I've gotten in the habit because during the summers I live a couple of miles off payment on a fairly rough road off the grid, with at least a 30 mile drive to the closest supermarket.

Now that I'm in my winter house in the suburbs, I've been trying to continue the habit. If I want to go out, I've still got miles of hiking trails in the desert right out my door, and even though the nearest supermarket is only 2 miles away and the Costco is 5 miles, I find I have little patience for the aggravation of traffic and congestion both on the streets and in the supermarket aisles.

[bernard11]

I take the opposite approach.

I live in an urban area with grocery stores and lots of specialty food places within a 1-2 mile radius, so I go often - too often, really - but walk. Unfortunately the value of the exercise is somewhat reduced by the stuff I bring home.

[Dr. Ed 2]

Shenna Bellows and her ilk have gone too far and it's gonna backfire on them. There's already a move to impeach her, and her response is that "[i]t’s absurd and I don’t think it’s lawful under Maine’s constitution to bring impeachment of an elected official for doing their job and upholding the constitution and the rule of law."

The little Valley Girl (that's *not* a Maine accent) doesn't realize that it's she who is being unlawful. There's a backlash coming.

[John F. Carr]

She already got swatted. I think it won't go much farther than that. To lose her job she needs Democrats angry at her. Instead she has Democrats disapproving of her. Or one important Democrat at least. That's all the news that escaped the state.

[Dr. Ed 2]

They really don't have to impeach her -- if the GOP gets a majority in the legislature in 2024, she's gone. Maine's somewhat unique in that the constitutional officers (AG, SoS, Auditor and someone else) are selected by the legislature meeting in a *secret* session.

There's already talk of this costing Golden his seat in Congress, and notice how he's condemning what she did.

Swatting is par for the course -- Susan Collins got fake anthrax at her house a while back -- shut down half of Bangor until they figured out it was harmless. Sadly, that's the modern reality.

But I think that the progressive dems have gone too far, that people are going to start asking real questions that the Delta Charlie can't answer. My guess is that she's going to get some gig in DC.

[Kazinski]

There is no excuse for swatting and terroristic threats whether directed at the left or the right.

Marjorie Taylor Greene has been swatted 8 times, I wonder at this point what they think they are accomplishing? The cops call her up tell her she's been swatted, again, then come out have a cup of coffee and say hi, then go back to the station.

[BrotherMovesOn]

On the first day of the New Year Dr. Ed arose before dawn to soak the hake in milk. Walking out to the porch, he lit his pipe and looked southeast toward the the Isle of Shoals. The horizon was crimson fire.
He spotted a tanker moving slowly in the distance. Sailors take warning. Ed thought of the gale of '98 and the S. S. Portland. He stroked his beard and sighed. This is not going to end well, Ed thought.
He took a long draw off his hip flask.
No. This is not going to end well.

[Alpheus W Drinkwater]

Classic!

[Nelson]

"There’s a backlash coming."

I applaud you for dialing back the hyperbole a little. In the past you would have claimed there's a civil war coming.

Unless you think "backlash" is synonymous with "civil war"?

[Alpheus W Drinkwater]

Her decision may be correct, or it may be incorrect. But her job as defined by Maine state law is to determine the eligibility of candidates to appear on the ballot. It's literally her job. She had a hearing, she considered the question, and made a determination.

[Ed Grinberg]

https://en.wikipedia.org/wiki/2023_United_States_Congress_hearing_on_antisemitism
A lot of people don't understand (or pretend not to understand) why it's a problem when three presidents of universities known for suppressing "politically incorrect" speech by professors / students suddenly become staunch defenders of freedom of speech / academic freedom when it comes to anti-Israeli / anti-Jewish speech.
This succinctly explains the problem:
"[W]hen you censor any speech, you then make yourself responsible for whatever speech you do allow."
source: https://lawliberty.org/dissolve-the-universities/

[Ed Grinberg]

https://www.breitbart.com/tech/2023/12/31/censorship-ramping-facebook-suspends-libs-tiktok-going-against-community-standards/

[Armchair]

2024...the year deficits finally start mattering?

So, there's some interesting data to consider.

1. Generally speaking, US Federal Government Revenues are between 16% and 19% of GDP in the modern era (1970 to today). You get a few years above it (2000) in good economic times and a few years below it (2008) in bad economic times, but it's a pretty good general range, typically right around 17%, despite how tax rates have changed. And generally returning to around that mean.

2. US Federal Government Spending on the other hand has typically been around 18 - 20% of GDP during that time frame. A few years in excess by a little (2009) a few years below it (2000), but a good general range. And generally returning to about that mean.

3. But COVID...broke spending. Entirely expected (spiking to ~30%) of GDP in 2020. But then...it only receded to about 24-25% of GDP. And it's forecast to stay there. Staying there is the problem. Now, instead of deficits at about 2% of GDP (which could be grown out of), deficits are at 5%-6% of GDP...which can't be grown out of.

4. Again...it's the spending growth which is the issue. Revenues have remained at the same % of GDP. This may be a large issue in the future.

[John F. Carr]

We need a Javier Milei.

[Commenter_XY]

Truly, could you imagine?

Milei-like US winner: Oh, we are going to eliminate the Education department, the Commerce department, the Labor department, and so on...and then streamline the crap out of what remains. Oh yeah, we just fired 10% of the federal workforce. BTW Congress, could you please approve funding?

It would be total bedlam and chaos. To fix the problems we have, it might take someone like Milei to take a chain saw to the administrative state in DC.

[SimonP]

This kind of magical thinking is so juvenile.

If you don't like the administrative state, the place to start is with the law. Simply firing entire departments doesn't make the laws they're there to enforce go away. The legal obligations remain, except now no one knows what they require, until the courts get involved... which they'll do only in certain situations.

Take the Labor Department - who settles labor disputes? No one's picking up the phone. Every employment discrimination complaint is now a lawsuit. Is your employer stealing from your 401(k)? You'll have to sue to get your money. Trying to decide whether your business is OSHA-compliant? Good luck.

It's not wrong to try to streamline the federal government and minimize the burden of compliance with federal laws and regulations. Nor is it obviously problematic to try to repeal or reform laws that aren't working or aren't working as intended. But it's sophomoric to call for the elimination of federal agencies just because they're some kind of scapegoat for laws you don't have the political support to repeal outright.

Market participants might not be crazy about compliance, but the agencies provide guidance and cover so that they can be fairly confident that, if they comply, they're not more entangled in disputes and litigation than they already are. You take away the agencies, you'll introduce a generation of litigation where everything the agencies used to handle now gets decided by the courts. How is that better?

[mulched]

They're all working so hard, guys! Just stop picking on them, okay?

[Commenter_XY]

Your satire meter needs calibration.

[bernard11]

To fix the problems we have, it might take someone like Milei to take a chain saw to the administrative state in DC.

What problems are those, and how would Milei fix them?

[SimonP]

You might wait a few months to see what happens in Argentina before hitching your cart to this horse.

Not even Reason's hagiographic coverage can avoid mentioning that his "reform" proposal includes massively expanding the power of the presidency, making it easier to secure re-election, and empowering him to sell off large parts of the state to the highest bidder. If Biden asked for even half of this authority, you'd all be screaming your heads off.

Argentina's definitely in a mess, and I don't know how best to fix it, but maybe let's give it a week before we declare "mission accomplished."

[Sam Bankman-Fried]

He’s wrong about revenue as a % of GDP—the Bush/Cheney economy featured historically low levels of revenue as a % of GDP. That’s what’s so dumb about people that say Gingrich deserves credit for the balanced budget—the budget was balanced with very high tax revenue along with slashing defense spending…so no Republican would ever balance the budget by doing those two things.

[bernard11]

That’s what’s so dumb about people that say Gingrich deserves credit for the balanced budget..

The dumbest thing about that is that Gingrich strongly opposed the Clinton tax increases that contributed to the balance. In fact, he and his gang repeatedly predicted economic catastrophe would result.

Why anyone gives that loathsome man credit for anything but being a champion asshole is beyond me.

[Kazinski]

Not a few months, a few years at least.

You don't spend 50 years digging a hole and fill it in and landscape it nicely in a few months.

[Mr. Bumble]

Which is the problem Trump faced.

[Nige]

But only he could do it.

[Nelson]

And he spent 4 years not doing anything to fix it. Because the messy, unsexy things like rational fiscal policy were the things he didn't care about.

[bernard11]

What's he going to accomplish?

And by the way, the Argentina central bank has interest rates at 133% to stem the flight to dollars.

[Josh R]

Relative to 2015, the increase is entirely in mandatory outlays including over 1.5%-points (of GDP) in interest payments on the debt. Social Security and Medicare add a total of about 1%-point (but SS and Medicare Part A cannot contribute to the debt by law). Medicaid accounts for another 0.5%-points. The remaining 1.5%-points come from various items such as refundable tax credits counted as spending (e.g, the child tax credit), veterans benefits and food and other assistance programs.

[Armchair]

Regardless of "where" the spending went, the issue is that is is much increased, and poses a significant problem.

[Sarcastr0]

You need to establish how this is a current problem. The US is not a person with a credit card account.

Sovereign debt is eventually inflationary, but it's not the driver right now. Other countries have a higher debt-to-GDP ratio, and they don't have the luxury of being the reserve currency.

I'm not saying go MMT and ignore the balance sheet, I'm saying you need to do more work than just 'number go up.'

[Josh R]

Or perhaps the spending is necessary? What are you going to cut?

[Armchair]

We would need to ask, why is it suddenly necessary "now" since it hasn't been necessary in the last 50 years.

[Josh R]

An aging population.

