Monday Open Thread

What's on your mind?

Comments

[Jay Ash]

I am not looking to get anyone fired, but this weekend there has been a small blowup over a UCSF doctor who has been posting that Zionist doctors are a danger to their Palestinian, Arab, and Muslim patients. (Others added BIPOC patients as well)

This MD works for UCSF.

Her antisemitic idiotic comments are protected by the First Amendment right?

Nevertheless, she is a doctor and she is making remarks about the care of other doctors (though none are named) that could jeopardize the relationships they have with their patients. Or that could damage UCSF's reputation.

Can medical licensing boards sanction her?

If an attorney or law professor who worked for a UC said something similar, what punishments might they face and from whom?

One reason I am curious is that it’s my understanding that in colleges, maybe state colleges, that codes of conduct still cannot override First Amendment protections of student speech. Making me wonder if UCSF can even fire her if they bring up some (perhaps imaginary) employment agreement they have all their employees sign about not being a public jackass.

What are the legal avenues a person or institution might have towards getting an MD working for a state school fired or causing them to lose their license to practice medicine.

Honestly, I’m not looking to have anyone fired, but many people are calling on UCSF to fire her, I am wondering what I am either missing, or what they are missing.

[Intelligent Mr Toad]

The question is: can you be an effective resident or attending physician, if all the other physicians at the hospital where you spend 95% of your waking hours all refuse to talk with you?

[Frank Drackman]

Are you kidding? in San Fran Sissy-co they'll make her a (redacted) heroine. She's one of the "Bettors" the "Reverend" Sandusky keeps blathering about. Problem is he's right (about the "Replacement" that's not happening that he's so happy about)

Frank

[John F. Carr]

It's not so much antisemitic as it is a manifestation of the attitude "if you disagree with me you think I shouldn't exist and must want to kill me." It happens to be about Jews this time.

[Dr. Ed 2]

It's more about her and how patients aren't safe with her.

I also strongly suspect that she violated some aspect of the state's MD regs.

[Noscitur a sociis]

This fucking guy…

[Krayt]

Now we're gonna need a stastical study of Zionist vs. Non-Zionist doctors, I suppose, when working on non-Jewish Middle Easterners. I suppose she has this data alreadlet's see what else is on tv

[Jay Ash]

Yes, given that she and supporters are insisting this is about Zionist doctors and not Jewish doctors, and that they are basically urging UCSF to purge their Zionist doctors and warning Palestinian, Muslim and Arab patients to fear their Zionist doctors, do they have any good way of figuring out which doctors are Zionists and which are merely Jewish?

[Commenter_XY]

Is defamation a potential consideration?

Meaning, the Jewish doctors sue for reputational damage.

[David Nieporent]

No. She didn't identify anyone specific, or any small group. She defamed all "Zionist" [Jewish] doctors, and that's too big a class to allow anyone to bring a defamation claim.

[Commenter_XY]

Are the Jewish doctors just SOL?

Wait....that lady created hostile work environment. That has to be the one. Tell me this is harassment and she created a hostile work environment.

[MonitorsMost]

A state medical board would be in for a tough case to try and sanction her for this speech. There is something of a doctrine (that is in flex thanks to NIFLA) that professional speech can be limited more than the normal exceptions to the First Amendment exceptions. But it’s not going to work to call social media posts speech in the course of her professional responsibilities. Maybe you can find a COVID law case where a doctor was sanctioned for promoting horse paste on social media, but that really shouldn’t be how it works.

UCSF is in stronger position as an employer but would still be subject to the Pickering balancing test. The professor meets the first two requirements of the test (1) speaking in her private capacity and (2) on an issue of public concern. This would be balanced against whether her being batshit crazy on a topic of the medical profession will cause a disruption to the public employee services or perception of confidence the public has for those services. But it’s a balancing test that would be squishy at best, and UCSF is not going to take the headache that the pro-Hamas students and faculty at the school will cause if they were to take official action against the professor.

[Nelson]

So are employers not allowed to take action against an employee who badmouths them?

And I understand this is probably a "That depends ..." answer, but I'm actually interested in the answer.

[David Nieporent]

That depends. With public sector employees, the 1A comes into play and you have to do the balancing test. Maybe. It depends whether you're criticizing your employer as part of your duties (no protection at all) or on a purely private matter (no protection) or on a matter of public concern (balancing test). With private sector employees, the NLRA comes into play.

[Michael P]

It’s interesting, and I think representative of the respective intentions, that Donald Trump recently went to Iowa for his major campaign event, interacting with voters there who will be at the nominating caucuses — while Joe Biden gave his corresponding campaign speech in Valley Forge, where he compared himself to George Washington, who camped there with a revolutionary army that was trying to overthrow the previous government of the colonies.

[Martinned]

Is that the same campaign event where Trump said that magnets stop working when you put them under water?

[Frank Drackman]

No, it was the one where Parkinsonian Joe recommended firing a Shotgun out a window.

[Kazinski]

He got water confused with fire.

[Martinned]

O, that's fine then. Please keep complaining that Biden is senile.

[Michael P]

He did have to be reminded that he likes ice cream last week.

[Frank Drackman]

Parkinsonian Joe is senile

[Brett Bellmore]

I don't know for an absolute fact that he's senile; He could be suffering from localized TIAs, like the the ones they're pretending McConnell isn't suffering from.

I do know that nobody as old as either Biden OR Trump has any business running for President.

[Martinned]

Agreed. But the trouble is that the concerns about the candidates' mental acuity always seems to be distinctly one-sided.

[Joe_dallas]

Martinned 43 mins ago
Flag Comment Mute User
"Agreed. But the trouble is that the concerns about the candidates’ mental acuity always seems to be distinctly one-sided."

One sided - attempts to invoke the 25th
Yale pyschologist [?] proffering that someone was insane.

[Mr. Bumble]

Wish you would stop with the ageism. Biden was the same incompetent he is today forty years ago.

[Krychek_2]

You guys just keep mocking him, he'll just keep getting stuff done.

[Frank Drackman]

Getting stuff done? yeah right, like letting Amuricans get killed in Israel (and Syria, and Iraq, and Afghanistan, and if you count the Volunteers, in You-Crane) I forget, how many Hostages are still being held?

[Krychek_2]

Now that's a stupid comment even for you.

[Frank Drackman]

I'd say that too if I didn't have an intelligent response. So what's the Secret word today, Pee Wee?

[Krychek_2]

Frank, almost no one ever bothers giving you an intelligent response because you almost never say anything intelligent. Take this case as an example. It’s the logical fallacy of because there’s something he hasn’t accomplished, that therefore means he hasn’t accomplished anything. Further, what exactly is within his power to bring back the hostages that he’s not already doing? So why would I bother giving an intelligent response to anything as stupid as that?

There is such a thing as an intelligent conservative who makes lucid arguments and is worth talking to, even if I don’t agree with him on the merits. That’s not you.

You basically come here to pee in the sandbox that other kids are trying to play in.

[Frank Drackman]

I'm sorry, Parkinsonian Joe did give his "Thoughts and Prayers" for the 22 Amuricans killed on October 7th
At least 22 Americans have been killed in Israel as the Israel-Hamas conflict continues, according to the U.S. State Department.

"As we continue to account for the horrors of the appalling terrorist assault against Israel this weekend and the hundreds of innocent civilians who were murdered, we are seeing the immense scale and reach of this tragedy," President Joe Biden said in a statement on Monday.

The statement continued, "It's heart-wrenching. These families have been torn apart by inexcusable hatred and violence...My heart goes out to every family impacted by the horrible events of the past few days."

Frank

[Joe_dallas]

Krychek_2 1 hour ago
Flag Comment Mute User
"You guys just keep mocking him, he’ll just keep getting stuff done."

Right getting really good stuff done
1) Inflation facilitation act
2) facilitation of hamas and other terrorist funding via release of iran frozen funds.

[Krychek_2]

Inflation is coming down. In fact, the whole economy looks pretty good at this point, though you'd never know it listening to the Republicans. Have you seen his job numbers?

Those Iranian funds are being carefully monitored and only being disbursed for humanitarian purposes.

Next.

[Joe_dallas]

Krychek_2 2 mins ago
Flag Comment Mute User
Inflation is coming down. In fact, the whole economy looks pretty good at this point, though you’d never know it listening to the Republicans. Have you seen his job numbers?

Before or after the revisions?

[Joe_dallas]

Krychek_2 2 mins ago
Flag Comment Mute User
"Those Iranian funds are being carefully monitored and only being disbursed for humanitarian purposes."

Yeah right - if you say so

[Joe_dallas]

Joe_dallas 49 seconds ago
Krychek_2 2 mins ago
Flag Comment Mute User
"Inflation is coming down. In fact, the whole economy looks pretty good at this point, though you’d never know it listening to the Republicans. Have you seen his job numbers?"

The government quietly erased 439,000 jobs through November 2023, a closer look at the numbers from the Bureau of Labor Statistics shows.

That means its initial jobs results were inflated by 439,000 positions, and the job market is not as healthy as the government suggests.

Since the government wiped out 439,000 jobs after the fact, the total percentage of jobs created by the government last year is even higher.

Increased government hiring has been driving the jobs numbers higher.

What percentage of the actual job increases hav been government jobs ? something in the range of 40%-50%+

[Krychek_2]

Joe, suppose all the jobs created are government jobs. So what? The point is people are working, have money to spend, and are benefitting the economy. Candidly, you're going looking for reasons to discount his accomplishments.

With respect to Iran, yes, whether you choose to believe it or not there is a system of checks in place to guarantee it goes to humanitarian aid only, and the Iranian government is chafing under it.

[Joe_dallas]

Kreych2
You are living in a left wing delusional bubble if you believe that systems are in place and operating to prevent iran from funding additional terrorism from the release of funds. Its quite frankly a very delusional bubble.

You comment regarding the increase in government jobs being long term beneficial. Keynesian economics you subscribe to defend the increase in government jobs has two problems A) its nothing but a sugar high and B) shifting funds from the productive side of the economy to the less productive side of the economy. very little value added with those government jobs

[Krychek_2]

I’m inclined to trust the American intelligence agencies, who presumably know more about it than you do, about the Iran funds. Plus what would be Biden's motivation to fund terrorism? How does that help him?

With respect to government jobs, a lot of them facilitate private commerce and industry. Without air traffic controllers, for example, air traffic shuts down and takes a big chunk of the economy with it. Public works projects employ not just the people working on them, but the people supplying the materials, the people providing goods and services to the project, and the people providing security to the project. The list goes on. A lot of private sector jobs depend on government workers.

I’m not a pure Keynesian but there are things he was right about.

[Absaroka]

"Joe, suppose all the jobs created are government jobs. So what? The point is people are working, have money to spend, and are benefitting the economy."

Wait.

I'll grant that private sector jobs are necessarily benefiting the economy. Even if it is something I don't value - writing romance novels of pro football - if the business in question isn't going broke, society at large must be valuing their outputs more than their inputs.

But you can't assume that is true for government jobs. Government employees can certainly add value - firemen, air traffic controllers, and many more. Or the opposite - if the politburo increases the size of the NKVD tenfold, that is spending resources but not benefiting society. Even something morally neutral, like paying people to dig and fill in holes, might be a benefit in a depression, but be a detriment at other times.

[bernard11]

Plagiarism has been much in the news lately.

The New York Post:

The government quietly erased 439,000 jobs through November 2023, a closer look at the numbers from the Bureau of Labor Statistics shows.

That means its initial jobs results were inflated by 439,000 positions, and the job market is not as healthy as the government suggests.

Since the government wiped out 439,000 jobs after the fact, the total percentage of jobs created by the government last year is even higher.

Increased government hiring has been driving the jobs numbers higher.

Joe_Dallas, above:

The government quietly erased 439,000 jobs through November 2023, a closer look at the numbers from the Bureau of Labor Statistics shows.

That means its initial jobs results were inflated by 439,000 positions, and the job market is not as healthy as the government suggests.

Since the government wiped out 439,000 jobs after the fact, the total percentage of jobs created by the government last year is even higher.

Increased government hiring has been driving the jobs numbers higher.

[Tom for equal rights]

Krychek2

Seriously you believe Iran is being "carefully monitored" by our intelligence agencies to ensure those funds are being used to fund terrorism. With the level of appeasement that started with the Obama administration and appeasement that restarted with the Biden administration.

[Brett Bellmore]

I turn 65 this week, I'm allowed to be "ageist".

[Commenter_XY]

Happy Birthday. 🙂

[Stephen Lathrop]

Bellmore, I saw John Fetterman handle a long televised interview yesterday. Sharp as a tack. He conversed for about 10 minutes that I saw. Discussed his problems with depression post-stroke. Might have slightly botched about two syllables. Pretty good, I thought, for someone you decreed permanently impaired.

[Frank Drackman]

You're right.
Senator Fetterman's made an astounding recovery from his Stroke and has more balls than 99% of the Repubiclowns and 99.9% of the DemoKKKrats with his support of Israel. Now if he'd just dress like an Adult and ditch the Goatee he'd be perfect.

[Brett Bellmore]

Yeah, I'm glad for him that I was wrong about that, even though it wasn't prudent to bet on his having an unusually good recovery.

[Joe_dallas]

concur - not very common to have that strong of a recovery after that level of a stroke.

[Sarcastr0]

Buncha sudden doctors in this thread.

[Joe_dallas]

buncha responses from leftist who live in a bubble

[Don Nico]

Why criticize what seem to be fair and eve charitable comments?

[Sarcastr0]

Because people are making determinations about neurological recovery based on their asses.
Internet experts are bad, and should be pushed back on.

I also don't think it's charitable so much as grudging.

[Joe_dallas]

Sarcastr0 15 mins ago
Flag Comment Mute User
Because people are making determinations about neurological recovery based on their asses."

Both brett and I made our comments based on real world interactions with similarly situated individuals. Too bad your response is based on a leftist bubble and you chose to be an asshole.

[Nige]

'Leftist bubble' is a new one and you've already worn it out.

[Sarcastr0]

“real world interactions with similarly situated individuals” does not give you medical expertise.

You aren't actually even able to know what counts as similarly situated.

[David Nieporent]

Both brett and I made our comments based on real world interactions with similarly situated individuals.

Even if you're not lying about yourself, and you probably are, how can you possibly know that about Brett? And regardless, unless you're a neurologist, how many such individuals could you possibly have been interacting with? What makes you think that a couple of personal observations enables you to accurately assess that it's "not very common"?

[bernard11]

Joe and Brett are sometimes wrong, but never in doubt.

[David Nieporent]

concur – not very common to have that strong of a recovery after that level of a stroke.

Joe_dallas, Pretend Scientist, strikes again.

[Kazinski]

I'm glad to see it, and I'm glad he seems to be making a lot more sense than he did even before his stroke.