[Nelson]

That's why the reforms to SS and Medicare need to happen right away. Instead of limiting Biden's plan to allow the government to negotiate for drugs to 10 drugs (which is what the Rs demanded), make it all drugs. We're paying MSRP for drugs when we're the largest-volume customer. No retail establishment would accept that from a wholesaler, but we do. And yes. I mean we. It's our tax dollars that are paying insanely inflated prices for medications. Not a few points higher, either. Hundreds (even thousands) of percentage points higher. Rs need to stop it now and allow negotiation for all drugs. And I say that as someone who has made crazy money on Pfizer. If you want to cut costs, cut costs. Don't sabotage it to try to keep Biden from looking good.

Raise the age of Msdicare 1 year every 2 years for 10 years. Those savings are insane.

Remove to income cap for FICA and include unearned income so it's not just the lower-middle class and working poor who are paying the bill.

We all know SS and Medicare are the biggest controllable factor in the deficit. Kicking the can down the road and hoping the Baby Boomers all die before they bankrupt us all isn't neither a realistic, nor a good, idea.

[Armchair]

Doesn't fit the data.

The population has been aging at a reasonably consistent rate over the last 5 decades. ~ 2 years per decade (for the median age of the US population. But only in the last couple years does the "aging" suddenly require a massive hike in spending? In a decade which the average aging has slowed?

[Sam Bankman-Fried]

Actually after the Bush Tax Cuts it was below 16% during a growing economy which is an anomaly. And net outlays as a % of GDP was falling under Clinton and Bush reversed that trend. The Bush Tax Cuts were huge and impactful in a negative way.

[Armchair]

And then it promptly recovered to the normal range in the middle of the Bush administration.

[Sam Bankman-Fried]

Nope, we had a lost decade from a GDP growth and tax revenue perspective. We never had a decade in which tax revenue didn’t increase over a 10 year period like during Bush/Cheney.

[Armchair]

Federal revenue dropped after the Bush tax cuts were passed, in 2003 (for the second cut), down to 15.56% of GDP in 2003. In 2005, that was back to 16.5% of GDP. By 2006, it was at 17.4% of GDP

[Sam Bankman-Fried]

Every decade we doubled revenue except the Bush/Cheney decade in which we ended up with $2 trillion at the beginning and end…it was like clockwork except 2000-10…so 1990 we collected $1 trillion and by 2000 we collected $2 trillion. We hit $2.57 trillion way behind schedule under Bush and then it collapsed. So upper middle class wages increase faster than inflation/COL and so tax cuts will always be degraded over a 10 year period as the economy grows…only the economy didn’t grow in a healthy manner under Bush/Cheney like it did did every other president.

[Armchair]

We cite things as a % of GDP for multiple reasons. Including that it corrects for inflation.

[bernard11]

Meanwhile, the yield on the 10-year Treasury is 3.87%, and the 30-year yield is 4.04%.

I don't see a market panic over the deficit in those numbers.

[Armchair]

If there's a market panic over US Treasuries, it's already far too late.

[Nelson]

Agreed. US.Treasuries of all kinds have artificial value due to the knowledge that the US always pays its bills.

If Rs get their way and insist on simultaneous spending cuts and tax cuts, we’re screwed. They’ll crash revenues and jack up the deficit with tax cuts (like Reagan, Bush, and Trump did) that the corporations will just use for stock buybacks and other things that benefit the investors.

On a personal level, that’s great for people like me. I make a lot of money, personally, every time someone perpetrates a supply-side boondoggle on Americans. The grift is perfectly OK as far as politicians are concerned because they aren’t the ones feeling the pinch.

For everyone who works for a living? They are the ones who suffer when corporate welfare is passed out to the top of the income bracket and corporations.

[Armchair]

The State revenue problem....

1. While Federal Revenues have remained reasonably constant as a % of GDP, state revenues have not...and are underappreciated as a major taxation burden.

2. Since 1970, State revenues have grown considerably, from ~6-7% of GDP, to 9%-10% of GDP today. Go back further to 1960, and state level revenues were even lower (under 5% of GDP). It's a considerable rise in taxation which is underappreciated. State level spending has kept pace with revenue gains. And we should probably ask where all the money has gone.

3. Interestingly, local revenues have remained reasonable constant over this time frame. ~6% of GDP from 1970 to today.

[Dr. Ed 2]

Massachusetts is headed for trouble -- revenue below projections for 5 months now.

[Armchair]

Is the president immune from criminal charges for actions taken under his official capacity?

An interesting thought experiment.

1. Let's imagine the President orders the extrajudicial killing of a US civilian on US soil. Is the president immune from prosecution?

2. Let's do the same, but with a US civilian on foreign soil. Is the president immune from prosecution. Is the president immune from prosecution?

3. If your answer to both is no, how is it chosen which cases are brought and which aren't?

https://justthenews.com/government/courts-law/jack-smith-argues-trumps-immunity-defense-could-allow-president-murder-sell

[not guilty]

In your hypotheticals, what statute(s) do you posit that the president has violated? Please cite by statute number.

[Mr. Bumble]

So extrajudicial murder in a foreign land is OK if there is no specific law addressing it?

[John F. Carr]

The question was about "criminal charges", which may not be brought in the absence of a specific law.

(In the federal system. My state still has a few common law crimes.)

[not guilty]

"So extrajudicial murder in a foreign land is OK if there is no specific law addressing it?"

The question is not whether conduct is OK or not OK. The question is whether conduct in a given situation is or is not a federal crime. In that regard, whether a statute has extraterritorial application is quite an important question. That is why I asked Armchair to provide additional detail in his hypothetical.

[Armchair]

Which means…you don’t know?

There are two potential answers to this issue.

1. You don’t actually know of any federal law regarding murder by a US Citizen of another US citizen overseas that “might” result in US-based charges. So are a pretty bad lawyer.

2. You DO know of a federal law, but are being a twit about it, in order to avoid the actual question.

Which is it?

P.S. Check US Code 1111, 1117, 1119 for example of just some laws that could be used.

[Nelson]

It's your hypothetical. Why does everyone else have to do your work for you? Google it and post the statute. Is that so hard for you to do? Are your fingers broken?

[Armchair]

See the last line of the post.

[Armchair]

After all that, and demands for cited laws, when actually given...

NG disappears....

[not guilty]

Here I am, Armchair. Your original questions were:

1. Let’s imagine the President orders the extrajudicial killing of a US civilian on US soil. Is the president immune from prosecution?

2. Let’s do the same, but with a US civilian on foreign soil. Is the president immune from prosecution. Is the president immune from prosecution?

3. If your answer to both is no, how is it chosen which cases are brought and which aren’t?

Questions (1) and (2) don't have a definitive answer. Department of Justice policy is that the president is immune from criminal prosecution while he remains in office but is subject to prosecution thereafter. The federal courts have not weighed in definitively.

As to (3), whether a particular case is or is not brought is a question for a grand jury, and the finding of a no true bill does not preclude a subsequent grand jury from finding a true bill. The Attorney General and United States Attorneys retain "broad discretion" to enforce the Nation's criminal laws. In the ordinary case, "so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." United States v. Armstrong, 517 U.S. 456, 464 (1996), quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).

Do you feel better now, Armchair?

[Armchair]

"Do you feel better now, Armchair?"

No. You demanded citations to relevant laws. Yet your answer did not use the demanded cite, which was provided.

Furthermore, you did not answer the question about why you demanded the cited laws.

If you demand citations for analysis, then fail to actually use them, when provided, in your answer...it implies you never actually needed them at all.

[Don Nico]

We know that Obama did #2 with no repercussions.

[Sam Bankman-Fried]

Trump’s first military order ended with 10 children including a little American girl getting killed by Navy SEALs…and a member of SEAL Team 6 got killed by a woman. Apparently the little American girl called Trump a “poop head” and so it was all totes worth it!!

[not guilty]

Still waiting, Armchair. In your hypotheticals, what statute(s) do you posit that the president has violated?

[Kazinski]

I’m picturing you pressing refresh on your browser for hours on end.

Don’t let Armchair hold you hostage that way, go out for a walk, watch a football game, bake a cake, life’s too short to wait with baited breath for a response from someone that for all you know is on his way to watch a bowl game and has completely forgotten his original post and has no interest in your response.

[Mr. Bumble]

It would be nice if these threads featured a notification system that let you know there was a response to your comment.

[not guilty]

IIRC, Disqus had that kind of notification system. It had its merits.

[Nelson]

Agreed, Bumble.

[Sarcastr0]

It's rhetorical, of course. Points to a fundamental issue in Armchair's hypotheticals.

In law school, hypotheticals are meant to get at some specific application of the law, to understand how it operates.

Armchair has no interest in understanding; he just wants to tar Democrats. That causes him to make 2 mistakes.

1) He doesn't provide legal specifics; stuff he feels is wrong is sufficient for him to call something criminal.

2) whether named or not, his hypotheticals are directed at real world people. In the real world, the implementation of the law is not the same as it's hypothetical operation.
There are plenty of people who hypothetically would be guilty or liable, but won't be in the real world. And in the real world, at least in America, there is no 'hypothetically guilty' status.

AL seems to have condemned every Dem as morally wrong of one thing or another, but but the problem with that is it's subjective. That's why he tries not for wrongness but for *guilt*.

But AL's quest to harness legal analysis to turn his subjective feelings into something more objective is doomed to failure, due to his lack of interest in understanding the law formally, and utter misapprehension of it's place in society.

[Mr. Bumble]

Long form SarcastrO is back. Too bad.

[Armchair]

Seems Mr. Blood Libel Sarcastro is back. Guess he just returned from celebrating Hamas for the New Year.

[Sarcastr0]

What the fuck?

[not guilty]

I have enjoyed watching the Citrus Bowl today, thank you very much. Tennessee 35, Iowa 0.

When I make a provocative statement on these threads, I ordinarily support it with legal authority and/or a link to illustrative material. I do that out of respect for the readers, who may check my work in real time.

Too many commenters, however, use legal authority in the same manner as a drunk uses lampposts -- for support rather than illumination. I like to challenge vapid or ipse dixit assertions by challenging the commenter to, in effect, put up or shut up. To no one's surprise, most commenters choose the latter option and run away like a scalded dog. Bear with me if I choose to shame them for doing so.

[Nelson]

"Tennessee 35, Iowa 0"

Ouch. Even considering it's college football, that'll leave a mark. Not as big as Florida State, but still a glorious, multi-hued shiner (or two).

[bernard11]

Good advice.

Armchair just likes to throw shit against the wall. He has no interest in defending what he says.

[Armchair]

Why ask this question? Do you imagine that there isn't a federal law against murder, or against conspiracy to commit murder?

Seriously, you can't imagine some way, some scenario, some federal law in all of your lawyerly expertise that this "might" be breaking, if it wasn't the POTUS?

Or are you just trolling and diverting the question?

[Sarcastr0]

In fact, AL, there isn't a generally applicable federal law against murder.

That's why finding the right statute would be a good use of time.

Except it wouldn't. Because as everyone can see you're plan here is to use the law as a way to instantiate your particular partisan grievances. That's not what it's for - you are barking up the wrong tree.

[Armchair]

I didn't ask for a "generally applicable" law.

I mentioned "a" crime...murder...which is generally understood to be illegal, under any of a variety of laws.

But since you're being a pretentious twit about it....I'll expect you to cite case law in every future post you make.

[Sarcastr0]

Crime is not a vibe.

[Nige]

Hey, when vibing is outlawed, only outlaws will have vibes.

[Nelson]

"under any of a variety of laws"

Such as ...?

[not guilty]

What I imagine is not germane here. It is your hypothetical, and I was asking you to provide details which could be important to the answer -- whether you posit one or more statutes that implicate a federal concern and, if so, whether any such statute operates extraterritorially.

That having been said, most murder prosecutions are brought pursuant to state statutes. Several federal statutes proscribe murder, but each typically requires proof of at least one fact in addition to the historical elements of murder at common law. (There is no federal common law of crimes.) Most such statutes relate to some federal concern touching upon the enumerated powers of Congress.

[Armchair]

"What I imagine is not germane here"

"There are two potential answers to this issue.

1. You don’t actually know of any federal law regarding murder by a US Citizen of another US citizen overseas that “might” result in US-based charges. So are a pretty bad lawyer.

2. You DO know of a federal law, but are being a twit about it, in order to avoid the actual question.

Which is it?

P.S. Check US Code 1111, 1117, 1119 for example of just some laws that could be used."

[NOVA Lawyer]

Your posts are so useless. When called on your lack of understanding of the law, you always resort to ad hominem, usually directed at someone who everyone here knows is far more knowledgeable and intelligent and honest than you, Armchair.

[Armchair]

Seems all you can do is insult.

As an addendum, I'm the only person who has actually cited relevant laws in this post.

[Nelson]

"You don’t actually know of any federal law regarding murder by a US Citizen of another US citizen overseas that “might” result in US-based charges."

I don't. Do you?

FWIW, the answer (which you won't like) seems to be that there is unlikely to be a law that makes it a federal crime for one American to kill another American overseas.

It seems like even one American killing another American in the US isn't automatically a federal crime.

So what federal law do you think a President would break with a targeted killing of an American on American soil? The lawyers already said it would be a state crime, but federal? Without more details it is unclear.

[Armchair]

See the last line of the post.

[Nelson]

"Why ask this question? Do you imagine that there isn’t a federal law against murder, or against conspiracy to commit murder?"

I don't know. Do you?

[Dr. Ed 2]

It is the position of the USDOJ that the President must be Impeached AND Convicted first.

But wouldn't it be the same thing as Ashley Babbit?

[John F. Carr]

The DOJ says the president has to be out of office one way or another.

In some countries the president has lifetime immunity unless the legislature withdraws it. That is not a terrible system. It is not the one we have in the United States.

[Nelson]

"But wouldn’t it be the same thing as Ashley Babbit?"

No.

This has been another episode of "simple answers to stupid questions: conspiracy theory edition".

[Michael P]

I think criminal charges would be possible in both cases under conspiracy-to-murder or deprivation-of-rights statutes. However, if the president used the normal mechanisms of government -- for example, the military, whose members are supposed to reject unconstitutional orders -- then there should be a fairly strong presumption that there is no criminal liability because of the system's inherent checks and balances. Similarly, if the president's desired action is checked by those mechanisms, then there should also be no criminal liability; otherwise too much of the ordinary political back-and-forth would be subject to criminal reprisals after someone left office.

[not guilty]

Michael P, what you think or what I think about what conduct should be criminalized means diddley squat. Only Congress can make conduct criminal.

[Michael P]

You are wrong as usual, unless you think Trump is totally immune to the criminal charges pending against him in Georgia.

[not guilty]

Good point. I should have said only Congress can make conduct a federal crime.

[Michael P]

Yes, but even that is irrelevant because Congress already did that -- Title 18 Section 242 would form the basis for the first hypothetical, and Section 1119 for the second one.

[grb]

All this business about Trump, immunity and the 14th amendment is a bit confusing to me as a non-lawyer. However I did see someone propose a compromise trade : We'll allow the 14th amendment doesn't apply to Trump in exchange for the 22nd amendment not applying to Obama. Seems fair to me!

As a perfect bipartisan trade-off, that's second only to a national unity ticket of Dolly Parton for President. Everyone loves Dolly...

[Michael P]

And as the 25th Amendment applies to both FJB and Veep Harris, we will see how President Mike Johnson does for the next year!

[not guilty]

On the off chance that you are serious rather than merely bloviating, how is it you surmise both offices will become simultaneously vacant?

[Brett Bellmore]

There are bigger problems here. The 25th amendment is actually harder to use against an uncooperative target than impeachment, as, if the target challenges the action, it requires a supermajority vote of BOTH chambers of Congress to uphold it. Compared to impeachment's majority vote in the House, and Senate supermajority.

It's not meant as an end-run around impeachment's difficulty convicting, it really is just intended for obvious cases of incapacity.

[SRG2]

The correct answer in both cases is "no".

How it's chosen...difficult. The general position appears to be that if there's an obvious and genuine policy dimension, there will be no action. That's why nobody bothered to prosecute Reagan for Iran/Contra, or why no American president gets tried for war crimes, though many American presidents have committed them.

[Armchair]

Indeed.

But as for how it is chosen...unless it's absolutely crystal clear...there's always going to be a question if the initial prosecution for events that happened during the presidency were for partisan reasons. And if it looks like it may be...

There's going to be a question, will future administrations prosecute past administration for "crimes" done as president.

[Sarcastr0]

There is no status 'has done crimes.' We have trials for that.

That's why everyone is bringing in practicalities.

[Mr. Bumble]

Please Lord, if you are listening, spare us from any post about the 14th Amendment for at least one day!

[mydisplayname]

🙂 Lets her something from Beowulf regarding the Trillion Dollar Coin!

Or something from Darude.

[bernard11]

Amen.

[Dr. Ed 2]

Interesting freedom of religion question -- can a public university provide an accommodation only to Jewish students and not to other students? See: https://www.umass.edu/living/assign/religious-accommodations

Amish come immediately to mind, but what about various cults?

And what I don't understand is how inserting a card is "work" while turning as key is not. Just sayin....

[John F. Carr]

If you thought American law had some odd quirks and arbitrary rules, the Jews have been developing their law for several times as long.

As I see this the school has adopted a standard accommodation for a common religious belief. It may be legally required to make such an accomodation if it can do so easily. To claim illegal discrimination you would need to make a comparable request based on another religion and have it denied.

Some Sabbath proscriptions can be overcome by running a piece of string around the campus to make it an honorary indoor location (an "eruv"). I think the rule against electronic gadgets is not excused, otherwise you wouldn't have Sabbath elevator programs in New York City. Elevators stop at every floor because observant Jews are not supposed to press any buttons.

[not guilty]

The members of the Colorado Supreme Court who ordered Donald Trump's disqualification from appearing on the ballot have reportedly received threats of violent reprisal, often in direct response to Trump's posts about the ruling on his platform Truth Social. https://www.nbcnews.com/politics/donald-trump/colorado-justices-face-flood-threats-disqualifying-trump-ballot-rcna130720

Will hell freeze over before Trump repudiates his supporters' despicable conduct?

[Mr. Bumble]

Maybe despicable conduct would stop if there was any effort to track down and prosecute those responsible (from the left and right: see Chuck Schumer) for making threats.

[Don Nico]

"Will hell freeze over before Trump repudiates.... ?"

ng,
You know better. Of course he won't repudiate.
Happy New Year

[Michael Ejercito]

Why should he?

[Kazinski]

What's the difference between the threats to the justices over the impending Dobbs decision, the demonstrators besieging their homes, threats to their families?

And of course all threats Trump himself gets.

Trump probably thinks its par for the course, at least in today's political environment, and nothing to do with him, and he is probably right.

[Brett Bellmore]

Indeed. And once you start the repudiation game, it never ends. It starts with people you'd gladly repudiate, but sooner or later they'll demanding you repudiate core members of your coalition.

Like global thermonuclear war, the only way to win is to not play.

[Nelson]

Excellent War Games reference! Well played!

[not guilty]

CNN is reporting that early this morning someone broke into the Colorado Supreme Court Building, held an unarmed security guard at gunpoint, and fired several gunshots inside the building causing significant and extensive damage. https://www.youtube.com/watch?v=8tsv2YUXeGw The gunman called 9-1-1 himself and was arrested.

[Nelson]

That happened? What is wrong with people?