[Brett Bellmore]

Personality changes after bad strokes are pretty common, actually. Though for it to change for the better is a new one on me.

[bernard11]

Don't you have a neurology class to teach?

[Nige]

'Trump said that magnets stop working when you put them under water?'

I feel this has gotten lost in the meandering sniping, he really said that?

[David Nieporent]

No. He said they stop working if you get them wet. Like Gremlins.

[Nige]

Better not feed them after midnight, either.

[Voize]

There were two comments he made in Mason City on Friday that attracted attention.

One is clearly taken out of context, they quote him saying that people ask him how he puts on his pants. What he meant was that people ask how he manages to get up in the morning, given how challenging his day is likely to be.

But I don't know how to excuse the other quote. He was talking about the USS Gerald R. Ford, in particular about how they built it with magnetic-powered munitions elevators. The Ford-class uses electromagnets in a lot of places they didn't used to, like the launch catapults that were steam-powered on the Nimitz-class carriers, and they've had problems with these elevators for years. Trump's take was that the problem was ... water:

All I know about magnets is this, give me a glass of water, let me drop it on the magnets, that’s the end of the magnets.

[Absaroka]

That's probably true if you are talking about electromagnets 🙂

[Sarcastr0]

Salt water maybe?

[Absaroka]

Dunno. The Ford has lotsa electromagnetic stuff - the catapults as well, as opposed to steam, and they had trouble getting them going. Dunno if the problem is keeping seawater out, or just that they are big high energy devices that no one had tried before. A couple of months ago I saw a youtube vid interviewing an admiral who said the bugs were all getting worked out and it was going to be awesome. We'll see 🙂

[Estragon]

What if you drop the magnets into a nuked hurricane?

[Kazinski]

Here is the rough draft of my proposed brief to SCOTUS for Trump v Anderson.

The argument is solely my own, as far as I know. I haven’t seen any similar analysis, here or anywhere else, although it would not surprise me if it exists. And of course the conclusion that Section 5 limits enforcement of Section 3 to only the mechanisms provided by Congress is hardly unique to me.

The brief is about 1400 words, and I’ll split it up in 3 nested replies.

Anyone that wants to complain that I shouldn’t clutter an open thread with something this long, my only answer is anyone that doesn’t want to squander their time scrolling through pages of drivel shouldn’t come to a Volokh Open Thread in the first place.

And read the whole thing before sniping at it, I don’t actually get to Section 5 till near the end, and the conclusion is built on the beginning.

Part 1:

Only Congress Has The Power to Enforce Section 3 of the 14th Amendment

This brief argues that Section 5 of the 14th amendment reserves to Congress and Congress alone the power to pass legislation to enforce Section 3.

Congress exercised its Section 5 power to enforce Section 3 when it passed 18 U.S. Code § 2383 – Rebellion or insurrection

“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.)”

The argument that Congress alone can decide how Section 3 is applied is based on a reading of the Constitution that has its foundation on three propositions:

1. When a term is used in the Constitution repeatedly it should mean substantially the same thing wherever it is used, depending on context.
2. When Congress changes the wording of a phrase, using even one word’s difference, that word should be considered as altering the meaning, if it makes sense in context.
3. When Congress wishes to express itself clearly by changing the wording of a phrase used repeatedly in the Constitution, it will do so to make its meaning clearer.

I don’t think any of those propositions are particularly contentious.

[Kazinski]

Part 2

One particular phrase is used in the original Constitution eight times: “Congress shall have power…”. It is used three times in the original Constitution and five times in the Amendments. The first and most notable use of that phrase is in Article 1, Section 8:

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; “
….
And on through 15 paragraphs delineating the core of Congress’s exclusive and consequential power.

Then in Article 3, Section 3:
“The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”

And in Article 4, Section 3:
“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”

All the uses of the phrase “Congress shall have Power” in the original Constitution specify exclusive powers of Congress. While there might be peripheral issues such as the dormant commerce clause, or the extent that Congress may delegate its powers, there is little controversy that when Congress speaks within the bounds of its authority granted by the phrase “The Congress shall have power…” it preempts any other contradictory legislative or executive enactments on the subject.

There are 5 other uses of the phrase “Congress shall have power…” among the amendments. The first is in Section 2 of the 13th Amendment:

“Congress shall have power to enforce this article by appropriate legislation."

Its been asserted that the 13th amendment is self executing and its power is not exclusive to Congress. I'm no expert on the question and have no position on it, and it isn’t necessary to my argument. Although it is clear that no other authority may contradict legislation promulgated by Congress enforcing the 13th Amendment.

The same phrase used in the 13th amendment is used in the 16th Amendment in different form:
"The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."

There is no controversy that the power granted by the 16th amendment is exclusive to Congress.

The 19th, 23rd, 24th, 26th uses the almost the same exact phrase used in the 13th amendment. The addition of the word “The” before the word Congress doesn’t alter the meaning because there is obviously only one Congress referenced in the Constitution.

“The Congress shall have power to enforce this article by appropriate legislation."

While the States certainly have passed legislation implementing at least some aspects of those amendments, there is little doubt that when Congress speaks it is preeminent when passing legislation enforcing those amendments, and the states may not contradict Congress or substantially alter its enactments.

[Kazinski]

Part 3

Now we come to one of the three instances where Congress uses a different form of the phrase, which does modify its meaning. Here is Section 2 of the 18th Amendment:

“The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.”

Congress’s power to enforce the 18th amendment is not exclusive, and while 18th amendment law is hardly a hot topic recently, I think the phrase “the several States shall have concurrent power’ makes it clear that Congress’s power is not preeminent in 18th amendment law, at the most it is first among equals. Congress showed unmistakably that it was capable of crafting an enforcement section that gave power to the states to enforce an constitutional amendment on their own.

Finally we come to the Section 5 of the 14th Amendment, another of the 3 outliers that uses different language than the familiar “Congress shall have power…”, and there is a meaningful but subtle difference in the wording used previously. The enforcement section of the 15th Amendment uses the exact same language as the 14th Amendment, and it is the only two places this version of the phrase appears in the Constitution:

“The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”

Adding the word “the” to modify “power” is significant, “the power” is singular and it indicates it is only Congress’s. The 14th amendment was proposed just 6 months after the 13th amendment. So the question has to be answered, why did Congress change the wording for the 14th, and the 15th amendment, from “Congress shall have power…” to “Congress shall have THE power…”

The only answer that makes sense is Congress wanted to leave no doubt that it reserved the power to enforce the 14th amendment including Section 3 to itself alone.

Congress exercised “the power” to enforce Section 3 of the 14th amendment when it criminalized insurrection and made anyone convicted of Insurrection “incapable of holding any office under the United States.”. Regardless of whatever “any office under the United States” may mean, it does require a person to be convicted under the Insurrection Statute to be made incapable of holding such office.

Conclusion

When the Constitution uses the phrase “Congress has power” the presumption should be that Congress’s grant of power is preeminent. That is not to say that the states cannot legislate supporting legislation, or state officials cannot issue regulations or make decisions conforming to the legislation Congress passes. However no other authority may contradict, narrow, or replace the enactments of Congress..

Congress has passed a statute making Insurrection a federal crime requiring a guilty verdict by a jury of peers, and none of the penalties, fines, imprisonment, and disqualification from offices under the United States, can be applied to any person not convicted under 18 U.S. Code § 2383 – Rebellion or insurrection.

Section 5 of the 14th Amendment states that “Congress shall have the power” to enforce Section 3, for the first time using that more determinate phrase rather than the less assertive “Congress shall have power”, which already conveys a strong presumption that Congress’s power is exclusive.

There is no room left by Section 5 for independent enforcement of Section 3 of the 14th Amendment by state authorities using a different mechanism of enforcement than what Congress enacted in “18 U.S. Code § 2383 – Rebellion or insurrection”.

In short: any clause or amendment that is within the scope of the phrase “Congress shall have power” and especially “Congress shall have the power” is presumptively non-self executing and it is Congress’s power alone to enact the means to execute or enforce the article.

No one disputes, that when Article 1 states “The Congress shall have Power to … Declare War…” the power is Congress’s alone.

There is nothing in the Constitution that would support a different conclusion when Section 5 states ”The Congress shall have the power to enforce, by appropriate legislation…” Section 3 of the Fourteenth Amendment.

——-

[Mr. Bumble]

Do you plan to submit it to the court?

[Kazinski]

No. If someone wants it they are free to use it although I would ask they provide a link to the first comment in the sources or footnotes:

https://reason.com/volokh/2024/01/08/monday-open-thread-34/?comments=true#comment-10389179

[Krenn]

"No one disputes, that when Article 1 states “The Congress shall have Power to … Declare War…” the power is Congress’s alone."

Actually, I do dispute that. I maintain that if any OTHER country takes actions which are equivalent to declaring war AGAINST the United States, that the President has every right to publicly declare that a formal state of war now exists, because the other country started it, and to order massive counter-attacks to begin WITHOUT talking to Congress first.

[Brett Bellmore]

But that's no the power to declare war, which is to say, to start one. It's more akin to the enumerated power of states under the Constitution to repel invasions unless the President approves of them.

[Kazinski]

I think you are confusing the power to "Declare War" with the power to wage war.

We've had a lot of presidents decide they had the authority to wage war without ever claiming the right to "Declare War".

[Krenn]

Hypothetically, if FDR had received absolutely iron-clad intelligence that Japan was currently sailing towards Pearl Harbor with intent to bomb it in the next 24 hours….

I maintain that FDR would have been entirely justified in secretly ordering Pearl Harbor to launch naval bombers at the Japanese Fleet FIRST, timed for the worst possible moment from the Japanese perspective to suddenly be forced to defend against air attack.

And then, once the first bombs went in, FDR could have gotten on the radio, and informed the nation that FDR had just declared war against Japan, because Japan was attempting to launch a surprise attack against the US, and that the USA was now locked into a formal state of war with Japan for the next several years, whether congress liked it or not.

Alternately, if Japan’s plan to send a formal declaration of war through the Japanese Embassy to America had not fallen through, and that warning had actually arrived EARLY… FDR would have been justified in calling an emergency meeting of congress, and then INFORMING them that Japan had just declared war, and that therefore FDR was recognizing that a state of war now existed, and that Congress’s opinion on whether or not a state of war SHOULD exist was now entirely irrelevant. A formal, legal, constitutional state of war now DID exist, despite the complete lack of any congressional vote on the subject.

Congress would still have the power to authorize, or not authorize, stuff like increased spending and mandatory arbitration of a strike threats, but that’s not the same thing as ‘declaring war’.

Just because Congress ‘shall’ have the power to declare war, does not mean that ONLY Congress can declare war. The enemy gets a vote.

On the other hand, it does mean that Congress has large amounts of authority to outline what ‘declaring’ a ‘state of war’ actually MEANS, in terms of national mobilization policy and stuff.

Although I guess technically Congress does still have the power to sue for peace, so they could always just try to stop the war by surrendering to Japan. I guess that option is technically on the table.

[Brett Bellmore]

"Just because Congress ‘shall’ have the power to declare war, does not mean that ONLY Congress can declare war."

It does mean, however, that only Congress, in the US government, can declare war.

In your scenario, FDR would have requested that Congress so declare, not purported to declare it himself.

[Absaroka]

"FDR would have requested that Congress so declare, not purported to declare it himself"

Indeed, that is what he did in his Dec 8th address:

"I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December 7th, 1941, a state of war has existed between the United States and the Japanese empire.”

n.b. that this doesn't prevent a president from taking necessary military action; from the same speech:

"As Commander in Chief of the Army and Navy, I have directed that all measures be taken for our defense."

And, indeed, the order to conduct unrestricted submarine warfare against Japan had gone out on the afternoon of the 7th, for one example.

[Kazinski]

Well as I said above, that exercising the power to wage war, not the power to declare war.

[DaveM]

I think you have a good argument from a layman’s point of view. However, a finding of criminal insurrection is not necessary to the Democratic Party’s efforts to avoid facing Trump at the polls. As the Maine Secretary of State demonstrated, Trump can be found “administratively” guilty, no trial needed. The SoS declared that her decision was that Trump lied when he filled in his application form to appear on the ballot, and was therefore disqualified. The disqualification was for LYING on a form, NOT for being guilty of insurrection.

Trying this in an administrative hearing sidesteps all these Constitutional textual arguments, it seems to me.

[Martinned]

Trying this in an administrative hearing sidesteps all these Constitutional textual arguments, it seems to me.

Which text of the Constitution, specifically?

[Frank Drackman]

Article 4, Section 4, (the "Fo-Fo" clause)
"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."

Some un-erected Judge deciding who's on the ballot doesn't sound like a "Republican Form of Government" in my book.

Frank

[Michael P]

Government officials are not actually allowed to "sidestep" the Constitution's limits by declaring that they're simply violating it "administratively".

[Martinned]

Which Constitutional limit, specifically, do you believe has been violated?

[Frank Drackman]

Article 4, Section 4, (the “Fo-Fo” clause)
“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

Some un-erected Judge deciding who’s on the ballot doesn’t sound like a “Republican Form of Government” in my book.

Frank

[Michael P]

SCOTUS has held that the Constitution's list of qualifications is exhaustive (although has only spoken authoritatively as to Congress: Powell v. McCormack and U.S. Term Limits, Inc. v. Thornton). A Secretary of State or state court cannot disqualify a candidate because they think he lied. "[T]he right to choose representatives belongs not to the States, but to the people"; this extended to the Senate after the Seventeenth Amendment, and every state uses the same approach for choosing electors -- they only differ as to appointing all electors for the candidate (slate of electors) getting the most votes or appointing them proportionally to election results.

[Martinned]

True, and one of the qualifications listed in the Constitution is "didn't participate in an insurrection". So I'll ask again, which part of the Constitution troubles you?

[Mr. Bumble]

Now if there had only been an insurrection that might matter.

[Martinned]

Indeed. And if that's what Michael had replied that would have been fair enough.

[Michael P]

I didn't mention it directly because DaveM didn't say the Maine SoS used that as a rationale:

The SoS declared that her decision was that Trump lied when he filled in his application form to appear on the ballot, and was therefore disqualified.

[Martinned]

@Michael: I assume that the thing he allegedly lied about is the insurrection point? In which case my point stands.

[Michael P]

If that was the logic, "Trump lied [...] and was therefore disqualified" was an awful way to express the decision.

She's also not administratively empowered to declare that he's under 35 years old.

[Martinned]

She’s also not administratively empowered to declare that he’s under 35 years old.

If that is true, Trump's lawyers should have a laughably easy time getting this sorted out in court.

[Dr. Ed 2]

The Dumb C*nt is going to be impeached for that.

[Nelson]

Is that more likely than Civil War 2, or less?

[Magister]

The SoS declared that her decision was that Trump lied when he filled in his application form to appear on the ballot, and was therefore disqualified. The disqualification was for LYING on a form, NOT for being guilty of insurrection.