[Rev. Arthur L. Kirkland]

THE VOLOKH CONSPIRACY

This tellingly white, conspicuously
male conservative blog with a
vanishingly thin and receding
academic veneer confirmed
anew its position as America's
Official Legal Blog of Disaffected
Conservative Bigots by publishing
vile racial slurs on at least

FORTY-SIX (46)

occasions during 2023
(that’s at least 46 different,
distinct discussions that include
vile racial slurs, not just 46 racial slurs;
many or most of those discussions
featured multiple racial slurs from
Prof. Eugene Volokh and/or the
carefully cultivated collection of
conservative commenters.

This assessment does not address the
incessant stream of gay-bashing, white
nationalist, misogynist, antisemitic, racist,
Islamophobic, transphobic, xenophobic,
and Palestinian-hating slurs and other
bigoted content published daily
throughout 2023 at this faux libertarian
blog, which is presented from the
disaffected, vanquished right-wing fringe
of modern legal academia by members
of the Federalist Society for Law
and Public Policy Studies.

The year brought several new facets
to the Volokh Conspiracy's longstanding
bigotry. Most prominent, Prof. Volokh
unveiled a peculiar and persistent
transgender fetish, regaling his curated
collection of conservative fans with
recurring tales of transgender parenting,
transgender rest rooms, transgender
teachers, transgender sorority drama,
transgender artificial intelligence, and
anything else he could find that enabled
him to feature transgender issues.

The frequency and speed with which
Prof. Volokh spotlights transgender
issues (and seizes every opportunity
to publish vile racial slurs with plausible
deniability) suggest a fascinating (and
illuminating) roster of Google alerts.

The newly emerged trans focus joined
this blog's familiar and still reliable
inventory -- Muslims, white grievance,
lesbians, male grievance, drag queens,
Black crime, conservative grievance,
RINO hunting, etc. -- of fixations.

The Volokh Conspirators, no doubt tired
of playing defense with respect to their
right-wing bigotry for decades, latched
vehemently onto every chance to express
outrage concerning anyone or anything
they deemed insufficiently hospitable
to Israel's right-wing belligerence -- but
continued, of course, to refrain from
criticizing the everyday doses of
right-wing antisemitism that have been
a dependable feature of their
bigotry-saturated blog for years.

Those who figure this blog's recent
ramp-up of bigoted content might be
unsustainable may be surprised when
Prof. Volokh departs UCLA (and the norms
of mainstream academia) for a position
as paid partisan mouthpiece at the
Hoover Institution. Prof. Volokh has
customarily tossed the trans-related
red meat to his insular fanboys without
much comment, for example. That may
change when he no longer constrained
by concern that his employer might
object to old-timey bigotry.

The Volokh Conspiracy's partisan
cowardice continues to merit mention.
The Conspirators -- who endorsed
un-American crackpot John Eastman,
covered for disgraced former judge
Alex Kozinski, associated with discredited
scoundrel Jeffrey Clark, and canonized
unethical and disingenuous moneygrabber
Clarence Thomas -- were remarkably quiet
throughout 2023 as their heroes and
colleagues joined Donald Trump, Rudy
Giuliani, and other prominent conservatives
in the still- revolving barrel of investigation,
indictment, arrest, arraignment, allocution,
appeal, admission, disbarment, disgrace,
conviction, sentencing, judgment, and humiliation.

The Volokh Conspiracy's devotion to freedom
of expression fluttered even more forcefully
with the partisan winds during 2023, although
the level of viewpoint-driven censorship
imposed by this blog appeared to diminish
during the recently concluded year.

Amid this blog’s stale, ugly right-wing content, here is something worthwhile to start a new year (with Bill and Charlie deftly manning the engine room).

This is a different perspective you might have missed.

Happy holidays, everyone!

[ReaderY]

The Republican Party’s petition for writ of certiorari to the U.S. Supreme Court in the Trump Colorado ballot disqualification case didn’t argue that Trump didn’t do it or that he received an inadequate hearing.

It made 3 arguments:

1. The President is not an officer of the United States within the meaning of Section 3

2. Section 3 is not self-executing and not available autjority for state courts

3. Removing Trump from the ballot violates the Republican Party’s First Amendment associational rights

[SRG2]

I think #3 is clearly wrong. Consider if the Teenage Politicians' Party or the Party For Green Card Politicians tried to argue the same point. If constitutionally you're ineligible, your 1A association claims are worth bupkis.

It will be amusing to see how SC takes #1. I imagine we'll see some serious self-knotting from a couple of right-wing justices in order to accept the GOP's argument.

#2? I don't know enough about what counts as "self-executing" to know whether 14.3 should be regarded as being. We can be pretty sure that a conviction is not required - and a textualist would be 100% sure it isn't. That doesn't make it self-executing, though.

[Kazinski]

"We can be pretty sure that a conviction is not required – and a textualist would be 100% sure it isn’t. That doesn’t make it self-executing, though."

I half agree with you, nothing in section 3 requires a conviction.

But section 5 clearly leaves the question up to Congress as to whether a conviction is required. And since Congress did pass an insurrection statute that requires conviction to be disqualified from federal office, I think its pretty much a slam dunk that a conviction is required.

(I have to correct myself from a few threads ago that Congress passed the insurrection statute in 1862, since that statute, while its similar, also lists forfeiture of ones slaves as an additional penalty for Insurrection. So the current statute was obviously amended since then a few times (1909, 1940, 1948,1994).

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

(June 25, 1948, ch. 645, 62 Stat. 808; Pub. L. 103–322, title XXXIII, § 330016(1)(L), Sept. 13, 1994, 108 Stat. 2147.)

Notes:
Historical and Revision Notes
Based on title 18, U.S.C., 1940 ed., § 4 (Mar. 4, 1909, ch. 321, § 4, 35 Stat. 1088).
Word “moreover” was deleted as surplusage and minor changes were made in phraseology.

Editorial Notes
Amendments
1994—Pub. L. 103–322 substituted “fined under this title” for “fined not more than $10,000”.

https://www.law.cornell.edu/uscode/text/18/2383)

I can't imagine the Supreme Court is just going to ignore the fact that Congress passed a law that requires a conviction for disqualification from federal office.

Some have said that because the Insurrection statute is somewhat broader than section 3 it can't be a section 5 implementation, but since the Thornton terms limits decision was subsequent to the insurrection statute it would merely open it to an as applied challenge where it goes beyond what's authorized by section 3. It would not be clear to Congress at the time the passed it that a wider application would be beyond their authority, so it can't be argued its broader nature wasn't intended to be under their section 5 authority.

But since Congress has only passed one statute to disqualify someone from federal office it would clearly limit the application of section 3 to a conviction by a jury of peers beyond a reasonable doubt for insurrection.

[Sarcastr0]

Clearly.

[not guilty]

I have explained time and again that disqualification from holding office under the Fourteenth Amendment, § 3 and disqualification imposed as a consequence of a criminal conviction are different in multiple, material respects. At the risk of casting pearls before swine (Matthew 7:6), I shall explain once more.

Some federal statutes, such as 18 U.S.C. §§ 2071(b), 2381 and 2383, impose as a mandatory part of the sentence that the defendant shall be incapable of holding any office under the United States. Per 18 U.S.C. § 201(b)(4), some persons convicted of bribery may be disqualified from holding any office of honor, trust, or profit under the United States. Disqualification under the Fourteenth Amendment, § 3, however, is not a criminal penalty. The criminal disqualification statutes accordingly do not enforce the provisions of § 3.

The federal criminal statutes cited here apply to all persons. Unlike § 3, they are not limited in their application to persons who have previously taken an oath to support the Constitution of the United States.

Congress may by a vote of two-thirds of each House, remove a § 3 disability. Congress, however, has no authority to modify a sentence imposed by an Article III judge for conviction of a crime.

Disqualification under the federal criminal statutes applies only to holding federal offices. Disqualification under § 3 applies to both federal and state offices.

If disqualification under § 3 is a criminal penalty, it could not have been applied ex post facto to punish acts prior to its adoption in 1868. The very raison d’être of § 3, however, was to disqualify ex-Confederates who participate in the Civil War from holding federal or state office. The words of a constitutional provision must be given the meaning they had when the text was adopted, and § 3 should be interpreted in a way that renders it compatible with, not contradictory to, pre-existing ex post facto prohibitions. It follows that § 3 disqualification is civil in nature, not criminal.

[Brett Bellmore]

You're just handwaving away the reasoning here: The 14th amendment, Section 5, allows for enabling legislation. The argument is that 'self-execution' gives way to enabling legislation, and such legislation HAS been enacted, and it requires conviction.

This seems to me to be the most likely approach the Supreme court will take to the matter, since it doesn't make Section 3 a nullity, but does make it unlikely to become a regular resort for partisan purposes, which is where we're headed right now.

[not guilty]

Brett, you are ignoring (I suspect willfully) that disqualification under the Fourteenth Amendment, § 3 is a non-criminal sanction. Under § 5 Congress could require a criminal conviction as a prerequisite to invocation of § 3 disqualification, but it has not done so.

How can you explain (or handwave) away the multiple differences between criminal punishment and the civil disability created by § 3 that I have explained above?

[Brett Bellmore]

And you're STILL ignoring the actual argument, which is that Congress HAS enacted the enabling legislation, and it DOES demand a criminal conviction. That being the case, 'self execution' is no longer an option.

[Sarcastr0]

In the past you've appeared to argue that a criminal process is the due process that's required.

Do you still believe that?

[not guilty]

Brett, your ipse dixit assertion that any criminal statute constitutes enabling legislation for purposes of § 3, no matter how often you repeat it does not make it so. I have repeatedly explained the differences between criminal statutes which mandate or authorize disqualification from federal office as part of the sentence and disqualification under § 3. You have provided no authority to the contrary.

Do you claim that any federal criminal statute carrying disqualification as a penalty is limited in its application to persons who have previously taken an oath to support the Constitution of the United States? Yes or no? If so, what is your supporting authority?

Do you claim that Congress has authority to modify a sentence imposed by an Article III judge for conviction of a crime? Yes or no? If so, what is your supporting authority?

Do you claim that disqualification under any federal criminal statute applies to both federal and state offices? Yes or no? If so, what is your supporting authority?

Do you claim that disqualification under § 3 is a criminal penalty which, notwithstanding pre-existing ex post facto prohibitions, could nevertheless have been applied to punish acts committed prior to its adoption in 1868? Yes or no? If so, what is your supporting authority?

[not guilty]

Still waiting, Brett. I have pointed out the substantial differences between disqualification under the Fourteenth Amendment and disqualification under 18 U.S.C. § 2383. Do you have even a scintilla of legal authority conflating the two?

[Sarcastr0]

The 13th Amendment also allows for enabling legislation. That doesn't mean it's not self-executing.

This is elementary stuff that's been explained to you and Kaz a number of times. Your rote repetition without engaging with what you've been told is a sign of how little reason is actually engaged in your thinking at this point.

[Brett Bellmore]

Yeah, I've explained that to you before.

As a practical matter, it is impossible to hold slaves without committing multiple acts which are perfectly conventional crimes in their own right. The 13th amendment, simply by declaring that slavery could not exist in the US, made it legally impossible to raise as a defense to charges for those offenses that the victim was a slave, and thus holding them prisoner and punishing them if they didn't obey wasn't a crime.

So the only way slavery could persist in the US after the 13th amendment is if local authorities declined to prosecute those cases. THAT is what the enabling legislation was needed to address, it was not needed to make slavery itself illegal.

The above reasoning doesn't apply to Section 3: Running for office isn't a crime by default with being a qualified candidate being a defense. It isn't a crime at all.

[Sarcastr0]

So the 13A has a useless bit of text about enabling legislation, wheras the 14A has the same text but it's load-bearing.

Nonsense. Only someone as committed to rationalization would think that's the way to read the text, or that the Framers had that plan when drafting.

[Brett Bellmore]

Not useless at all: It allowed the federal government a basis on which to prosecute slavers where local authorities declined to, which was pretty important.

[Sarcastr0]

So your thesis is that the 13A is *not* self executing, and operates only via state general police power and potential federal legislation.

How many different theses are you on at this point? You are galloping.

[Brett Bellmore]

No, I've expressed my theory repeatedly, however insistent you are on mischaracterizing it.

It's self executing in the sense that slavery ceased to be legal anywhere in the US the moment it was ratified.

Penalizing slavery did not technically require legislation, because it is impossible as a practical matter to hold people enslaved without violating general laws against things like false imprisonment, and the 13th amendment wiped out any defense based on the victim being a slave.

Enabling legislation was only needed because you couldn't rely on local authorities to honestly enforce those pre-existing laws.

This sort of reasoning isn't applicable to Section 3, because running for office isn't presumptively a crime in need of an affirmative defense.

[Sarcastr0]

Do you know what self-executing means?

If you require legislation - even preexisting legislation - it is not self executing.

[David Nieporent]

.

It’s self executing in the sense that slavery ceased to be legal anywhere in the US the moment it was ratified.

And A14S3 is self-executing in the sense that insurrectionists who had previously taken an oath ceased to be eligible for office the moment it was ratified.

[David Nieporent]

.

You’re just handwaving away the reasoning here: The 14th amendment, Section 5, allows for enabling legislation. The argument is that ‘self-execution’ gives way to enabling legislation,

And this is fair enough, as far as it goes…

and such legislation HAS been enacted, and it requires conviction.

…but then it went too far. There is nothing to suggest that the insurrection statute, which was originally enacted before the 14th amendment, was intended by Congress to be the “appropriate legislation” for enforcement of the 14th amendment.

[Brett Bellmore]

I would think that the fact that they were both written by the same people is at least some basis for thinking that the amendment, in referring to "insurrection", was referring to the earlier law they'd passed, that carried the same penalty.

The 14th amendment was, in large measure, adopted to constitutionalize some things the Union had done already that were rather lacking in any enumerated powers basis.

Prudentially, which is often the only way you can really explain the Supreme court's legal reasoning, requiring a criminal conviction for a relevant offense is probably the easiest way the Court can prevent a Section 3 death spiral without mooting that section.

[Sarcastr0]

The 14th amendment was, in large measure, adopted to constitutionalize some things the Union had done already that were rather lacking in any enumerated powers basis.

Absolutely ridiculous. The text of the 14A itself shows that's wrong. The legislative history further shows that's wrong. And your reliance on personal stories about the Civil War is another sign your legal analysis is neither legal, nor analysis.

[Sarcastr0]

Prudentially, which is often the only way you can really explain the Supreme court’s legal reasoning

When it comes to Constitutional interpretation?!!

You, Brett, Bellmore, formalist beyond sense, are now taking a *purely* functionalist position on the Court's 14th Amendment jurisprudence.

[David Nieporent]

The petition was (of course) drafted badly, but on the merits proposed QP #3 is insane. Of course there is no 1A right to run an ineligible person for president.

[mulched]

In the primary, he's running for Republican Party nominee, not US president.

[David Nieporent]

People ineligible for the office are ineligible for the primary as well. You know who upheld that law? Neil Gorsuch.

[Brett Bellmore]

Right, right. That's why Victor Berger got on the ballot, had his votes counted, and was declared the winner, before Congress refused to seat him: Because people who are ineligible for the office are ineligible for the primary, too. [/sarc]

But, who gets to decide that they're ineligible, and on what basis through what process? That's the whole question here.

[David Nieporent]

Since Victor Berger was not from Colorado, I don't know why you are bringing him up. Also, why do you think there were any primaries?

[Kenneth Almquist]

Their arguments on the second question seem clearly bogus to me.

Cale v. City of Covington (an appeals court decision) ruled that the 14th Amendment doesn't create a cause of action in Federal court (at least under the circumstances of that case). But the only reason that this case is being considered by a Federal court is that the Colorado Republican Party filed a petition for Certiorari.

The Griffin case (again not Supreme Court precedent) goes further, saying in essence that the Federal courts will credit the actions of officers who haven't been removed from office by some formal process. So for example if Trump should be elected, sworn in, and sign a bill into law, under the reasoning of Griffen the courts shouldn't strike down the law on the grounds that Trump is not actually President. Again, this has nothing to do with a state decision about who is allowed on the ballot.

Katzenbach v. Morgan is a Supreme Court decision, making it the most authoritative of the bunch. It says 5 of the 14th Amendment is similar to the "necessary and proper" clause, giving Congress broad authority to legislate to accomplish the objectives of the Amendment. It doesn't follow that the 14th Amendment is meaningless in the absence of Congressional legislation. Indeed, the final section of the petition, the Republican Party asserts a violation of their 1st Amendment rights, but technically that is a claim under the 14th Amendment. (The 1st Amendment only restricts the Federal Government; the Supreme Court has ruled that the 14th Amendment places similar restrictions on the states.) They don't even pretend to believe that states can violate free speech rights in the absence of Congressional legislation.

[John F. Carr]

I think (2) is the only close call.

I would have ruled that as a matter of constitutional law the events of January 6 did not constitute an "insurrection". But the Republicans have conceded that point. In my opinion question 3 is a clear loser and question 1 almost as clear a loser. Colorado has a strong interest in weeding out ineligible candidates and the Republican Party does not have a legitimate interest in running an ineligible candidate. Those who approved the 14th Amendment probably didn't intend to leave such a big loophole.

I think Congress can reject a candidate for ineligibility when counting electoral votes. That does not mean nobody else can. Without clear standards to apply, letting states decide insurrectionality risks inconsistent decisions on a question that ought to have a single answer nationwide.

[mydisplayname]

"There is strong opposition to the current Netanyahu government, seen as the most right-wing in Israeli history. [...] The Supreme Court's ruling threatens to further undermine confidence in his government."
https://www.bbc.com/news/world-middle-east-67859177

Free speech works: in the past five days, all (even the most conservative) newspapers in Israel have openly mocked the Netanyahu regime, resulting in growth of general public opposition to the Likud party.

[Don Nico]

The ruling was no surprise as it decided that removing the "reasonableness" criterion was unreasonable.

[Bwaaah]

Because everybody knows, and agrees, what "reasonable" means, right?

It's not surprising the American Left favors "reasonable" over the rule of law. (What could possibly go wrong with *that*? Like what could 6 conservative justices do with no more than the standard of "reasonable"?)

That's the dim-witted legal thinking that emanates from what Thomas Sowell calls the "unconstrained vision."

[Nelson]

The problem is the structure of the Israeli government. The Prime Minister is appointed by a majority vote in the lone legislative house. The Israeli Supreme Court has always been a counterbalance to the power of the legislature and the Prime Minister (like checks and balances in the US).

The change that Netanyahu (selected as Prime Minister by a simple majority) and the legislature passed says that a simple majority of the legislature (which passes laws with a simple majority) can overrule any ruling of the Supreme Court.

You don't see a problem with all political power being wielded by a simple majority of the legislature with no checks? I guess you think authoritarianism is a feature, not a bug, in a political system.

[John F. Carr]

Most of the members of the court agreed that it could decide the case, meaning the Knesset is not the sole source of law. A bare majority decided that the judicial reform law went too far.

Netanyahu's response was that it is inappropriate to defy him while a war is going on. I don't find that very persuasive. This opinion is unrelated to the merits of the decision. I don't think war is a sufficient excuse to reject it. If he wants to ignore the court because the Knesset is the sole source of law, that's another story.

[Michael Ejercito]

So what is the ultimate source of law in Israel?

[Bwaaah]

I believe it is ultimately the opinions of the people who sit on their Supreme Court bench, guided, not bound, by statutes.