This does not appear to be true; Bellows has said the decision followed from Maine law (requiring the Secretary of State to make a decision that can then proceed to judicial review) and the Fourteenth Amendment.

[not guilty]

No claim that it depends on what the definition of "is" is?

[David Nieporent]

1) Your premise that all the uses of "Congress shall have power to do X" mean "exclusive power" is unsupported. You try to support it by saying that when Congress uses this authority, "it preempts any other contradictory legislative or executive enactments on the subject." But that preemption is the result of the Supremacy Clause, not any supposed exclusivity. And of course we're not discussing contradictory state policy here, so it's irrelevant.

(You don't even believe this argument, since you concede, "That is not to say that the states cannot legislate supporting legislation, or state officials cannot issue regulations or make decisions conforming to the legislation Congress passes.")

2) There is no support for the claim that § 2383, which covers different people and has different elements, was an attempt to implement A14S3 via A14S5. You don't provide a single contemporaneous (or otherwise) source supporting that. And you take a second leap when you argue that Congress intended for this to be the exclusive way to implement A14S3.

The different elements thing that lawyers here keep harping on is crucial: A14S3 says that people who meet all of criteria A, B, and C are ineligible. § 2383 says that people who meet criteria B and C are ineligible, even if they don't satisfy A. (A in this case being a former oath-taker.) One can't implement a rule by enacting a policy that's broader than the rule and therefore not justified by it.

Moreover — as noted many times — it's undisputed that A14S3 was meant to apply to the rebel traitors. And yet they never prosecuted any of these people under the predecessor statutes to § 2383. It makes little sense to suggest that they enacted this provision and then immediately passed a law that sub silentio repealed it.

3) Your reliance on the word "the" is cute, but you once again supply nothing in support of your theory — nothing contemporaneous or otherwise to suggest that this is why they chose that phrasing — and it's again a Secret Code Word argument.

Moreover, it runs aground on the same rocky shores that all these other narrow interpretations of A14S5 do: that provision applies to the entire 14th amendment, not just A14S3. So if Congress had the exclusive power to legislate on A14 based on the word "the" in S5, then states could not protect the due process or equal protection rights of their citizens because those rights are found in A14S1.

4) Your 18th amendment argument is cleverer, but an amendment passed fifty years later cannot shed light on what people meant decades earlier (especially since they were virtually all dead by then!) At most it could show what people in 1917 thought that the 14th amendment meant, not what the framers of the 14th actually meant. And it's a theory that like your others suffers from lack of any evidence. You don't cite a single person in 1917 saying, "We'd better add the word 'concurrent' or states will lose any power to regulate alcohol."

​
​
There's a common theme in my comments above: evidence (or lack thereof). What you've done is start with a conclusion and work backwards to come up with arguments that possibly could support it, and throwing stuff at the wall to see if anything sticks. There's nothing wrong with that for a brainstorming session, but for it to be an actual amicus brief you would actually need to supply the evidence I identified as lacking in each of those paragraphs. For all the flaws of the Blackman-Tillman hypothesis, they at least do attempt to marshal evidence about the contemporaneous usage of the "office" terms in question. That's what you would need to do.

[not guilty]

Like too many commenters on these threads, Kazinski seems to mistake Otto Hizazz and ipse dixit for legal authorities.

[Kazinski]

Well actually I didn't start with that conclusion, I actually started with a completely different conclusion, which is much closer to your own: that the Maine Secretary of State had concurrent authority to enforce A14S3.

But if that's the case and "Congress shall have the power" is not an exclusive grant of power then I thought I would compile all the powers of Maine's Secretary of state by searching through the Constitution for the phrase 'Congress shall have power' because that is the term the framers used when defining the concurrent powers of Congress and Maine's Secretary of State.

When I got to "Maine's Secretary of State shall have the power to Declare war", I begin to suspect I was on the wrong track and maybe that particular wording might mean that the power was Congress's alone, me being a stickler for consistency.

However I admit there is some historical support that the Secretary of State of Maine does have the power to Declare War, since the Battleship Maine effectively started the Spanish American War, that's a hard precedent to totally discount.

Now you are fully cognizant of my intellectual journey and state of mind in crafting my "brief", and that at least we started at the same place, namely: 'Congress shall have the power' is the term the framers used when defining the concurrent powers of Congress and Maine's Secretary of State.

[Noscitur a sociis]

.

When I got to “Maine’s Secretary of State shall have the power to Declare war”, I begin to suspect I was on the wrong track and maybe that particular wording might mean that the power was Congress’s alone, me being a stickler for consistency.

The limitations on Maine officials’ warmaking powers are expressly enumerated in Article I, Section, not implicitly stated in Section 8.

[Stephen Lathrop]

Funny thing there Nieporent. You just made an argument about rigor in legal analysis. I apply essentially the same argument to rigor in historical analysis, and you mock it. Pretty peculiar. Are you really convinced that law is a profession with canons to govern its practice, but historical scholarship is not?

[David Nieporent]

My argument was "You need evidence for your propositions." Your argument was "One needs specialized training in esoteric mind reading before one can understand what textual evidence says."

[Stephen Lathrop]

Nieporent, love those quote marks. Don't go looking for anything I said in the nonsense between them.

[Unlikely Gas]

Some sleuths on Reddit have proven you wrong: https://decivitate.substack.com/p/who-misquoted-the-14th-amendment

One person went to the trouble of tracking down the entire legislative history and discover what you quote as “the power” is actually only “power”, reading “The Congress shall have power to enforce, by appropriate legislation the provisions of this article.”

Your entire legal argument is broken.

[Noscitur a sociis]

.

There is no controversy that the power granted by the 16th amendment is exclusive to Congress

Hahaha what???

[David Nieporent]

Yeah, I missed that specific howler.

[Kazinski]

The power granted under the 16th amendment is exclusive to Congress, and to any claim to the different is a howler.

Wisconsin's state constitution was all the authority needed to grant power to Wisconsin's legislature to implement its own income tax.
Wisconsin implementated the first state income tax a few years before the 16th amendment was ratified, and as far as I know it was never challenged under the US Constitution, even though a national Civil War income tax had been struck down decades before.

You guys should look up federalism.

If the 16th amendment were repealed state and local income taxes would be unaffected.

[Noscitur a sociis]

I’m afraid you’ve lost me.

If the sixteenth amendment’s grant of authority to congress doesn’t limit state power, why does the fourteenth amendment’s?

[Kazinski]

Somebody is going to start to suspect I am paying you to lob these softballs at me.

Section 1 of the 14th limits the States power because it says "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;"

The 16th Amendment voids Article 1 Section 9 clause 3, which of course being in Article 1 was never held to be a restriction on the states, only Congress:
"[No Capitation, or other direct, Tax shall be laid, unless in
Proportion to the Census or Enumeration herein before
directed to be taken.]"

How could the 16th amendment either enhance or limit States power when the clause it voided never was held to apply to the States in the first place.

I really do appreciate the questions, I feel like Biden does when CNN lobs a question he's had 3 days to study up on first.

[not guilty]

Supreme Court Rule 37(1) provides that an amicus curiae brief may be filed only by an attorney admitted to practice before the Court.

What is your date of admission, Kazinski?

[Mr. Bumble]

I asked if he planned to submit it and his reply was "no".
What's your problem?

[not guilty]

An amicus curiae brief, not submitted to a court, is not an amicus curiae brief.

Kazinski has a well-known problem telling the truth. Calling his screed an amicus curiae brief is just another falsehood.

[Mr. Bumble]

Wow, just wow. That is some wild hair you have growing up your ass.

[Bwaaah]

Nowhere did Kazinski suggest that was an "amicus curiae" brief. YOU created a MYTH solely to dismiss an argument, a reasoned argument, without any basis other than your fabricated myth.

Wow. Just wow.

[Don Nico]

ng,
I think that your criticism is not fair. Kazinski had posted in the pat week that he would post the outline of an amicus curiae brief that he would file IF he were an attorney to appeal to the Court, BUT he is not so admitted.

[Kazinski]

What i said is: "Here is the rough draft of my proposed brief to SCOTUS for Trump v Anderson."

And lets make one thing clear, no matter how much space I am taking up in your head, I'm not paying rent.

[not guilty]

A dilettante who dabbles in imitating lawyers who know what they are doing should hardly object to a bit of mockery.

[TwelveInchPianist]

Are you suggesting that Kazinski is less capable of practicing law than you are?

[not guilty]

Uh, no. Why on earth would you ask such a foolish question?

[Kazinski]

Well I will concede that he's better at practicing law, I am retired computer programmer, not a lawyer.

But I will assert I'm probably better at logic.

[not guilty]

One principle common to both law and logic is, don’t make shit up. On that point, sir, you are demonstrably challenged.

[OtisAH]

*blinks in Jesus Fucking Christ*

Yet another reason for people to never say or believe they have heard or seen everything.

[Randal]

Dang! On Saturday you told me that this terrible argument wasn't your Monday surprise, but surprise, it is. How disappointing.

[Kazinski]

Well you mistake my argument then.

My argument is that when the constitution uses the phrase "Congress shall have power" and especially "Congress shall have the power", that the power is exclusively Congress's, whether or not they choose to exercise it. That's a much bigger argument and while it reaches the same result, I don't recall me or anyone else making that argument in these threads.

[Josh R]

"Congress shall have power to lay and collect taxes," and the states don't?

[Kazinski]

Congress is the only entity that can lay and collect taxes under the US Constitution which has national scope.

The states may lay and collect taxes under their own constitution, which I suppose the US Constitution could ban, or modify, but has never done so, but since state constitutions authorized laying and collecting taxes since before the US Constitution was drafted their authority is independent of the US Constitution, even though they can't contradict it.

Which is illustrated by the fact federal courts almost never weigh in on questions of state law and state constitutions, unless they conflict with federal law and the US Constitution.

Federalism:
"Federalism is a system of government in which the same territory is controlled by two levels of government. Generally, an overarching national government is responsible for broader governance of larger territorial areas, while the smaller subdivisions, states, and cities govern the issues of local concern."

[Josh R]

The text doesn't include "of national scope."

[Kazinski]

So what is the state constitution and the legislature for?

For instance the Massachusetts 1780 Constitution predates the constitution and authorizes a tax scheme that is barred to Congress by the US Constitution.

Article IV:
"and to impose and levy proportional and reasonable assessments, rates, and taxes, upon all the inhabitants of, and persons resident, and estates lying, within the said commonwealth; and also to impose and levy reasonable duties and excises upon any produce, goods, wares, merchandise, and commodities whatsoever, brought into, produced, manufactured, or being within the same"

The Massachusetts legislature needed no federal grant of authority to lay or collect taxes before or after the Constitution was ratified.

[David Nieporent]

So what is the state constitution and the legislature for?

You are the one who claimed that if the U.S. constitution says that Congress has power to do X then this means it's an exclusive power and states cannot exercise it. Have you forgotten your own "amicus brief" already?

[Kazinski]

Yes. Try to think slowly Dave so you can understand.

A federal power to tax, is a separate power, than the state power to tax.

One clear example is Maryland can set different tax rates than Maine.

But the federal government has to set the same tax rate for Maine residents than Maryland.

The US Constitution both grants and denies power to Congress. And it does at times constrain the states. But it doesn't grant any power to the states.

Why?

Because the states get their own grant of power from their own constitutions.

One example NFIB held that the federal government could tax people without health insurance, but not mandate it and impose a penalty.

States can mandate health insurance coverage, because the states don't get their powers from the federal constitution. They get their powers from the state constitution and don't require any federal grants of power to tax, imprison, or regulate their citizens. And in some areas have greater powers than the federal government.

Another example is the 55 mph speed limit. The federal government didn't pass a law that said the speed limit was 55. They passed a law that said to get federal highway funds the states had to pass laws limiting the speed limit to 55.

Why did the states have direct power and the federal government didn't? Because the states don't derive most of their power from the US constitution, they get it from their people and their state constitution.

[Kazinski]

Actually I think there are two instances where the federal government grants power to the states, appointing officers to the militia, and the 22nd amendment, and of course the void 18th).

[Josh R]

.

A federal power to tax, is a separate power, than the state power to tax.

In order for your textualist “Congress shall have [exclusive] power” theory to be correct you have to amend this non-textualist “separate power” as an exception. Additionally, you had to amend a non-textualist exception that permits courts to invalidate laws which violate Section 1 of the Fourteenth Amendment. You might think these exceptions call into question your theory.

I’m genuinely mystified and appalled by the lack of understanding of a fundamental feature of our system of government, federalism and dual sovereignty,

We all recognize and understand federalism. What you keep missing is your textualist “Congress shall have [exclusive] power” theory is undermined by our system.

[Kazinski]

Here's an oldie but a goodie from a law review article:

"The property tax is the only tax which can be imposed by the states and their subdivisions which cannot be likewise imposed by the Federal government. "
https://www.repository.law.indiana.edu/cgi/viewcontent.cgi

Which of course means that the states cannot get their taxiǹg authority from the same grant of authority as Congress, or their scope of taxing authority would be the same unless explicitly noted.

I really shouldn't be spending so much time on this, but I'm genuinely mystified and appalled by the lack of understanding of a fundamental feature of our system of government, federalism and dual sovereignty, and not just by you.

[Randal]

Well you mistake my argument then.

I don't think so. It's actually not bad until you get to the punch line...

Congress exercised “the power” to enforce Section 3 of the 14th amendment when it criminalized insurrection

Just a totally unsupported assertion that makes no sense and undermines everything that came before it. The same assertion you've been making for weeks.

You should try a version that ends with there being no implementing legislation, leaving 14/3 inert. It's still wrong, but at the same time, it's at least coherent-ish, and as such a plausible emergency exit for SCOTUS.

[Brett Bellmore]

Nothing incoherent about it. Indeed, Congress had to be exercising that power when it criminalized insurrection, because the federal law against insurrection imposes penalties that would be beyond Congress' enumerated powers if not for Section 3.

Congress can't add qualifications for office even to federal offices, let alone state, and yet the federal insurrection law does exactly that: Not being guilty of insurrection becomes an additional qualification for office!

That had to come from Section 3, or else the federal insurrection law is, to that extent, unconstitutional.

[Randal]

Congress can’t add qualifications for office even to federal offices

Totally wrong. Congress can’t add qualifications for elected positions, whose qualifications are already specified in the Constitution, but it can add qualifications for the vast majority of federal offices that it created in the first place. (All of them in fact, if you think elected positions aren’t “offices.”) But you’re right that the insurrection statute wouldn’t prevent Trump from becoming President, even if he were convicted of insurrection! That criminal penalty would be unconstitutional in that application.

And the insurrection statute doesn’t even purport to disqualify people from state offices, yet another way it’s a poor match for 14/3. It would leave the state half of 14/3 unimplemented.

[ObviouslyNotSpam]

(Unthreaded response to Kazinski)

“But Congress may by a vote of two-thirds of each House, remove such disability.”

So, what you really mean is that Congress shall have [absolutely all] the power to enforce Section 3 of the 14th Amendment, EXCEPT to remove the disqualification from insurrectionists, which Congress may NOT modify in any way which diminishes the 2/3 voting requirement provided in Section 3 to remove it.

Is that compatible with your reading of Section 5?

Also, in case you missed it, Congress had actually passed legislation making “insurrection” a federal crime years before the 14th Amendment had even been proposed. Congress did not wait until 1948(!) to make insurrection a crime, so obviously when they did so in the Second Confiscation Act in 1862, which was signed into law by President Lincoln during the Civil War, it could not possibly have been done to “enforce” the 14th Amendment under Section 5.

[Kazinski]

I'm not sure any of that matters to my analysis.

The core of my analysis is the phrase "Congress Shall have power" or "Congress shall have the power" grants that power exclusively to Congress.

Article 1 says "The Congress shall have Power To lay and collect Taxes,"

If Congress doesn't pass a tax bill does that mean the President (or Maine's Secretary of State for that matter) can lay and collect taxes?

No, it's Congress's power alone whether they choose to use it or not.

Section 5 says "Congress Shall have the power" to enforce section 3. They did pass a revised statute to replace the Insurrection statute of 1862 which has significant differences from the current statute:

"SEC. 2. And be it further enacted, That if any person shall hereafter incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States, or the laws thereof, or shall give aid or comfort thereto, or shall engage in, or give aid and comfort to, any such existing rebellion or insurrection, and be convicted thereof, such person shall be punished by imprisonment for a period not exceeding ten years, or by a fine not exceeding ten thousand dollars, and by the liberation of all his slaves, if any he have; or by both of said punishments, at the discretion of the court.

SEC. 3. And be it further enacted, That every person guilty of either of the offences described in this act shall be forever incapable and disqualified to hold any office under the United States."

[Martinned]

That implies that the courts were powerless to apply the equal protection clause before Congress passed civil rights legislation. That's quite a conclusion.

[Kazinski]

No it doesn't. There is this, although I should have added judges:
"That is not to say that the states cannot legislate supporting legislation, or state officials cannot issue regulations or make decisions conforming to the legislation Congress passes. However no other authority may contradict, narrow, or replace the enactments of Congress."

Judges of course could strike laws violating the 14th amendment.

Of course Judges can also decide to gut the 14th amendment like they did with the Slaughterhouse cases, and Plessy. And I concede that's a counter factual to my argument, but hardly fatal.

[Martinned]

Hang on, so judges can strike down laws violating the 14th amendment without any legislation from Congress authorising them to do so, but they cannot block an ineligible candidate from running for office?

[Kazinski]

Sure they can.

If Donald Trump comes into their court and is properly charged and convicted of insurrection then the judge can disqualify him.

That's how Congress used the power to enforce section 3.

That's how our system works.

And actually judges don't strike down laws, they declare them unenforceable when they conflict with the Constitution.

After the 16th amendment was passed could a judge implement an income tax under the theory that if Congress didn't do it someone had to?

[Martinned]

Ah, so you're not arguing that Section 3 isn't self-executing at all? Then why did you waste so many column inches above purporting to do the opposite? You're just arguing the - equally nonsensical - point that a criminal conviction is somehow required.

[Kazinski]

I am arguing it isn’t self executing.

But I’m not arguing that it repealed Article 3 of the Constitution, or voided Marbury v Madison. Or repealed the Supremacy clause.

The judicial power has always included the power of judges to set aside laws that conflict with the Constitution.

And my theory leaves that judicial power unscathed.

[Martinned]

The judicial power has always included the power of judges to set aside laws that conflict with the Constitution.

That's what self-executing means.

[Michael P]

No, self-executing means it does not need separate statute or regulation before it applies. For example, there's case law about when a treaty is self-executing.

[Martinned]

@Michael. Yes, that's what Kazinski is describing: "the power of judges to [stop people from doing things] that conflict with the Constitution."

[Kazinski]

No. That’s what the Supremacy Clause means.

Alexander Hamilton in Federalist 78 explains the Supremacy Clause: “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid.”

He didn’t seem to think self executing has anything to do with it.

But if it makes you feel better you can call the Supremacy Clause self-executing, be my guest.

[Martinned]

That's what the Supremacy Clause means when you combine it with a clause in the Constitution that is self-executing.

[Kazinski]

It's ridiculous on its face to call section 3 self executing.

Why? Because Congress tacked on Section 5 to give itself "the power" to enact laws to execute it.

[Martinned]

No, the drafters of the 14th Amendment tacked on a power for Congress to make further rules *for the entire Amendment*, just like they did around the same time for the - equally self-executing - 13th and 15th Amendments.

[Randal]

Kazinski has been confused for a while now about the difference between "not self-executing" and "requires a conviction."

[Davy C]

Maine certainly can, and does, collect its own taxes regardless of what taxes Congress does or does not pass. Any reading of the Constitution which declares state taxes to be illegal is not going to be one the courts will adopt.

I would argue that states can use whatever method they want to select their electoral college members, and that includes letting the people vote but excluding candidates the state has determined to be insurrectionists.

[Kazinski]

See above where I discuss federalism. The tenth amendment is a great example of the principle that state power does not generally depend on grants from the US Constitution but is their own independent, even though it is constrained by the Supremacy Clause.

But probably article 2 of the articles of confederation explains the principle best:

"Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled".

[Stephen Lathrop]

But Congress may by a vote of two-thirds of each House, remove such disability.

What I don't get is why if Congress has exclusive enforcement power, there would be any disability for Congress to remove, except a disability Congress had created in the first place. And if it were a disability Congress created, why would it require a two-thirds vote to remove it?

Note that in other instances where the Constitution requires super-majorities, the subject matter is almost always (is it actually always?) on account of sovereign power implications—constitutional amendments, for instance, or impeachment convictions, which alter previous constitutive power decrees made by elections).

Seems to me like that two-thirds vote for disability removal specifically contemplates a disability applied administratively in the first place. Then, if the will of the jointly sovereign People requires it, the super majority authorizes a sovereign power delegation to Congress, potentially to be used as sovereign oversight of the administrative action.

More generally, it seems like in instances where the Constitution requires a super majority in congress, the evident intent uniformly was to assure better-than-majority support among the people. By that method, the Constitution assured that the jointly sovereign People did stand behind what Congress did. Doing it that way would thus stand as a guard against the happenstance that Congress might illegitimately, or even unintentionally, invade sovereign power.

[Kazinski]

"Seems to me like that two-thirds vote for disability removal specifically contemplates a disability applied administratively in the first place."

No because you are forgetting Congress already had a criminal statute in place to punish insurrection with disqualification.

My own thought is they wanted to have a mechanism for removing the disability imposed by the courts by the insurrection statute, but wanted to make sure a presidential pardon couldn't remove the disability.

And as for why Congress didn't immediately revise the 1862 statute after the 14th amendment was ratified, its probably because by then it was largely moot.

When Congress proposed the 14th amendment and section 3 June 13, 1866, the prospect of Rebels assuming office seemed urgent to address. By July 9, 1868 when the 14th Amendment was ratified, with reconstructed state governments sending 16 Black Congressman to Washington and over 600 Black State Legislators in the state houses, the issue had definitely faded.

[David Nieporent]

My own thought is they wanted to have a mechanism for removing the disability imposed by the courts by the insurrection statute, but wanted to make sure a presidential pardon couldn’t remove the disability.

Yet another hypothesis lacking any evidence of any sort. Can you find a single quote from anyone saying that? And if that were actually their reasoning, wouldn't it have been easier to just say it in the text? "…but a presidential pardon shall have no effect on such disqualification."

[Kazinski]

Well to that I would say two things, I wrote my "brief" in a few of hours, not months of scholarship, I suppose that would be apparent. Its a textual argument and my only source was the text of the constitution.

And often people use different words, to say something other than what you would choose, but if they did say "but a presidential pardon shall have no effect on such disqualification.” and also "But Congress may by a vote of two-thirds of each House, remove such disability." too, because they also wanted their own process for removing such disability. So it wouldn't have been easier.

[Stephen Lathrop]

Kazinski, I'm not following you. Can you explain again why a two-thirds majority requirement is needed? I interpret it to mean the drafters of the amendment wanted strongly to defend against insurrectionists. They made it easy to administratively block insurrectionists from office, and hard for Congress to overturn administratively-decreed disabilities. That seems a simple way to understand the structure of the amendment.

Evidence in support of that hypothesis comes from both the historical context, and from the early history of enforcement. If it is constitutionally legitimate, seems logical, and in accord with the context, and supported by practice, what gives rise to any need to cut a special deal for Trump?

[Kazinski]

I don't know why they wanted to make it 2/3s, obviously it does make it harder to remove the disability, but I think the main reason is so a presidential pardon could not remove the disability.

If as you assert that Congress wanted to strongly defend against insurrectionists, what better way than to make it a criminal statute?

Which they actually did.

[Stephen Lathrop]

What? What makes you think 2/3s constrains a presidential pardon?

If as you assert that Congress wanted to strongly defend against insurrectionists, what better way than to make it a criminal statute?

That makes it harder, not easier. Criminal proof beyond a reasonable doubt is a much higher bar.

[bernard11]

Article 1 says “The Congress shall have Power To lay and collect Taxes,”

Do you think that means state legislatures can't "lay and collect Taxes?"

[Kazinski]

I'm appalled at the level of ignorance here about one of the basic principles of our system of government.

Hopefully this isn't a completely new topic for you:
http://www.law.cornell.edu/wex/federalism

[ObviouslyNotSpam]

You said: "Section 5 says “Congress Shall have the power” to enforce section 3. They did pass a revised statute to replace the Insurrection statute of 1862 which has significant differences from the current statute:"

Indeed, but in view of the fact that Congress had already passed a law in 1862 that had established criminal liability for "insurrection", what additional "power to enforce, by appropriate legislation, the provisions of" the 14th Amendment did Section 5 thereof confer upon Congress? Arguably, Congress already had all the power it needed to enforce any and all laws prohibiting insurrection it might have reasonably desired.

One notable difference between the 1862 statute and the 14th Amendment is that the 1862 statute, unlike the 14th Amendment, did not include Congress' ability to remove with a 2/3 vote the disability from anyone so disabled from holding such office--in fact, the 1862 statute proscribed such persons from holding such offices "forever". Did Congress have the power in 1862 to prohibit insurrectionists from holding office "forever"?

Assuming it did, Article 3 of the 14th Amendment therefore actually REMOVED "the power" of future Congresses to remove, by appropriate legislation, the disability from insurrectionists by, let's say, a majority vote. Or by providing that the President could remove it. Or a parole board, or whatever. No, according to the 14th Amendment, only by Congress itself, and only by a 2/3 vote of both Houses, could the disability be removed...

As an aside, one year after the 14th Amendment was adopted, in 1869, Congress passed the first Amnesty Act (which removed "all political disabilities imposed by the third section of the fourteenth article of amendments of the Constitution of the United States" from most former Confederate officials and soldiers). Did Congress just not understand that such disabilities had not been "imposed by the third section of the fourteenth article of amendments" at all?

[Kazinski]

"As an aside, one year after the 14th Amendment was adopted, in 1869, Congress passed the first Amnesty Act (which removed “all political disabilities imposed by the third section of the fourteenth article of amendments of the Constitution of the United States” from most former Confederate officials and soldiers)."

As I point out above to Lathrop: "Congress proposed the 14th amendment and section 3 June 13, 1866, the prospect of Rebels assuming office seemed urgent to address. By July 9, 1868 when the 14th Amendment was ratified" things had changed a lot in those two years. So much so that if the 14th had been drafted in 1868 the week before it was adopted Section 3 probably wouldn't have been in it, it was no longer necessary.

But in any case its my understanding the Amnesty Act was passed in 1872, not 1869.

[Michael P]

The Fourteenth Amendment was, in relevant part, adopted in order to constitutionally authorize that part of the Second Confiscation Act.

[Kazinski]

As for “But Congress may by a vote of two-thirds of each House, remove such disability.”

That just makes it clear a President can’t pardon someone and remove the disability. He could pardon them and let them out of jail, but not allow them to run for office once convicted.

Do you really think Congress was saying "Nevermind the law we already passed, and haven't repealed, and do whatever you want", When they voted for Sections 3 and 5?

[tylertusta]

If we were to extend the logic of the anti-Trumpers view of Section 5 to the last sentence of section 3, then anyone could remove the disability.

[David Nieporent]

As for “But Congress may by a vote of two-thirds of each House, remove such disability.”

That just makes it clear a President can’t pardon someone and remove the disability.

Again, setting aside the lack of evidence, it isn't even logical. "Congress may do X" is a very odd way to say "The president can't do X."

[not guilty]

"That just makes it clear a President can’t pardon someone and remove the disability. He could pardon them and let them out of jail, but not allow them to run for office once convicted."

Supporting authority?

In fact, a President can (except in case of impeachment) pardon any federal criminal sentence, in whole or as to any part(s) thereof. "The plain purpose of the board power conferred by [Article II,] § 2, cl. 1, was to allow plenary authority in the President to 'forgive' the convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable." Schick v. Reed, 419 U.S. 256, 266 (1974).

OTOH, Congress has no authority to alter or modify any provision of a judgment of criminal conviction under 18 U.S.C. § 2383. That the framers of the Fourteenth Amendment, § 3 conferred upon Congress the ability to remove a disability imposed thereunder indicates that is a civil disability and not a criminal penalty.

[Kazinski]

I can see someone might assert that, it's not absurd.

But of course Baude went so far as to say Section 3 could deny due process and allow Bills of Attainder, as well as allowing ex post facto penalties, which I don't think it's particularly controversial for Section 3 to do, at least as far as disqualification for office.

But I don't think should be particularly controversial that if section 3 imposes a new class of penalty whether as part of a civil or criminal offense, disqualification,
then it can specify the procedures for removing the penalty.

I also don't think it's particularly controversial that section 5 allows Congress to decide whether to enforce the 14th amendment with either civil or criminal penalties.
Such as:
TITLE 18, U.S.C., SECTION 242

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, ... shall be fined under this title or imprisoned not more than one year,"

And while the statute doesn't actually mention section 1, 2, 3 or 5 of the 14th amendment I don't think there is any doubt its authority to do so is Section 5.

[Josh R]

.

Baude went so far as to say Section 3 could deny due process and allow Bills of Attainder, as well as allowing ex post facto penalties.

No. Baude said Section 3 is not a Bill of Attainder nor an ex post facto penalty. He further said the process for determining disqualification, including administrative hearings and court proceedings, satisfies due process.

[Kazinski]

“The Sweep and Force of the Section 3” -Baude and Paulson

Abstract: “Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment.”