[Michael Ejercito]

So an oligarchy, then.

[Nelson]

If the Supreme Court can be overruled by a simple majority of the legislatire (which is what this law says), the sole source of political power would be the legislature with nothing to stop anything they choose to pass. How does that sound to you?

[David Nieporent]

Israel is a democracy; democracies have governments, not "regimes." And westerners who don't know anything about Israel — like mydisplayname — shouldn't fool themselves; support for the war against Hamas is very different than support for Netanyahu (and, conversely, opposition to Netanyahu is very different than opposition to the war against Hamas).

[DRM]

No, yesterday Israel was a democracy.

Today it's ruled by a self-perpetuating oligarchy that, by a vote of 12-3, has announced its powers are unbound by even Israel's Basic Laws.

[Nelson]

The dispute is all about the Basic Law. If this law is allowed to stand, all political power will be wielded by a simple majority in the legislature. No checks, no balances, no restraint.

[Dr. Ed 2]

Even still, I wonder how much blame Bibi N will take for Israel being blindsided, much as Goldi Mayer did after the 1967 war.

In both cases, Israel *was* blindsided, although Bibi N can turn around and say that "it was the left that thought that we could coexist with Hamas, not us."

One should also note that Israel has a parliamentary system of government, as does Canada and Great Britain -- it doesn't have three co-equal branches of government like we do, and hence the argument that the Knesset is the sole source of law has a lot more merit than it would here.

However, we view our judicial system in a post-Marshall light -- what would have happened if John Adams and the Federalists had won the 1800 election and hence not had to use the Judiciary as a means to hold onto political power. (John Marshall likely would have remained Secretary of State.)

[Zarniwoop]

Janitor Ed bloviates:

One should also note that Israel has a parliamentary system of government, as does Canada and Great Britain — it doesn’t have three co-equal branches of government like we do, and hence the argument that the Knesset is the sole source of law has a lot more merit than it would here.

Walk me through this. You assume Israel/Canada/GB don't have three co-equal branches of gov't. So accepting that, their system of gov't is "not 3".

Israel appears to have - and I admit I'm not following this in excruciating detail - the Knesset and the Judiciary. Both entities get to opine on the status of their laws.

That's 1 + 1 = 2. Can I assume you agree 1 + 1 = 2?

Do you also agree that there's room for "2" in between "3" and "1"?

Your argument that "they don't have 3 so therefore it must be 1" is unthinking, outcome oriented bool and sheet.

[Brett Bellmore]

OK, so we’ve established that they’ve got more than one branch. Where do you get your “co-equal” from?

I mean, the US has an actual constitution, which is the supreme law of the land that the legislature can't supercede without amending it. (At least in theory, anyway.) And that provides the courts with an excuse to tell the legislature and executive that they can't do something.

But Israel has no constitution, only legislation that can be changed any time the legislature wants. That doesn't appear to provide the judiciary with any secure footing for saying "no" to the legislature.

[Dr. Ed 2]

EXACTLY.....

[Sarcastr0]

A written constitution is not the only way to have an 'actual' constitution.

https://en.wikipedia.org/wiki/Basic_Laws_of_Israel

"The Basic Laws of Israel (Hebrew: חוקי היסוד‎, romanized: Ḥukey HaYesod) are fourteen quasi-constitutional laws of the State of Israel, some of which can only be changed by a supermajority vote in the Knesset (with varying requirements for different Basic Laws and sections). Many of these laws are based on the individual liberties that were outlined in the Israeli Declaration of Independence"

[Brett Bellmore]

Right, the other way is to have an uppity judiciary.

[Sarcastr0]

Incredible comparative law work, Brett.

[Brett Bellmore]

Pretty good compared to the guy who can't accept that some countries don't HAVE formal "constitutions". In such countries, the judiciary doesn't actually have a legal basis for telling the legislature they can't do something.

At least the legislature has some popular basis for exercising power, being elected. The judiciary don't have that, and if they don't have a constitution, they're operating on the sufferance of the people who were elected.

[Sarcastr0]

Do you think having a written constitution prevents us from having a power struggle between the judiciary and the executive?

'The judiciary power' and 'the executive power' being written down is not what saves us from such issues.

You are not an expert. Neither am I, but at least I took the trouble to look stuff up, rather than making up how I think an entire academic discipline should go.

[Brett Bellmore]

No, I think having a written constitution provides the basis for us having a power struggle between the judiciary and the LEGISLATURE. Not the executive.

In a fight between the judiciary and the executive, even absent a written constitution, the judiciary can appeal to statutory law as a basis for declaring executive actions ultra vires.

But, without a written constitution, the judiciary doesn't have a leg to stand on in a fight with the legislature, the SOURCE of the law it purports to be interpreting.

You seem to be missing the point here: The Israeli judiciary haven't picked a fight with the executive here, they've picked a fight with the legislature. And they have diddly squat in the way of any independent claim to power against THAT branch, in Israel.

[Sarcastr0]

Yes, we have 3 branches; Israel's parliamentary system has 2. It's the same deal when it comes to conflicts between the branches, and pen and ink is not a magic solution.

without a written constitution, the judiciary doesn’t have a leg to stand on in a fight with the legislature, the SOURCE of the law it purports to be interpreting

You didn't read my comment above: "fourteen quasi-constitutional laws of the State of Israel, some of which can only be changed by a supermajority vote in the Knesset."

That's a basis! At least as strong as 'the judicial power' and 'the legislative power' which are still definitions that need to and have been adjudicated by our own Supreme Court.

Comparative law is not some are you can just blunder into and logic it out.

[Nameless But Highly Opinionated]

Sure. Every country in history has had a constitution, written or not. The term simply refers to how they’re governed. But if the people aren’t the sole source of constitutional law in a country, it can’t be called democratic, whatever else it is.

[Moderation4ever]

But was it really the Israeli left that thought Hamas could be tolerated? Evidence suggests that Netanyahu was quietly paying off Hamas and that for the Israeli right's purpose Hamas was a better face for the Palestinians? As to be blindsided, the case seems to be that Netanyahu focus was on saving his own backside and not protecting the country. The same cannot be said of Goldi Mayer.

[Kenneth Almquist]

I don't know what the Israeli left thought about Hamas (probably there were a bunch of differing opinions), but Netanyahu's record in office is clear. When Israeli intelligence obtained a list of Hamas's foreign assets, Israel could have attempted to seize those assets on the basis that Hamas was a terrorist organization. It did not. I don't believe that Israel gave Hamas money, but Qatar did, and every payment by Qatar was pre-approved by Israel.

Unlike random leftists, Netanyahu had one of the world's best intelligence services working for him. Israeli intelligence obtained an early version of the Hamas attack plan. It detected one of the training exercises that Hamas undertook in preparation for the attack. Israel understandably did not make this information public, but Netanyahu had access to it. He could have had more intelligence, but didn't want to spend a lot of money monitoring communications between Hamas leaders.

Israel did upgrade the wall along the Gaza border under Netanyahu, making it impossible for Hamas to breach (or tunnel under) the wall without Israel immediately detecting it. Israel did not station enough soldiers along the border to repell an attack once it was detected. The soldiers who were there were killed or captured.

I think it is possible for Israel to "coexist with Hamas," but that means either negotiating a peace agreement with Hamas (likely impossible) or preparing for the war between Israel and Hamas to turn into active fighting at any moment. Netanyahu did neither.

[Michael P]

Hamas was, and is, the governing authority in Gaza. How was Gaza supposed to have any government services if payments to Hamas were not approved?

The international left would have practically demanded the UN occupy Israel if those payments were not approved.

[Nelson]

I believe he is referencing the belief by Netanyahu and the conservatives that by supporting separate governments for Gaza and the West Bank (where the Palestinian Authority, a secular government, runs things), they would fight between themselves and not bother Israel as much. So they provided funding for Hamas in Gaza.

Whoops. Bad decision.

[David Nieporent]

.

Even still, I wonder how much blame Bibi N will take for Israel being blindsided, much as Goldi Mayer did after the 1967 war.

Golda — not Goldi — Meir did not take blame for Israel being blindsided after the 1967 war, if for no other reasons than that Golda Meir was not prime minister during the 1967 war and Israel was not blindsided in the 1967 war.

[Nameless But Highly Opinionated]

3rd paragraph:

Agree here. The Knesset dictates the very existence of the Israeli Supreme Court.

4th:
Most Americans are completely unaware of the actual history of judicial review, a phrase not used until the 1880s. "Judicial nullification" as it may be more accurately described, was long seen as a kind of reserve power. Prior to the Civil War, SCOTUS refused to recognize an Act of Congress on only three occasions: 1794, 1803, and 1864. None concerned the Bill of Rights, and all were cut and dry cases, not instances in which "the ablest and the purest [could] disagree" (Iredell).

Courts' nonrecognition of laws was also only proper when the inconsistency was "manifest" (Hamilton), "clear" (Iredell) or the law was at "irreconcilable variance" (Madison) with the constitution. Furthermore, the power was seen as existing to vindicate the people against an usurpative legislature - not to remove them from power over the matter. Setting aside an act of the elected legislature was a "painful duty" (Marshall). State courts' work and power was of similar character.

1890s: Business interests wanted to shove legislators aside, so they had to reinvent the actual history of judicial review. They had to portray the courts as being the sole interpreters, to portray the once rare practice as something to be aggressively used, and to be used against the people themselves. And so a shift began, at least at the Capitol, not so much in the states.

The nation fought back. It took time, but deliberate effort led to Lochner being thrown out, and deference came back. But then a new problem emerged.

It was time to deal with Jim Crow, and judicial supremacy was found to be the most efficient way to do it. We got hooked. What we have now is ahistoric, unnecessary, destabilizing, and fundamentally unrepublican. We would do well to be rid of it.

Regarding your history, judicial supremacy did rear its ugly head twice prior to 1900 - in an attempt to validate Dred Scott's dicta, and earlier in the 1790s. The Revolution of 1800 was in large part a rejection of attempts by the high Federalists to assert "gubernatorial supremacy" - the idea that only those in government have any business assessing the validity or propriety of government acts. The election of 1800 rejected this view, and in doing so weakened the judiciary relative to the legislature, since the latter is closest to the people. So I think you're just a tad off.

[Brett Bellmore]

"Prior to the Civil War, SCOTUS refused to recognize an Act of Congress on only three occasions: 1794, 1803, and 1864. "

Possibly because Congress wasn't as determined to usurp powers it had no valid claim to back then. At this point they barely recognize that there IS such a thing.

[Kazinski]

What Bowl games are everyone watching?

[Moderation4ever]

I watched Wisconsin and LSU and thought it was a pretty good game. Wisconsin led most of the game but LSU did better in the fourth and won by four.

[Mr. Bumble]

The pasta bowl.
Stuffed artichoke, followed by cavatelli with meatballs and a nice prosecco.

[Zarniwoop]

None. Sportsball is just another modern-day instantiation of bread and circuses.

So maybe a better question: if you take sportsball seriously ... why?

Are you the same sort of sucker that every leadership since (at least) Roman emperors took for granted? Are you the sort of sucker who is so easily distracted by artificial tribalism?

So yeah, "none" for me. I don't care what team you like. Why do you like them ... and why do you even care?

[Sarcastr0]

I don't take it seriously myself, but I absolutely get why people do.

Sports is dramatic as all hell, while still being real in some sense.

It's a narrative-building machine where no one can guess the ending.

Unless you're going to go against entertainment generally, sports is legit.

[bernard11]

if you take sportsball seriously … why?

Well, the games are interesting to people, for starters. Then, for whatever reason, people form emotional attachments to teams and schools. Yes, as Seinfeld said, they are cheering for the laundry, but we don't need to have rational defensible reasons for everything we like.

What music do you like? Why?

[Kazinski]

Pretty stupid take.

I don't take jelly donuts seriously but it doesn't keep me from enjoying one.

Some people spend almost every weekend searching garages sales and flea markets for various categories of kitsch art. Is it serious? No.

Do they enjoy it? Yes.

[Nameless But Highly Opinionated]

Michigan (yuck) won and I'm so happy!

for the big 10.

[Intelligent Mr Toad]

What we're reading:

THE BURGLAR WHO COUNTED THE SPOONS by Lawrence Block

The protagonist is a gentleman-burglar who has a cat called "Raffles".

[SRG2]

I like that whole series. Light fare, but none the worse for that.

[Intelligent Mr Toad]

Baritone of the day: Günther Leib (born 1927)

https://www.youtube.com/watch?v=vSRQXsntIgU

https://www.youtube.com/watch?v=8_vupc-qou0

[SRG2]

He is a very tasteful singer. I don't know how I'd not come across him before.

As we're here, try this. https://www.youtube.com/watch?v=Cor9bz6Ya7g

[edemilsonmattoso]

https://reason.com/2024/01/01/californias-repugnant-restrictions-on-public-gun-possession-just-took-effect/

The pieces of shit in the judiciary always play these games, deferring to the government on gun laws. Every fucking time.

[Brett Bellmore]

In the 9th circuit, anyway. The 5th circuit is pretty good in that regard.

[edemilsonmattoso]

2nd and 3rd rubber stamped this crap too.

[Brett Bellmore]

At some point the Supreme court is going to have to start dishing out summary reversals, in order to bring several circuits to heel.

But if they were ready to do that, they'd probably have taken the Illinois AWB case. It appears they're still vacillating, which can only encourage lower courts to ignore Bruen.

[edemilsonmattoso]

Correct. They know when they deny these certs for injunctions that the courts will take their sweet time to have hearings and trials. Which of course is the point.

[hobie]

Agreed. Now replace 'gun laws' with 'abortion laws'

[edemilsonmattoso]

The former are prohibited by the Constitution. The latter is not.

[Nelson]

Of course the latter is, as well. Just because Dobbs took decisions away from people and gave them to the government doesn't mean that people don't have a Constitutional right to control their own bodies.

Presently the theocrats have the upper hand. It won't last, but we have to suffer through it for now.

[Don Nico]

Embattled Harvard President Claudine Gay will resign today, according to a report from The Harvard Crimson.

Hopefully the next Harvard President won't be a plagiarist.

[Sarcastr0]

https://jabberwocking.com/most-plagiarism-is-a-nothingburger/

"In Gay's case it amounts to maybe a dozen phrases or sentences out of hundreds of pages, most of them technical descriptions of survey results. There are no stolen ideas or wholesale ripoffs. And none of the supposed victims seems to care except for Carol Swain, who wrote an aggrieved op-ed ...

But Swain is a crazy person who hates the left these days, so what do you expect?
...
As Jo Guldi explains, a big part of this is basically an abuse of technology:
'New technology makes possible an expanded definition of plagiarism that does not match our concern with misappropriating ideas.... Computers can search out every five word overlaps. Does it matter?... The technology of text mining can be used to destroy the career of any scholar at any time. The offense can be so trivial as to be meaningless in the line of argumentation on which the scholar works.' "

[Don Nico]

Jo Guldi is just wrong. I read the “five word overlaps” every day, in handling manuscript submissions. A human being finds it very easy to distinguish those from actual plagiarism. Hers is the weakest possible defence of Gay.

As for defending sloppy writing in academic submissions as an excuse for plagiarism, I don’t buy that as an editor in chief for nearly 30 years. And it certainly is not leading by example.

[Sarcastr0]

'There are no stolen ideas or wholesale ripoffs' is the key to me.

People have been getting away with around five words laziness for ages. Certainly my time on law review would indicate such.

This is weaponizing something minor and previously unremarked on to destroy someone the right doesn't like.

And you're into it.

[ThePublius]

I can't believe you are defending Gay, and apparently ignoring the mountain of evidence of her plagiarism, that includes entire paragraphs, even multiple-paragraphs, that she lifted virtually verbatim from others' work, without any kind of attribution, in many - most? - of her published papers. Wow. The extent that some will go to defend their political tribe is remarkable.

[Rev. Arthur L. Kirkland]

I hope UCLA's next constitutional law professor doesn't habitually use racial slurs. What about you?

[ReaderY]

Trump is appealing the decision of the Maine Secretary of State to remove him from the 2024 Maine Presidential standard to Superior Court under Maine administrative law, which provides for an abuse of discretion standard for review of a final administrative decision.

If permitted to by Maine law, the Superior Court judge would be well advosed not only to hold as full an evidentiary hearing as time permits, but also to decide under a de novo review standard as well as an abuse of discretion standard.

I think there’s a good argument that a purely administrative hearing is not constitutionally adequate process and a court hearing is required. If so, reviewing for abuse of discretion only without making an alternative decision under a de novo standard would only prolong the proceedings, which would not be in anyone’s interests, and could ultimately result in a win for Trump on procedural grounds on appeal of a court ruling finding no abuse of discretion.

[not guilty]

If Maine's APA provides for an abuse of discretion standard of review, what authority does the Superior Court have to instead conduct a de novo review?

It appears that the Superior Court has some limited ability to order taking additional evidence before the agency or before the reviewing court on application of a party In cases where an adjudicatory proceeding prior to final agency action was not required, and where effective judicial review is precluded by the absence of a reviewable administrative record, the court may either remand for such proceedings as are needed to prepare such a record or conduct a hearing de novo. https://legislature.maine.gov/statutes/5/title5sec11006.html

[not guilty]

The manner and scope of review is set forth here. https://legislature.maine.gov/statutes/5/title5sec11007.html

[John F. Carr]

The order was an administrative stay, not a merits decision. A pro-gun panel could lift the stay. Procedurally, I don't know if the en banc court could immediately reinstate the stay.

The California law conflicts with the recent Second Circuit decision on New York's gun law, which is of course not binding in California. I expect the Ninth Circuit to create a circuit split even if it takes a while to go en banc. The Supreme Court will be hearing at least one of these cases.

[Harvey Mosley]

I wish someone could explain to me why people who tout gun control as a safety issue continue to go after the group that is statistically among the most law abiding groups of people? CCWers are so unlikely to commit a crime with their gun that is almost statistically a rounding error. They are less likely than cops to break the law yet these hoplophobes continue to attack CCWers while always exempting off duty and retired cops.

[Roger S]

The part of Oppenheimer on the atom bomb and WWII was interesting. But then there was a boring hour on an obscure administrative security issue of no consequence.

[Sam Bankman-Fried]

Best Human Being: Taylor Swift

[DaveM]

Oppenheimer, the movie, tried pretty hard to restore his reputation, but frankly I don’t think it did him any favors. Perhaps the movie made too much of his internal conflict about dropping the bomb. I have met some people who worked on the bomb, and they seemed pretty determined.

I had another discussion with someone online about how the US was the good guys in WWII, and I tried to make the point that "good guys" don’t drop atom bombs that kill hundreds of thousands of civilians at a stroke. Yes, it ultimately “saved lives” — just not theirs. Nevertheless we were still willing and able to not only drop those bombs twice but as many times as it would take. That’s who we really are.

[Brett Bellmore]

"A pro-gun panel could lift the stay."

The odds of getting a pro-gun panel in the 9th circuit are essentially zero. I saw a statistical analysis of panels in the various circuits, last year. Spoiler: They're not randomly selected in some of the circuits. The 9th was the biggest offender.

The DC, 2nd, 8th, and 9th circuits exhibit statistically implausible panel compositions according to their original analysis. They then analyzed the data in a different way, and the 2nd and 9th were still statistically implausible.