Come on Josh, I know what Baude posted here, and what his paper says.

But to be clear, I'm citing what Baude said, I'm not citing him as an authority because I don't find him convincing on this topic.

[Josh R]

My emphasis:

to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them.

Baude then goes on to explain there is no conflict.

Section Three is neither a bill nor an attainder. [...] Moreover, Section Three does not inflict it on specified persons or groups, but rather on anybody who has committed a described course of conduct.

as applied to actions done before 1868, Section Three has retroactive (non-criminal) constitutional legal effect. But as applied to actions done after 1868, the idea that Section Three might depart even from the “spirit” of the ban on ex post facto laws makes precious little sense.

Section Three’s disqualification would be enforced through administrative hearings, quo warranto suits, state and federal judicial review, congressional adjudications, and so on.
Anybody who wishes to argue that his conduct is not covered by the substantive sweep of Section Three is free to litigate that point through all relevant channels.

[Krenn]

I'm mostly busy gaming out the worst-case scenarios for what might happen with the Trump Disqualification SCOTUS case.

Let's assume, for the sake of argument, that SCOTUS issues some sort of ruling in that case which says three basic things;
1. Trump can (theoretically) be disqualified as an insurrectionist from actually holding any elected office, including the presidency.
2. The decision to actually remove Trump from primary or general ballots, or not remove him, must be made on a state-by-state basis, in accordance with their local laws and procedures. 14.3 only says that he (probably) can't 'hold' presidential office, and ballot procedures are reserved to the states.
3. State procedures control ballot access, but federal procedures control actually taking federal office. And SCOTUS isn't saying what the relevant federal procedures on that subject would actually be, yet.

IF SCOTUS did that.... and I'm not saying they will, but IF they did...

And IF Trump then went on to remain on enough state ballots, that he actually managed to win a majority of the electoral college in the general election....

Hypothetically... if we DON'T have a uniform system for keeping Trump, or some other insurrectionist, of the ballot, but proven insurrectionists CAN'T hold office as the President... What WOULD be the procedure to keep Trump, or some other winning presidential oathbreaking insurrectionist, out of office?

The possible checkpoints I've come up with so far are below:

1. Refusal by each state's SecStates to certify election results if an insurrectionist wins.

2. Court Orders or State Executive Orders to members of the electoral college, forbidding them to vote for the insurrectionist who they were otherwise expected to vote for.

3. Refusal by the head of the GSA to ascertain that an insurrectionist really had won, and thus to begin the transition process.

4. Refusal by a majority of both Houses of Congress to certify the electoral votes cast for an insurrectionist.

5. POSSIBLY invocation of the 25th amendment by the outgoing VP and outgoing Cabinet.

6. Invocation of the 25th amendment by the newly appointed VP and incoming Cabinet.

7. federal Court orders banning the newly elected President from taking the oath, walking inside the White House, or doing anything even remotely "presidential".

most of those checkpoints became relevant in some way, for some reason, during either 2016 and 2020, and none of them worked out terribly well. All of them seem to have clear problems being used as the final method of preventing insurrectionists from taking office. But I can't figure out where a GOOD solution would get plugged in.

[Brett Bellmore]

I think you can eliminate the 25th amendment from that list. (I understand you were attempting a comprehensive list, but still.)

Remember, while impeachment requires 50%+1 in the House to impeach, and 2/3 in the Senate to convict, the 25th amendment requires 2/3 in BOTH chambers to confirm incapacity over a President's objection.

The only circumstance under which you'd be able to invoke the 25th amendment against a President, and not more easily impeach him, is if he genuinely was incapacitated, in the opinion of his supporters.

Now, having pointed out why the 25th amendment doesn't belong on that list, as a worst case list, why did you omit assassination? Attempts to assassinate Presidents are hardly rare... I think that, in your scenario, attempts to kill Trump are practically certain.

Indeed, though they didn't get a lot of press, people started trying to kill Trump even before he took office... There were four attempts to assassinate Trump that I'm aware of, (I'm not counting the guy who falsely yelled "Gun!" as an assassination attempt...) one during the primary campaign, and three while he was President.

Interestingly, 3/4 of them were committed by foreigners.

[Krenn]

Yeah, the 25th amendment is a bad option, but they’re all bad options.

Realistically, if the 25th amendment WERE triggered, it would only be because some court said something like “We would love to bar Trump from holding office, but the only legal route we can see to do that would be if someone invoked the 25th, and then a court ordered Trump not to contest the 25th, or not to accept re-confirmation by congress when it was granted.”

Or, I suppose that some nutso set of congressmen could come up with an excuse like they did after January 6th impeachment.... "Of COURSE I deplore having an insurrectionist elected as president, but I just don't think I have the constitutional authority to reject properly cast electoral ballots. Try some other method of asking me to reject the president. like the 25th, maybe."

Which, granted, is incredibly unlikely to happen that way, but it’s HARD to find a valid, reliable, option which doesn’t involve blocking Trump from the ballot in the first place.

I used to think that maybe SCOTUS would punt, and try to avoid issuing a final, binding decision that applied to everyone…. But the more I game out what might happen NEXT, the more I hope and pray that SCOTUS DOESN’T punt.

Because this mess, if it happens…. looks to be even worse than the debacle that occurred when people tried to get actual uniform highly specific emergency ballot-counting standards out of the Florida Supreme Court in year 2000, and were repeatedly denied clear or useful guidance on the subject.

[Brett Bellmore]

"and then a court ordered Trump not to contest the 25th, or not to accept re-confirmation by congress when it was granted.”

At which point Trump would just recommend to Congress that they impeach the insane judge, and the order would be ignored by all until it was inevitably overturned by an appeals court, possibly even sua sponte.

If the Supreme court had meant to punt, they'd simply have declined cert, I think.

[Krenn]

I want to say that things would never get that bad, but after 2000, 2016, 2020, and a few other disaster years, I no longer have that much innocence left in me.

[Bwaaah]

"I want to say that things would never get that bad, but after 2000, 2016, 2020, and a few other disaster years, I no longer have that much innocence left in me."

Same for me. And by the looks of how 2024 is shaping up, those may end up looking like the good old years when elections were resolved amicably.

[Bwaaah]

But remember how it's always been: "I can't remember it ever having been this bad."

[Commenter_XY]

It is going to be a fucking mess = 2024 election

[Moderation4ever]

Not real sure where you are going with this comment? If SCOTUS does affirm that states may deny ballot access to Donald Trump and despite not having access to all state ballots he still gets the required EC votes necessary to win, then Donald Trump is elected President. Simple as that.

There is no real mechanism at that point to deny the Presidency. Denying the winner the Presidency in 2021 was exactly what was tried in the months after the 2020 election and as you can see it did not work.

[Martinned]

Exactly. That's which ineligibility decisions in states that Trump probably won't win anyway are practically relevant only insofar as they set a precedent and a basis for a Supreme Court case.

[Krenn]

"If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President-elect shall have failed to qualify, then the Vice President-elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President-elect nor a Vice President-elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified."

20th amendment seems to say that it's possible for a President to be elected, but denied office because he's "not qualified". The nightmare is, we have no idea how that would actually WORK. Hence, my post.

[Brett Bellmore]

I would assume that the Presidential Succession Act would apply in that circumstance.

Presidential succession act

[Krenn]

maybe, but who bells the cat?

[JasonT20]

... and ballot procedures are reserved to the states.

The states are not reserved the power to run federal elections. It is just that they can. Historically, they were generally left to it mostly on their own. But the Constitution does reserve the power of Congress to regulate federal elections if it chooses to do that.

Article I, Section 4:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Of course, the choosing of Electors for President is left much more open. That power is left to each state.

This is one reason why I think it is entirely wrong for members of Congress to vote to object or reject any Electoral Votes except for the narrow set of circumstances where there is real controversy over who the proper Electors were. (Sjuch as in 1876.) 2020 wasn't even close to meeting the standards for when Congress has any business stepping in.

The Constitutional Convention considered giving Congress more of a role in choosing the President, but decided to leave Congress out of it unless there wasn't a majority in the Electoral College.

[Krenn]

"This is one reason why I think it is entirely wrong for members of Congress to vote to object or reject any Electoral Votes except for the narrow set of circumstances where there is real controversy over who the proper Electors were. (Sjuch as in 1876.) 2020 wasn’t even close to meeting the standards for when Congress has any business stepping in."

Yeah, that's a theoretically valid reason to reject one of the options on my list. Hence the List. How do you feel about invoking the 25th amendment either just before or just after Inauguration Day, on the grounds that maybe Congress should vote on a different qualification question, if it didn't feel permitted to vote against certifying the electors?

[Stephen Lathrop]

I feel that any election which puts Trump back in the White House will not deliver a congress which would vote to take him out of it. So the nation would have in the White House a President who attempted a violent coup.

On one hand, America's present election system is prone to minoritarian outcomes. On the other hand, the concerted will of the jointly sovereign American People is explicitly against handing the levers of power to an insurrectionist.

To decide between a minority president with a violent coup attempt on his record, and a textually unambiguous constitutional mandate to the contrary should not be a close question.

[Don Nico]

"the concerted will of the jointly sovereign American People"
Use the magic words and the argument is thereby true.

[David Nieporent]

The bizarre thing about Lathrop is his failure to understand his own arguments.

Lathop: "The People are Sovereign. Nobody can ever overrule them. The government is just the servant of the Sovereign People. In fact, here's a quote from James Wilson that says that the People, not the government, is Sovereign. Wilson explains that treating the Constitution as Sovereign is closer, but still not right; it's the People who are."

Also Lathrop: "With respect to Donald Trump: who cares what the People say in the election? The Constitution is Sovereign and overrules them."

[JasonT20]

The bizarre thing about Lathrop is his failure to understand his own arguments.

I think that the inconsistencies come from a nebulous definition of "The People" and what counts as an expression of their will. Reasonable definitions of The People include:

- The whole body politic of the country. That is, all of the people subject to the nation's laws. (Citizens, non-citizen residents, adults and children, etc.)

- All adult citizens
- All adult citizens eligible to vote

Then, what would count as an expression of their will:

- The results of the most recent election.
- Laws passed by elected representatives.
- Public opinion, whether it is from polls, grassroots organizing, demonstrations, and more.

Do laws passed decades or centuries before count as the will of The People? This gets to Stephen's argument, I think. The Constitution sets the eligibility requirements to be President. It has been several decades since any of those requirements were altered in the Constitution. (The two-term limit ratified after FDR.) Also, is a majority enough to count as the will of The People, or a supermajority, or does it depend on what is being expressed?

[Stephen Lathrop]

Krenn, curiously missing from your worst-case scenarios, are the worst cases of all. For instance, SCOTUS rules some way or other that Trump must be allowed ballot access everywhere. Trump then goes on once again to lose the election, and once again launches a coup attempt, but this time one better supported by the House, or more violent, or both.

Or assume Trump legitimately gets re-elected in 2024. And then spends 4 years armor plating the federal government as a fortress against ever again electing a Democrat, while arranging for unchallengable ascendance of Trump’s chosen successor.

Please folks, and please SCOTUS, do not lose sight of the facts which made Trump eligibility issues salient. There are important process issues, no doubt. To prevent a former president who attempted a coup from getting his hands back on the levers of power is more important.

The Section 3 mandate to disqualify Trump has been clear enough to attract support from responsible Republicans and responsible Democrats alike. SCOTUS has a constitutionally legitimate option to read the text literally, and thereby prevent the worst possible outcomes. The best time to face down worrisome political upheavals will always be to do it sooner than later.

SCOTUS now confronts a decision on the brink, with potential by getting it wrong to go down in history as the decision which ended American constitutionalism, and destroyed the republic. Whether or not you suppose those consequences are likely, they are undeniably possible, and more than slightly possible. There is no possible scenario which threatens comparable danger.

[Bwaaah]

Think about the children!!!

(Did I miss your argument?)

[Krenn]

I was limiting myself to worst-case scenarios if SCOTUS punts. The other two sets of Worst Case scenarios, where SCOTUS either allows Trump completely or blocks trump completely, have already been well covered by other people.

[Don Nico]

"Or assume Trump legitimately gets re-elected in 2024. And then spends 4 years armor plating the federal government as a fortress against ever again electing a Democrat, while arranging for unchallengable ascendance of Trump’s chosen successor."

Somehow, you seem to think that hysteria makes your argument cogent. It does not.

[Moderation4ever]

What I think is funny is the idea of Trump's chosen successor? What if Trump would spend four years arguing the 22nd amendment is invalid.

[Martinned]

Why would Trump be any different than any other rightwing populist that's been elected in the last 20 years? He already tried to do exactly what Stephen describes in 2020. He just wasn't competent enough to pull it off. But if you can say anything for rightwing populists, they do learn from their mistakes.

[Kazinski]

What you are really gaming out is that the supreme court is taken over by the Racoon in Guardians of the Galaxy, and he says:
"Wouldn't it be fun if we made a total hash of the decision and then we watch while they all scramble around for 6 months trying to cobble together a fix?"

Fun game.

But I will just wait for February, the Roberts Court as opposed to your fantasy Racoon Court actually has gone out of its way to keep the courts and dueling decisions, many of them last minute, from sowing chaos in our elections.

[Krenn]

I do a lot of my learning on complex systems by modeling counter-factual scenarios like that. You learn SO MUCH from the really in-depth failure modes...

[Randal]

First of all, the Republican convention would be unlikely to nominate Trump if he were found ineligible.

After that, #2 is the "correct" mechanism based on the recent fixes to the Electoral Vote Count Act.

Finally, there's one additional safety valve: Congress can vote to remove the disability.

But this same scenario could play out with a popular 28-year-old, so I assume there are safeguards in state law already. It's not really a new situation. Actually a popular 28-year-old would be even more troubling, since Congress doesn't have the option to remove that disability.

[Krenn]

The electoral count act envisions courts ordering Electors how to change their votes? I don't remember that clause...

[Randal]

(c)Treatment of certificate as conclusive
(1)In general
For purposes of section 15—

(A)the certificate of ascertainment of appointment of electors issued pursuant to this section shall be treated as conclusive with respect to the determination of electors appointed by the State; and
(B)any certificate of ascertainment of appointment of electors as required to be revised by any subsequent State or Federal judicial relief granted prior to the date of the meeting of electors shall replace and supersede any other certificates submitted pursuant to this section.
(2)Determination of Federal questions
The determination of Federal courts on questions arising under the Constitution or laws of the United States with respect to a certificate of ascertainment of appointment of electors shall be conclusive.

(d)Venue and expedited procedure
(1)In general
Any action brought by an aggrieved candidate for President or Vice President that arises under the Constitution or laws of the United States with respect to the issuance of the certification required under section (a)(1), or the transmission of such certification as required under subsection (b), shall be subject to the following rules:

(A)Venue
The venue for such action shall be the Federal district court of the Federal district in which the State capital is located.

(B)3-judge panel
Such action shall be heard by a district court of three judges, convened pursuant to section 2284 of title 28, United States Code, except that the court shall be comprised of two judges of the circuit court of appeals in which the district court lies and one judge of the district court in which the action is brought.

(C)Expedited procedure
It shall be the duty of the court to advance on the docket and to expedite to the greatest possible extent the disposition of the action, consistent with all other relevant deadlines established by this chapter and the laws of the United States.

(D)Appeals
Any appeal from the judgment of the panel convened under subparagraph (B) may be heard directly by the Supreme Court, pursuant to section 1253 of title 28, United States Code, on an expedited basis, so that a final order of the court on remand of the Supreme Court may occur on or before the day before the time fixed for the meeting of electors.

[Krenn]

That doesn't change how the electors vote, it changes which slate of electors GET to vote. They're talking about recounts, and flipping between certifying one slate of electors versus a different one.

[Randal]

Yeah that's been confusing to me because of this...

1.Time of appointing electors
The electors of President and Vice President shall be appointed, in each State, on election day, in accordance with the laws of the State enacted prior to election day.

... which makes it seem like the electors are appointed before the outcome is known. I don't know if that means there are multiple slates of electors appointed, or if the electors are expected to vote one way or the other based on the final count (as potentially superseded by intervening judicial opinions).

[Randal]

... but either way, it doesn't really matter... the point is that the courts are expected to solve this problem either by binding the electors or by binding the selection of electors.

[Krenn]

Courts binding the selection of electors would probably fall under scenario #1, binding the votes of electors themselves would be scenario #2.

Problem being, it's not clear that you can do EITHER of those things... the perfect solution would be to tell Trump's electors to vote for the Veep instead, but that would be a matter of state-by-state law, and the states are horribly inconsistent about those sorts of emergency replacement laws.

[Randal]

You probably can’t bind the votes of the electors directly, but you can bind the state to certify a particular winner, which the electors are then just as bound as they always are to vote for that person.

But I agree with you there’s something disconcerting about the way the act is put together… it imagines candidates initiating suits in federal court, but it seems like the relief will almost always be something that only a state court could grant. When you have state relief that depends on a federal question… I’m not sure how that’s supposed to go procedurally under the act.

Take 2000 as an example. That case went from FSC to SCOTUS to answer a federal question, and then was remanded back to FSC. It seems like that's still the route that 99% of election litigation would take... so what exactly is the point of the "Venue and Expedited Procedure" section? If it had been in effect at the time, should Bush have sued Gore in federal court rather than state court?

[Martinned]

I know that may people here probably missed South Africa's case before the ICJ against Israel, under the Genocide Convention. But it's interesting nonetheless. The EJIL:Talk blog has a post today that argues, rightly in my view, that the ICJ cannot impose interim measures that order Israel to stop defending itself, or that have the effect of doing so.

https://www.ejiltalk.org/why-the-icj-cannot-order-israel-to-stop-the-war-in-gaza-as-a-provisional-measure/

[Martinned]

And, for completeness, here is South-Africa's application, which also sets out the provisional measures it is seeking: https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf

[Krenn]

I saw a different post, summarizing South Africa’s case…

My big reaction was that Israel would have a MUCH better defense against the genocide allegations if they simply fired every minister who had publicly said things which could be viewed as intent to commit genocide.

by legal definition, without intent, there is no genocide. And Israel has a pretty good argument that the Gaza Mortality Stats are entirely in line with any other famous urban conflict where the defenders couldn’t retreat, refused to surrender, and were perfectly willing to sacrifice the city and the population as part of the conflict.

Of course, if Israel DOESN’T fire those ministers, it REALLY damages their case.

[Martinned]

I'm not sold on the actus reus either, although the ICJ has set the bar for "part of a group" quite low in the past. (Though not so low that the Serbian killings in Vukovar were genocide.)

[Krenn]

in terms of "prima facia reasons for an accusation", "intent to commit future Mass displacement" is probably South Africa's best argument, since by treaty, that's on the list of things that count as genocide. Or at least, successful intentional mass displacement is.

If certain Right Wing Ministers in Israel would just SHUT UP about how they DESPERATELY want to permanently drive all the Gazans out of Gaza, the "mass displacement" argument would be a much harder to sell. Without stated intent, It's currently on the "urban conflict" side of the line, instead of the "genocidal displacement" side of the line. With stated intent... it looks much worse.

[Bored Lawyer]

You keep saying that, but ministers don't speak for the government. Especially in Israel, given its cobbled-together-coalition style of government.
If some member of Congress says something nutty, is that the official position of the U.S.?
Granted, in this case a minister has a bit more power than just a member of the Knesset. But just because someone is minister of the police, or the interior, or whatever, does not mean he sets military policy for the country.
And, the PM put an op-ed in the Wall Street Journal where he laid out his vision for Gaza. Very unrealistic, IMO, but also far from genocidal.
(This is the general problem of how do you define intent for an organization, such as a corporation, or in this case, a State.)

[Krenn]

Call me an American, but I'm generally of the opinion that Ministers DO speak for the government, at least in some limited way, unless and until they are promptly fired and repudiated for MIS-speaking on behalf of the government.

Then again, in a democracy, you could arguably claim that the "sovereign" is combined will of all voting people, and therefore, if the People do not make arrangements to promptly disavow and repudiate the ministers they themselves permitted to take office, the People as a whole are then responsible for allowing such "bad" ministers in the first place. In theory, you could argue that by delivering such a mind-boggling bad coalition into power, that Israeli is democratically responsible for all their future misdeeds.

In related news, this is why I despise complex parliamentary democracies as a system of government.

[Bored Lawyer]

In the US, the cabinet is appointed to, and answerable to, the president, so what you say has some validity here.

Israel has a different system. If the PM tried to fire one of the ministers, his whole coalition would fall apart. So it's not the same thing at all. Not to mention that the two ministers who have made the most controversial statements are the Minister of Finance and the Minister of Internal Security. Neither of which are in a position to do anything about Gaza.

[Martinned]

Israel, like other parliamentary democracies, does have a system of collective responsibility in cabinet. Ministers are not supposed to publicly disagree with each other or with government policy. The whole point of that is to make sure that, yes, when ministers speak they are presumed to speak for the government. (Which is also why they're normally supposed to keep their mouths shut about policy areas that they're not responsible for.)

https://www.runi.ac.il/media/41mbzqth/minding-your-own-and-others-business.pdf

[David Nieporent]

Yes, they're not "supposed" to be saying these things. That and $2.90 will get you a ride on the NYC subway.

Netanyahu — contrary to the vision of him as this right-wing strongman running Israel — is not politically in a position to stop them.

[Krenn]

it wouldn't take much for the one or two Likud members to flip, and force an election, though.

[David Nieporent]

Right, but if Netanyahu ousts them from their cabinet positions, his government definitely falls.

[Krenn]

And if he chooses "don't fall the government" , and keeps those ministers in power.... he looks bad at the ICJ. Given a choice between new elections and tacit agreement with genocidal intent... he didn't choose new elections.

[David Nieporent]

In the abstract, you're right. But that's not how the Israeli government works, practically or politically. Can Netanyahu replace these people as ministers? Yes. Legally. But they remain in the Knesset, and that can and will bring down the government. And of course Netanyahu is unwilling to do that. He's a dead man walking, politically — he has lost everything except figurehead status — but that's not a status he's willing to give up.

The problem is that most outsiders don't know that the loudmouthed asshat ministers you're talking about have no actual power here in terms of what's happening in Gaza. (Some of them have very impressive-sounding titles, but not relevant authority.) So their quotes sound really bad (they are really bad!) but they do not represent a description of Israel's intent. It would be like citing a quote from Pete Buttigieg about Putin and pretending it described our strategy for Ukraine. (The difference being that Biden can fire Buttigieg on the spot if he said something embarrassing to the U.S., and it wouldn't impact his own position at all.)

[Krenn]

Problem being, as long as Netanyahu needs those guy's votes to stay in office, they DO have power. There is some evidence that Netanyahu is turning down military options from Centrist members who joined a 'unity' government, because he has to keep his worst ministers, and their parties, happy by using DIFFERENT military options. If they control x% of the Knesset Majority, they control roughly x% of Israel's intent.

This comes up in terms of things like negotiating importation of civilian relief supplies into gaza versus status of hostages in Gaza, or cutting of Israeli-provided power and water to Gaza, or negotiating for peacekeepers from Arab nations in exchange for concessions.... there are lots of things that Netanyahu's current majority won't let him do. And some members of that majority are ministers, and are loudly explaining where and when they're being jerks.

[Bored Lawyer]

Your comment only proves the point. Sure, these guys have influence, because they are part of the governing coalition, and the PM has to bend to some extent to their position, or he will lose the government.
But that does not mean that anything they say is government policy. The actual policy is a result of compromise between various factions -- that's how coalitions work. By the same token, if Netanyahu did everything that the more right-wing members wanted, he would lose the rest of the coalition, perhaps even some from his own party.
So the question is, what is "Israel's" intent? That is not determined by what one or two people say, certainly not ministers who have no direct say in how the war in Gaza is conducted. Do they influence it, sure? Do they determine it, no.

[Mr. Bumble]

“…the ICJ cannot impose interim measures that order Israel to stop defending itself, or that have the effect of doing so.”

Even if they did, who would enforce them and by what means?

[Krenn]

Implication is that the ICJ COULD issue such an order... but ONLY if the Security Council invaded Gaza, and publicly took responsibility for ensuring that no repeat of October 7th would be permitted to happen.

[Martinned]

We're lawyers, we care about court orders even if we know they'll be ignored.

[Mr. Bumble]

"We’re lawyers, we care about court orders even if we know they’ll be ignored."
As long as you've been paid, right?

[Martinned]

I haven't been paid for legal work since 2006.

[Frank Drackman]

not surprised.

[Bwaaah]

That explains a lot.

[Krenn]

Also, I have to live long enough to spend my money, and the economy and nation-state has to be stable enough that "spending my money" still retains meaning. Very important, often forgotten secondary elements which follow from getting paid in the first place.

[Bob from Ohio]

"even if we know they’ll be ignored"

Silly. If we know the order will be ignored without consequences, then its far better for the court not to issue such an order. Otherwise, the next order is more likely to be ignored.

Its like when Douglas tried to enjoin the Cambodia incursion. The rest of the court immediately stopped it because it would have had bad results to the court's future authority.

[Martinned]

I'm not sure I agree with that. It's the kind of question that would be worthy of its own VC post and discussion.

[Martinned]

P.S. I've just been reminded that the ICJ also adopted provisional measures ordering Russia to stop invading Ukraine.

https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-ord-01-00-en.pdf

The two dissenting judges did not mention concerns about the likelihood of compliance, though Judge Xue did:

wonder how those provisional measures can be meaningfully and effectively implemented by only one Party to the conflict. When the situation on the ground requires urgent and serious negotiations of the Parties to the conflict for a speedy settlement, the impact of this Order remains to be seen.

[Martinned]

Meanwhile, some helpful soul seems to have launched a campaign on Twitter to dox the judges (on a pro-Palestinian basis).

https://twitter.com/mohammedakunjee/status/1744119104921829438

[Michael P]

Releasing a person's email address at their employer's domain is not usually considered doxxing. Normally that involves publishing private information, but the list of current ICJ members is on their web site, and all the email addresses use the same format (initial letter of given name, dot, family name).

[Martinned]

Unless the email addresses themselves have been made public, it seems like this email was a call on members of the public to contact the judges by releasing private contact information. That is what doxing is. (Or at least, that is what doxing is if you do it maliciously.)

But I'll take it as read that Americans and Europeans will disagree about the definition of private information.

[Krenn]

Spamming. Releasing private, secret, or otherwise non-public email addresses for purposes of mass-mailing things to them is called Spamming.

It's not doxing until you start releasing potentially dangerously mis-usable personal information that clearly isn't relevant to their jobs, and which can't be fixed by simply getting a new business email address.

[Martinned]

Spamming does not involve releasing anything. Just because you don't seem to know what doxing is, doesn't mean you should compound the problem by also admitting that you don't know what spamming is.

[Krenn]

well, i suppose you could call it conspiracy to commit spamming, or trafficking in spam-related activities, but that's a petty distinction.

The art of finding, sharing, and selling email addresses that people didn't realize you would know about or would use for that purpose has been around since forever. doxxing is relatively new, and is something entirely different.

[Life of Brian]

Yeah, if Europe gets its knickers in a twist over the publication of a series of organizational email addresses in a commonly known firstinitial.lastname format for a publicly identified group of people, that's taking things to a new level.

[Noscitur a sociis]

You guys really need to stop letting Martinned troll you. Surely you don’t think that even the most effete eurotrash imaginable could actually consider this “doxing”?

[Martinned]

No, because I don't think it's malicious.

[David Nieporent]

This is just mindbogglingly stupid (the underlying tweet). What benefit does he think will accrue to Palestinians from a deluge of form emails to a judge? Even if judges were going to allow themselves to be swayed in their judicial decisionmaking by ex parte communications from random people, why would they be swayed by a bunch of form letters?

[John F. Carr]

I saw the news and didn't pay any attention beyond the headline. The ICJ hasn't done anything about the Israel/Palestine conflict before. Why would it start now?

I see the court did issue an advisory opinion in 2004 that at first criticized Israel but concluded with pablum:

The Court concluded by observing that the construction of the wall must be placed in a more general context, noting the obligation on Israel and Palestine to comply with international humanitarian law, as well as the need for implementation in good faith of all relevant Security Council resolutions, and drawing the attention of the General Assembly to the need for efforts to be encouraged with a view to achieving a negotiated solution to the outstanding problems on the basis of international law and the establishment of a Palestinian State.

[Martinned]

The ICJ indeed released an advisory opinion about the border wall that Israel built 20 years ago. Beyond that, it's a bit difficult to fault the court for not doing anything if nobody brought any cases.

Here is the case page for the 2004 opinion: https://www.icj-cij.org/case/131

[John F. Carr]

I mixed up the courts we don't care about much in America. It's the ICC that sat on the Israel/Palestine case for years.

[Martinned]

Yes, the Office of the Prosecutor at the ICC has a long and complicated history with the situation in Palestine: https://opiniojuris.org/2023/12/08/responding-to-the-open-letter-to-the-asp-regarding-palestine/

Then again, they seem to prefer their investigations long and slow anyway.

[Martinned]

Also entertaining: Apparently Elon Musk's drug use is getting seriously out of hand.

https://www.wsj.com/business/elon-musk-illegal-drugs-e826a9e1

[Frank Drackman]

you paid to read that bullshit?

[Sam Bankman-Fried]

When Musk took a toke when he was talking to Rogan it was pretty obvious he had never smoked weed before…I’m not buying any of that.