There's strong reason to believe that the 9th circuit panels are stacked, it's not just a surface perception.

[Ed Grinberg]

“The order was an administrative stay, not a merits decision. A pro-gun panel could lift the stay.” Shouldn’t that be “a pro-Constitution panel”? A panel that respects the Founders’ stated intent and binding Supreme Court precedent? A panel of honest judges (as opposed to political hacks)?

[John F. Carr]

The Idaho abortion case drew an anti-abortion panel. The en banc court had to step in to overrule the panel.

[Noscitur a sociis]

It is perhaps worth clarifying that the analysis isn’t from last year (it’s from 2015): rather, Brett saw it last year, and was informed at the time why it doesn’t support his conspiracy theories.

[Rev. Arthur L. Kirkland]

Newcomers to this blog should, when evaluating Mr. Bellmore's nonstop conspiracy theorizing and frequent citations to sketchy authority, recognize that he is a disaffected, delusional, autistic, antisocial, grievance-consumed, right-wing, birther-class bigot from America's superstition-addled, can't-keep-up backwaters.

That makes him the Volokh Conspiracy's precise target audience.

[not guilty]

I haven't researched the question, but I seem to remember multiple Ninth Circuit panels ruling in favor of firearms fetishists in recent years and thereafter being reversed on en banc review.

[Sarcastr0]

He has a pretty good reputation as it is…

[Michael P]

.

I tried to make the point that “good guys” don’t drop atom bombs that kill hundreds of thousands of civilians at a stroke.

They did, though. They presumably won't do so again because now the bad guys also have atom bombs. Maybe that makes you feel better?

[grb]

DaveM : "Oppenheimer, the movie, tried pretty hard to restore his reputation, but frankly I don’t think it did him any favors"

Did it though? If I made a movie to "restore his reputation", I think I'd do a better job. Oppenheimer, the movie, showed its main character as vacillating and indecisive over the use of the bomb, as well as naive and blindly egocentric elsewhere. If Nolan and the scriptwriters wanted to produce a hagiography, they would have made some very different choices. I think they aimed for a warts&all portrait of a imperfect human being who had extraordinary accomplishments.

[Brett Bellmore]

It's a safety issue, but not the safety of the general population. The safety of the rulers.

The modern gun control movement was astroturfed into existence by the government after Kennedy got assassinated.

[Stephen Lathrop]

Mosley, tell me how many Texan concealed carry licenses got suspended last year for domestic violence. If the number shows concealed carrier domestic violence somewhat less than the statistical average, then maybe that is plausible data. If the number shows almost none, then you have to figure there is something other than forthright, representative data collection going on.

I am too lazy to do it again, but about 10 years ago I checked that out, and the data looked nonsensical. So what is it now?

[Brett Bellmore]

It is perhaps worth clarifying that all this study establishes is that panel assignments in several of the circuits (particularly the 9th) are not random, but instead display statistically highly unlikely patterns of composition related to the party of the nominating President.

This is, after all, not unheard of. During the Clinton administration there was something of scandal when it came out that all Clinton related cases in the DC circuit were being assigned exclusively to judges he had nominated.
Which is a reasonable proxy for ideology.

While this does not prove that the reason 2nd amendment challenges ALWAYS fail in the 9th circuit at the panel level is that the panels are deliberately stacked to achieve that outcome, it certainly raises that suspicion above the level of a baseless conspiracy theory.

Because we KNOW the panel composition is a product of manipulation, not natural.

[Sarcastr0]

While this does not prove that the reason 2nd amendment challenges ALWAYS fail in the 9th circuit at the panel level is that the panels are deliberately stacked to achieve that outcome, it certainly raises that suspicion above the level of a baseless conspiracy theory.

The distilled essence of conspiratorial thinking is that normal a statistical fluctuation implies deliberate action. That is exactly what you are doing.

Fluctuations are not suspicious. Results alone will rarely get you to an actual conspiracy; it's the coverup, or the dialogue, or some extrinsic piece of additional evidence.

[Brett Bellmore]

Abusive non-random assignment of cases on the part of political judges has been a problem in the past. It's hardly a fantasy that it happens. For instance:

Judges question conflict

Or

The Problem with Not-So-Random Case Assignment

[bernard11]

First, I have some serious doubts about the entire methodology used here.

One critical point that I didn't see addressed was the issue of judges who sit on no panels. I don't know why that happens, but unless there is some good reason, known before any panels are formed, they should be included as potential panelists.

Second, I don't quite understand why the frequency with which judges actually served was a factor in the simulation.

My first impression was that this should be just an exercise in combinatorics. So many R judges, so many D judges, so many panels, etc. In fairness, I read it only once, and not all that carefully, so I may well have missed the explanation.

Regardless, there seem to be an awful lot of innocent reasons why the panels would be non-random which, by the way, does not equal "manipulated." The Ninth certainly shows non-randomness, but I wonder if its geographic spread might be a cause of that. Is a given judge as likely to be assigned to a hearing in Seattle as in Pasadena, no matter where the judge lives?

If you want to argue that the panels on 2A cases are stacked, you need more than this study.

[Brett Bellmore]

This was, with a very high level of statistical significance, NOT a normal statistical variation. That was the point of the study: The pattern found could NOT plausibly be the result of random chance!

[Sarcastr0]

That is not how statistics work. They don't tell you what's normal, they tell you what's likely.

[David Nieporent]

.

One critical point that I didn’t see addressed was the issue of judges who sit on no panels. I don’t know why that happens, but unless there is some good reason, known before any panels are formed, they should be included as potential panelists.

I haven't read the links so I don't know if this is what you're referring to, but in the federal system, judges can take what's called senior status when their service+age adds up to 80. Senior status lets them decide what cases they're willing to take.

[Voize]

The Ninth CCA has 29 active judges and 20 or so with senior status who have some control over their workload (e.g. 95 year old Judge J. Clifford Wallace, appointed by President Nixon). According to the study, from 2008 to 2012 there were 2301 panels convened with between 101 and 137 judges participating. The difference between those totals and the count of 50 or so active+senior judges is made up by visiting judges and district court judges who occasionally sit by designation.

According to the Ninth circuit rules back then they made up the panels following these rules:
1. Minimum 2 members, at least one of whom is an active judge
2. Senior judges choose how many panels and whether they will travel. Active judges have an assigned number of panels and are required to travel
3. Over time each active judge should sit with every other active and senior judge approximately the same number of times
4. Scheduling preferences, unavailability, and recusals are accommodated
5. Three-judge panels may include one district judge drawn by lot

All these factors are deliberately nonrandom, and the random algorithm that the study compares with doesn't consider any of them. Even worse, the authors say that in their simulation each panel is drawn from the pool independently from the other draws, which means one judge could be (and over the many simulated runs almost certainly would be) picked for two panels that convene in different cities at the same time.

It's clear the composition of the panels isn't random, and the Ninth Circuit doesn't claim it is random, because random wouldn't work. What they do claim is random though is the assignment of cases to panels once the composition of the panels has been set, but the study didn't attempt to test that claim.

[Brett Bellmore]

Yes, yes, and the statistics here told us that the odds of the panel assignments genuinely being random pretty small. That, as you know, is how statistics works.

I've also pointed out that judges have previously been caught gaming assignments for political reasons.

So, all in all, while it is not proven that the 100% anti-gun result of en banc panels in the 9th circuit is a result of deliberate manipulation, it is at least a reasonable hypothesis worth investigating.

[NOVA Lawyer]

From Brett's study:

"It may instead be the case that some (or all) of the evidence of nonrandomness was simply due to chance—after all, results will be statistically significant at the 10% level just by chance 10% of the time."

This is the basic point he understands, but pretends not to.

"The pattern found could NOT plausibly be the result of random chance!"

That's not even what the authors think. And they hyped their findings pretty hard, despite just finding variations in distributions, and not correlated with specific issues, mind you. Just that the panels themselves had statistically unexpected variations in composition, period, not with respect to specific cases.

Moreover, even if non randomness was established, which it emphatically is not, there can be a lot of non-political/ideological reasons for non-randomness of the type the authors hypothesize (but explicitly acknowledge is merely one of the several plausible interpretations of the data). For example, maybe judges appointed by Republicans tend, for whatever reason, to schedule vacations or off days at similar times. Or judges appointed by Democrats. And many other non-conspiratorial reasons.

From the authors themselves:

"There are numerous factors a court might understandably want to take into account when creating panels that would cause departures from randomness. Moreover, even if that were not the case, simply because of human involvement in at least some of the courts, it seems unlikely that all of the panels in the circuit courts would be strictly random."

The other issue, is the study makes lots of assumptions. It takes the data and sees how many panels Judge X sat on and then tells the simulator used to generate the results that Judge X is expected to sit on that many panels. When, if assignments were random, perhaps they are overrating the number of panels Judge X was available for, or not available for. To some degree, they are taking the data, assuming it represents what should happen, and then running simulations that say it shouldn't. But if the data told to the simulation was wrong, then their results are garbage.

In other words, there are many, many, many steps in between what we know and Brett's conspiracy theory that panels are manipulated against conservatives.

This has been another episode in "Brett lets his ideological conspiracy theorizing run roughshod over his knowledge of statistics and his common sense."

[Nelson]

"The safety of the rulers."

Yes, everyone is so afraid that random citizens might overthrow the system. Is that part of the "Second Amendment is the most important" foolishness?

"The modern gun control movement was astroturfed into existence by the government after Kennedy got assassinated."

You mean when the CIA and the mob killed the President and set up Oswald as the patsy? The Deep State strikes again!

You are so rational and reasonable when discussing things like engineering and nuclear power, but so conspiratorial when discussing history and politics. It's so weird (and confusing) that someone so data- and fact- centric in his work can be so fact-averse when it comes to almost everything else.