[Krenn]

Some of the drugs on that list are theoretically legal, right? like Ketamine? What are the precedents for CEO's violating their fiduciary responsibility by being lawfully intoxicated, anyway? Severe Alcoholism must have come up at least once in corporate law before now, right?

[Frank Drackman]

Ketamine and Cocaine are perfectly legal Schedule 2 Medications, used all the time in Anesthesia (sometimes even given to the Patient), Ketamines even being prescribed for our Veterans to treat PTSD (Yes a medication that causes disturbing hallucinations and dysphoria will really help)
Marriage-a-Juan-a's currently Schedule 1, drugs with "no currently accepted medical use and high potential for abuse"
you know, like Alcohol. Your local laws may vary.
While I have to use my Glaucoma as my reason to have a Medical Marriage-a-Juan-a card, I blaze for the same reason everyone does, to get stoned to the BeJesus belt.
The decreased Intraocular Pressure is just an extra.

Frank

[Frank Drackman]

Since we're making gratuitous drug abuse claims, what's the Over/Under for Hunter's inevitable Drug Overdose/Suicide??
I'm thinking it's gonna happen by Easter Weekend, lets Parkinsonian Joe add Hunter to his "Series of Unfortunate Events" (You gotta admit, however you feel about "45" the guy's lucky) Let's see, first wife's death, Bo, wow, actually Joe hasn't had that many bad things either, when you consider he's 81.

Frank

[Martinned]

An interesting problem that comes up from time to time is how you reform the courts after an illiberal government has been removed. This blog post discusses that problem in the context of Poland: https://verfassungsblog.de/one-sidedly-staffed-courts/

[Frank Drackman]

Or you could do like we did in the US, elect a POTUS who picks 3 Anti-Death Judges.

[Armchair]

Slowly, and according to the law.

[Martinned]

How does that work if the people who's job it is to say what "according to the law" means were put there by the previous illiberal regime?

[Kazinski]

It sounds like Donald Tusk is trying to do the same think in Poland to the courts that Netanyahu is trying to do in Israel.

[Martinned]

That is indeed the difficulty.

[Armchair]

Well, you've got 3 options.

1. Do it slowly and according to the law. That maintains legitimacy.
2. With overwhelming support, pass a Constitutional amendment or something analogous to change the law. That also maintains legitimacy
3. Do it via sketchy, dubious, or flat out illegal means. Hope you don't lose power in the future.

[John F. Carr]

Failure to put a "read more" break in long posts is an insurrection against my sanity.

[Kazinski]

As a wise man once said "anyone that doesn’t want to squander their time scrolling through pages of drivel shouldn’t come to a Volokh Open Thread in the first place."

[Martinned]

This story about Lloyd Austin being hospitalised without anybody knowing is also getting weirder and weirder. Apparently his deputy didn't know about it either.

https://edition.cnn.com/2024/01/07/politics/austin-hospitalization-leaders-not-informed/index.html

This seems like the kind of thing that someone should get fired over, but I'm not entirely sure who.

[John F. Carr]

The responsibility seems to be with Austin. He went in for a brief procedure. That may not require notification. After being discharged he was re-admitted to the ICU. The President needs to know when one of his cabinet members is seriously ill, as does Austin's deputy who at the time was out of town.

If he was incapacitated somebody should have made the call for him.

[Michael P]

That article says his chief of staff should have called for SecDef Austin, but the chief of staff was also out sick. Not having a backup chief of staff for that level of official, even over a holiday, is a serious failure to plan/prepare.

[Martinned]

Yes, that sounds right. So who gets fired? The SecDef, the chief of staff, or both?

[Mr. Bumble]

In Joe Biden's America, 2024, the answer is, no one. Incompetence and dereliction of duty is SOP.

[Martinned]

It is definitely true that far too few US politicians get fired or resign for major screw ups, but I'd hardly say that's a problem that is limited to one side.

[Mr. Bumble]

Agreed.

[Michael P]

SecDef first, then whoever (besides him) should have ensured his chief of staff had a backup -- who might not be the chief of staff directly. SecDef Austin has said "I take full responsibility for my decision about disclosure", which is the right thing to do, but he won't get fired over this.

[Mr. Bumble]

...and just what does "full responsibility" mean?

[John F. Carr]

I remember a satire sketch in the 1990s with an official saying "I take full responsibility. It's not my fault."

[Brett Bellmore]

That was pretty much Janet Reno's stance on Waco. She took full responsibility for what happened, and how dare you suggest she should suffer any consequences.

[Bob from Ohio]

And she got "oh, so brave" attagirls from the media.

[Don Nico]

In the end, if there is a f**k-up, it is the boss's fault. Still, all the high level offices have conduct-of-operations procedure

[Martinned]

Well, yes, that's my point. If the man was unconscious you can hardly fault him for not calling the White House and his deputy.

[Kazinski]

Well yeah, if he collapsed in the street.

But if its previously scheduled surgery, even 15 minute lasik surgery he should notify his deputy and the white house chief of staff.

[Frank Drackman]

No mystery, the fat (redacted) had a complication from Lipo-suction, who would want to make that public?

[Bob from Ohio]

Botched "bottom" surgery?

[Commenter_XY]

Shades of Jimmy Carter....

[Moderation4ever]

I suspect that this may result in one or more heads rolling, but it is also an interesting comment on our time and the demands of being connected. Sec. Austin was in hospital for three days and no one noticed. That suggest that the system works well enough that for a few days we don't need constant communication with the Secretary. That everyone did their jobs as expected. Sec. Austin should have done a better job of communicating, but I wonder if this is the problem that seem bigger than it actually is in reality.

[Martinned]

Well, it worked well enough because nothing bad happened during this period. I'm not sure how much comfort we should draw from that.

[Krayt]

I had to look this up, yes, the secretary of defense is in the chain of command, so it could be an issue if the shit hit the fan.

[Bob from Ohio]

"how much comfort we should draw from that"
None. If a school bus dodges the crossing gates but a train doesn't hit it, we don't excuse the driver.

[Bwaaah]

"Sec. Austin was in hospital for three days and no one noticed."

That's a false characterization. He was in the hospital for three days and untold numbers of people kept that a secret. (Kudos to the medical staff, but not to the others.)

[Don Nico]

Okay. No one in the chain of command noticed. That is disturbing.

[Bob from Ohio]

"Kudos to the medical staff"

Military officers. Doesn't the hospital head have an obligation to report it?

[David Nieporent]

Why would the guy even think he needed to? If you were a doctor would you assume your patient hadn't told anyone he was going into the hospital?

[Bob from Ohio]

No WaPo report the next day, no reporters clamoring for info.

[David Nieporent]

Yes, that's evidence that Austin didn't tell the public, not that he didn't tell his own deputy. (Or POTUS.)

[Mr. Bumble]

But he didn't.

[David Nieporent]

Thanks, Captain Obvious. But the issue we were discussing was whether his doctors knew that at the time.

[Longtobefree]

Funny how none of the coverage is about the incompetence at the hospital that led to major infection & complications for a 'routine' procedure.
Who fucked up?

[Stephen Lathrop]

Given the state of world affairs, I do not think it wise to presume reliable the public account of who knew what when. There were likely crisis concerns that it was folly to disclose even for a few hours that a key piece in the American chain of command was compromised.

If you want to prospect for hidden meanings, I suggest it is more likely that something more threatening than we have been told was going on behind the scenes of the Israel/Hamas/Lebanon/Hezbollah/Iran crisis.

[Don Nico]

Okay, Mr newspaperman, who lied? Mr Biden? Mr Blinken? The service secretaries? Mr Sullivan?
Instead you offer us a speculation for which you have no evidence. Seems like shoddy journalism to me.

[Stephen Lathrop]

Nico, it is not at all like shoddy journalism. It is self-evidently not journalism at all.

Note zero factual assertions, and no attempt to attribute even anonymous sources. That’s how most folks can tell it’s pure speculation. In this case, speculation in accord with commonplace practices for managing public disclosures during military activity.

[Noscitur a sociis]

L, as they say, OL.

This isn’t monkey-selfie level conspiracy theorizing, but it definitely is worth a polite chuckle.

[Jason Cavanaugh]

The answer is extremely simple: Everyone who knew about Austin being in the hospital and also knew that the President didn't know.

There isn't an acceptable excuse for this.

[Martinned]

Speaking of convenient administrative procedures, it appears Israel has been using "administrative detention" as a convenient way to get around normal human rights protections like the right not to be tortured.

https://reliefweb.int/report/occupied-palestinian-territory/revealing-horrific-conditions-faced-palestinian-detainees-euro-med-monitor-calls-immediate-international-delegation-inspect-israeli-detention-camps-enar

[Michael P]

What’s the source for those accusations? A web site that almost leads with “one of the main tools that Israel used to implement its decades-long apartheid regime against Palestinians” is not what I would call objective on the matter.

(I mean, they could have at least included the classic blood libel to cover all the bases.)

[John F. Carr]

You can read about it on Al Jazeera English too. Al Jazeera is pro-Palestinian but is also a serious news source.

[Martinned]

This article, for example: https://www.aljazeera.com/news/2023/12/31/israel-detains-palestinians-in-renewed-west-bank-incursions

[Michael P]

The substance of what that says is that administrative detentions happen:

Israel regularly holds Palestinians in jail without charge under a system of administrative detention that rights groups say is a tool to “persecute Palestinians”.

It doesn't speak to evidence of atrocities like those alleged above.

[Martinned]

Feel free to do more research. I cited my original source. I assume you won't like Amnesty International as a source either, but for the record, here it is: https://www.amnesty.org/en/latest/news/2023/11/israel-opt-horrifying-cases-of-torture-and-degrading-treatment-of-palestinian-detainees-amid-spike-in-arbitrary-arrests/

[Michael P]

Evidence by press release.

No wonder you don't get paid for legal work.

[Martinned]

Feel free to go visit an Israeli detention facility and collect first-hand evidence.

[ThePublius]

Al Jazeera? Ha, ha. Unbiased. Like the two Al Jazeera reporters killed in an Israeli strike - because the were riding with a Hama drone operator. Ha, ha, ha. FA and FO.

[Martinned]

Is that what you think happened to Hamzah Dahdouh? https://www.bbc.co.uk/news/world-middle-east-67905566

[John F. Carr]

I did not accuse Al Jazeera of being unbiased. Quite the opposite. I called Al Jazeera a serious news source.

[Sarcastr0]

This is a great object lesson in the difference between ad hominem and a credibility determination.

ThePublius is making a credibility determination about Al Jazeera, and everyone else is pushing back based on that.

There is no opinion or analysis here, so no ad hominem fallacy.

ThePublius' knee-jerk rejection of their reporting is facile, but not fallacious.

[Bwaaah]

Thanks for rising above it all.

I'm right there with you now.

[Bob from Ohio]

"difference between ad hominem and a credibility determination"

A red letter day folks! After 10 years, Sarcasto might be finally learning what an ad hominum is!

[Tom for equal rights]

ThePublius 1 day ago
Flag Comment Mute User
Al Jazeera? Ha, ha. Unbiased.

Concur - though generally less biased than the WP, NYT or the Beeb

[Nelson]

As opposed to the Daily Caller? Or is that the Daily Wire? Eh, same thing.

[Noscitur a sociis]

Which part of that article do you feel provides support for your claim that “ Israel has been using “administrative detention” as a convenient way to get around normal human rights protections like the right not to be tortured”?

[Bob from Ohio]

"serious news source."

Like Pravda or Völkischer Beobachte.

Its a terrorist mouthpiece, not "serious" at all.

[John F. Carr]

Al Jazeera Arabic is often a channel for Hamas, as far as I can tell from machine translation of a social media feed. Al Jazeera English wants to appeal to a Western audience. It is serious in the sense that it reports on newsy subjects and while it may be mistaken it doesn't make stuff up.

As an example of mistaken, there was early in the war a dispute over whether certain civilian deaths were caused by an Israeli attack or a malfunctioning or intercepted Hamas rocket. Al Jazeera was in the minority in blaming Israel. Al Jazeera also explained why Israel was at fault. I found the report unconvincing. I did not feel I was being intentionally misled.

[Bob from Ohio]

"doesn’t make stuff up"

LOL

[Rev. Arthur L. Kirkland]

.

What’s the source for those accusations?

Source?

At the Volokh Conspiracy -- which has for years consisted mostly of stolen election lies; QANon-class delusions; birtherism; Gateway Pundit-level partisan fantasies; birtherism; plandemic bullshit; virus-flouting nonsense; insurrection-related conspiracy theorizing; shoddy and fringe "scholarship;" old-timey bigotry from bigots who claim not to be bigots; and pining for "good old days" that never existed -- a sudden concern about credibility and sources?

Carry on, clingers. So far as your betters permit. Not a step beyond, though.

[Armchair]

How exactly does administrative detention get around the right to not be tortured?

[Martinned]

You tell me. It's what the US did after 9/11.

[Armchair]

You made the claim about the Israelis...

Do you have any evidence that this is true? That administrative detention by Israelis is being used to torture Palestinians? That this "torture" does not occur via the normal process?

[Martinned]

Yes, see above.

[Commenter_XY]

Much sound and fury, signifying nothing.

[Bob from Ohio]

He means evidence other than wild accusations.

[Martinned]

Unavoidably, everything I write here is a "wild accusation" to people who don't like the idea that Israel might be doing something wrong. How do you propose I solve that problem?

[Bob from Ohio]

Don't write here. Problem solved.

If I wanted to read unhinged, un-supported accusations by Arabs against Israel, I would not have blocked Teefah and Randal.

[Martinned]

That seems more like a you problem than a me problem.

[Noscitur a sociis]

You provided two links: one is a news article that doesn’t mention torture, the other is a press release with no specifics or substantiation.

[Armchair]

Evidence isn't present there for what is alleged.

[David Nieporent]

You tell me. It’s what the US did after 9/11.

No, what the U.S. did was get some lawyers to write opinions defining torture really really narrowly.

[Martinned]

No, that's what it did after it got caught torturing people. Before that, it spent a few years memory holing people and torturing them with abandon.

[JasonT20]

In the famous quote wrongly attributed to Voltaire, the principle of Free Speech is expressed like this:

I may disapprove of what you say, but I will defend to the death your right to say it.

This right does come with the proviso that the right to free speech is to be free from government interference in our speech, rather than to be free from the social and professional consequences of our speech. Even so, if we are not careful, we can find ourselves acting or proposing to act to punish or restrict speech we don't like using the authority of government.

Few people will not at least give lip service to this idea, even when they don't put it into practice with integrity. What disturbs me the most about the recent history of the U.S. is that this idea isn't extended to voting rights.

I may disagree for whom you choose to vote, but I will defend to the death your right to vote for whom you choose.

Why don't we have this statement as part of our list of core principles and rights?

[Martinned]

Because people shouldn't be able to use their free speech and voting rights to abolish the very system of democracy and rule of law that makes these things possible.

[JasonT20]

Sure. Just like there are examples of speech that isn’t protected by the 1st Amendment and also aren’t included in the principle of free speech, there are limits to the right to vote. A majority can’t vote to violate individual rights or to do away with others’ right to vote.
At least, we have to build in those limits as part of our institutions and culture.

Really, that is part of what I’m getting at. Ultimately, it is through voting that we protect our rights. Speaking, writing, or otherwise expressing our thoughts is important, but it is when we choose our government that we determine whether our rights will be respected.

If we can jealously protect our voting rights, then we can vote out officials that would restrict our speech, invade our privacy, or deny us due process. This should be the non-negotiable quality everyone looks for when making voting choices. Will the candidate act to protect everyone’s voting rights or not? Or will they try to manipulate elections in some way to make voting more difficult, make voters’ choices less meaningful, or disregard the results if they aren’t what they want?

[Jacob Grimes]

They just aren't really analogous rights as a practical matter. At least as I see it, Voltaire's sentiment reflects a sense of uninhibited personal freedom and expression to speak into the ether, whereas voting is participation in a very organized process that requires strict rules and oversight. It's not compatible with a laissez-faire approach.

[JasonT20]

...voting is participation in a very organized process that requires strict rules and oversight. It’s not compatible with a laissez-faire approach.

I agree. But that elections need to be run carefully with set rules and oversight doesn't change that the voters are expressing their power as the people (and giving their consent to be governed, as the Declaration of Independence put it).

Not to sound too much like Stephen, but it is important to recognize that the power of government is granted by the people being governed. The government must serve at their pleasure, and that means that the people have to be free to remove the people previously elected to government positions when they choose to. That can't happen if the government can arbitrarily restrict who gets to vote. The right to vote and choose their government is also weakened when the current office holders can manipulate those rules you mentioned to make it less likely that the people would be able to vote them out.

[Commenter_XY]

JT20, in your example, how do you address candidate ballot access?

For example, in my state, you need a minimum number of signatures to be categorized as a bona fide candidate, submitted to the relevant authority (could be Town Clerk, and/or County Commissioner, and/or State commissioner). Would you do away with these kinds of requirements that governments impose?

Where does candidate access or ballot access come in to play with the unfettered right to vote?

[JasonT20]

I see democratic elections relying on three legs of a stool.

1) Trust in the results.
2) Freedom to vote.
3) Openness of eligibility to run for office.

All of the issues surrounding security, accuracy of the counting, transparency and the objectiveness of the entire election and its rules is what determines 1).

The freedom to vote means that voters are not arbitrarily limited in their eligibility to vote or in their practical ability to cast a ballot. Every voter has an equal right to cast a ballot, and every one person gets one vote only. Putting unnecessary obstacles in the way of voters such that 5% of one group ends up not voting, while larger or smaller percentages of other groups are dissuaded from voting is one way to manipulate turnout. And the lawmakers that set it up that way can claim that it is all legal and fair and necessary for election security even if no one believes a word of it.

Access to being a candidate needs to be open also. But eligibility requirements that aren't arbitrary and that are enforced equally don't stand in the way of an election being open. The Constitution sets very few limits on who is eligible to run for office. (Not having engaged in an insurrection after having once sworn an oath of office to defend the Constitution is not an arbitrary requirement.)

In practical terms, the real limitations on who can run for public office come down to money. Who has it or can raise it gets to run.

[Mr. Bumble]

"In practical terms, the real limitations on who can run for public office come down to money. Who has it or can raise it gets to run."
Not necessarily; see Michael Bloomberg.

[JasonT20]

That's what I mean. He had money, so he didn't need to get it from others. Supposedly Trump did too, but I don't think he ever spent a significant amount of his own money on either campaign.

[Commenter_XY]

See, this is where it gets tricky. These three legs are very wobbly. 🙂

[JasonT20]

All three legs are equally important. [It isn't just whether the legs are strong and stable, but how long they are matters as well.]

If someone from Party A is only expressing concern for one of them, then that's a good sign that they are looking for a partisan advantage by focusing on that issue. Even if they really believe that one of them has larger problems than the others, we should watch to be sure that they aren't arguing to sacrifice one of them in order to strengthen a perceived weakness in another. We also need to be skeptical that this perceived weakness they are talking about is real, and that it isn't just an excuse to bring advantage to themselves.

Of course, if we are highly partisan ourselves, we may be quick to accept the word of people on our side and dismiss the arguments of those on the other side that our solutions will hurt their ability to vote. No one can fool us as easily as we fool ourselves.

[bernard11]

For example, in my state, you need a minimum number of signatures to be categorized as a bona fide candidate, submitted to the relevant authority (could be Town Clerk, and/or County Commissioner, and/or State commissioner). Would you do away with these kinds of requirements that governments impose?

Where does candidate access or ballot access come in to play with the unfettered right to vote?

The question here is exactly what the right to vote entails. Is it:

1. The right to participate in the selection of someone to hold a particular office, or

2. The right to express oneself as to who one thinks should hold the office.

If we take the first definition it is perfectly reasonable to require that a would-be candidate demonstrate some minimum level of support before getting a spot on the ballot. That reduces administrative cost and ballot complexity.

If we use the second it is not, because a voter can argue that he should be able to express his preference even if it is shared by no one else.

With strong reservations, I lean towards #2, but am willing to be convinced by practical considerations that it will generate significant problems.

I do think that if we adopt #2, there should be a requirement that would-be candidates file statements that they want to elected, and will take office if they are. No voting for someone who doesn’t do this.

[Magister]

It seems that write-in votes are frequently limited to valid candidates, meaning those who have communicated that they are such to the appropriate election officials, with the intent of avoiding a lot of expense to tally small numbers of votes for fictional characters (interested as people may be whether Mickey Mouse or Donald Duck gets more votes) and I suppose potential ambiguity with common names (if "John Smith" wins as a write-in candidate, which John Smith was intended, and were all the votes for a single John Smith?). This is not as strong as your requirement, since they might not want to be elected or to serve.

[Stephen Lathrop]

JasonT20, one good reason would be that it is unwise to designate voting a right. It is better understood as something much more than a right. It is a sovereign power, which everyone in government swears an oath to protect and preserve.

On that basis, all that seems required to quiet current voting controversies would be a law to make oath breaking a federal felony. Given that the Constitution already requires the oaths, to pass such a law ought not even be controversial—but of course it would be, among would-be oath breakers, who currently abound.

[Don Nico]

Once again, magic words to justify a position

[Nelson]

"On that basis, all that seems required to quiet current voting controversies would be a law to make oath breaking a federal felony."

Oh, sure. That would never be weaponized by politicians for venal and partisan purposes. Finding the better angels of our nature in politics is a very difficult task. Making a law that depends on it is pure idiocy.

[apedad]

There's not a controversy about the "right" to vote.

The controversies are further away from the right to vote, i.e., absentee ballots (and election integrity in general), more or less polling stations, redistricting and gerrymanding (and who decides what is proper/legal), can you give a person standing in line a bottle of water, etc.

[Moderation4ever]

I have noticed an interesting trend in my local paper and other reporting about rising costs. Much of the rising cost is the results of decreased government support as Covid funds dry up. What is interesting is the reaction to that is people are angry that they are paying more than when there are no Covid funds to hold down costs. So, what happens if the party in power suffers because of the way people feel? How does the idea of cutting spending work if even when these supplemental funds go people are angry. A great example that cutting spending is a bigger lift than people think it is.

[Michael P]

Government's inflationary spending causes inflation. News at 11.

[Moderation4ever]

No, government did not increase inflation. Government spending gave people an illusion of a cheaper cost and they are angry to find the truth when those funds stop.

[Armchair]

"What is interesting is the reaction to that is people are angry that they are paying more than when there are no Covid funds to hold down costs."

Because people implicitly know government-spending inflation is the reason.

Let's give a hypothetical example.

1. An apple costs $1.00
2. The government subsidizes the apple, by printing money and giving it to people to buy the apple.
3. The subsidized apple now costs $0.75
4. Inflation results from the printing of money.
5. The apple now costs $1.00, even subsidized, due to inflation
6. The government realizes inflation is a problem, and stops subsidizing the apple
7. The apple now costs $1.25

[Stephen Lathrop]

No. 4 above is contingently accurate, or alternatively mistaken, depending on the state of the economy.

[Martinned]

And on what Armchair means by "printing money".

[Armchair]

Print enough money and it doesn't depend on the state of the economy.

[Martinned]

Tell that to central bankers across the world in the 2010-2020 period. They were printing money for dear life, trying to get inflation to go up, but no dice.

[Armchair]

Venezuela's central bankers seem to have figured it out real well during that time period.

[Martinned]

It’s almost as if inflation depends on more things than the quantity of money. Can you think of (other) differences between the US and Venezuela that might affect the level of inflation?

[Dr. Ed 2]

People plant apple trees so the supply increases, and people buy fewer apples. The price drops to 50 cents, and eventually comes back to 75 cents.

[Moderation4ever]

You are missing or deliberately missing my point which is that people are mad that temporary money is going away. How do you cut real spending when people get made when temporary money goes away. In 2025 a number of tax breaks from the 2017 tax cut will go away and I expect you will again hear a howl. How do you tell people that they are going to have to pay more for the services they want?

[Don Nico]

Fair enough characterization

[Armchair]

"How do you cut real spending when people get mad when temporary money goes away?"

Convince them that it's for the long term fiscal health of the country, that a little pain now will pay off later in bounds.

"How do you tell people that they are going to have to pay more for the services they want?"
Show them why and how it costs more, and present them with alternatives (such as the lack of, or a different service.) People like choice.

What you don't do is overpromise and underdeliver. That destroys trust, and they won't believe you. You don't tell them "really everything is OK" when for many of them it's not.

[Moderation4ever]

The fact is that convincing people is a very difficult, if not an impossible task. I have repeatedly pointed out that people are undertaxed for the services they receive. Want them to consider the value of the service for the cost, then tax appropriately. But as you can see people are very resistant to anything that raises their costs. So, anything that cuts spending or raises taxes is a nonstarter with politicians of both parties. Political slogans, "raise taxes on the rich" and "cut spending" are just slogans. Your suggestion to reason with the public is in my opinion useless.

[Brett Bellmore]

As I've remarked before, once governments are permitted to borrow for today's expenses, it's all over but the shouting. Any politician who refuses to, or proposes to start paying down that debt, will be outbid by his opponent who would rather borrow to give the voters stuff today.

And the deeper the government gets into debt, the worse it gets.

If you're only a little in debt, it only takes a tiny bit of austerity to stop going deeper, and a tiny bit more to get back out. But if you're deep in debt, such that carrying the debt is a major expense, just stopping getting deeper requires major sacrifice, and climbing back out requires a horrifying level of sacrifice.

In 2023, the federal government took in $4.44T in taxes. And spent $6.1T. Just interest on the debt was $659B.

In order to balance the budget, spending would have to be reduced to $3.781T, a 38% spending cut. That wouldn't start paying down the debt, it would just stop it from growing.

Federal debt is about $34T. Let's say we wanted to pay it off in half a century. That's $680B in principle payments a year.

We'd have to reduce spending by 50%, if our goal was to pay off the debt in half a century. That's how deep a hole we're in.

I think we passed the point of no return quite some time ago, it is politically impossible at this point to avoid a crash.

I actually blame Newt Gingrich for this situation: The last realistic point at which we could have escaped this trap was in '95, when the balanced budget amendment was voted on as part of his "contract". It could have taken deficit spending off the table.

Gingrich deliberately managed the amendment process to make sure that it failed...

[Sarcastr0]

What is the mechanism you foresee by which our debt causes a crash?

[Brett Bellmore]

The usual mechanism: Debt service keeps growing as a fraction of the budget, the debt curve hits it's exponential 'knee', and lenders decide that the risk of not being paid has gotten too high, and refuse to lend more.

Cue the usual rationalizations as to why this can't happen...

[Sarcastr0]

Lenders?

[Brett Bellmore]

Even for the usual usual rationalizations, that's somewhat abbreviated. Yes, "lenders" are usually involved where there's "borrowing".

I suppose you're going to suggest solving the problem of lenders not wanting to lend any more by just printing money, or something equally stupid?

[Sarcastr0]

No, Brett. You can't just waive your hand about this.
This is part of how national debt is not credit card debt.

Who are the lenders?

[Brett Bellmore]

Why do you think I have to name them? What part of the reasoning depends on knowing who they are?

I mean, I've been in this sort of conversation before, and I know where you're going.

No, not all the debt is internal to the US, or on the part of lenders the government can just order to lend money that won't be repaid.

No, the government can't just lend itself the money, you get hyperinflation down that path.

You're treating a theoretically abstract system as though it doesn't have real world limitations.

Government borrows to expend resources it doesn't have, but SOMEBODY has to have them, for them to be expended. So the system breaks eventually no matter what work arounds you attempt.

[Sarcastr0]

Seems like you know but don’t want to say.

[Brett Bellmore]

Says the guy whose response is one word questions.

It does not matter who the lenders are. Not in the final analysis.

Now explain why you think it DOES matter, why you think there's some lender out there that can lend infinitely without consequence.

[Sarcastr0]

It does matter because you are analogizing to credit companies servicing individuals and neither individually nor collectively is that correct.

No one is going to call in the US debt.

That does not mean debt is cool and good. It just means your analysis of why it is bad is wrongheaded.

[Brett Bellmore]

Where did I say that somebody was going to "call in" US debt? I said nothing even resembling that. There's no mechanism by which anybody could do that.

What I said was that, at some point, people would stop lending MORE to the US.

Which would be no big deal if we had a balanced budget, but is a hellaciously big deal when a third of our budget is financed by borrowing.

[Sarcastr0]

Fine. Not call in the debt.
But who will stop lending more?

Do you even know how bonds work?

My main point is that it’s not going to be a sudden step function like you hand waivingly assume.

[Armchair]

As is normal, Brett's right and Sarc is wrong.

The lenders in this case are the individuals, groups, and countries which buy US Treasury Bonds. Treasury bonds go up for auction at regular intervals, with various terms of length and interest rates. These auctions however can "fail". IE, no one is willing to buy the bonds at the maximum interest rate offered. That recently happened on a 30-year bond offering.

https://finance.yahoo.com/news/treasury-bond-auction-runs-weak-034418412.html

This unfortunately tends to have snowballing effects. No one wants the bonds at the low rate, so rates need to go up on all debt. That drives spending higher, which requires more borrowing. Investors get worried, and demand higher and higher rates over shorter times. Cracks would start at the 30 year bond, then hit the 10 year bond market.

But what if "no one" offers to buy the bonds? The Fed at that point steps in, and buys the bonds (printing money to do so). That causes even more dramatic effects...

[bernard11]

What happens is not that lenders quit lending. It's that rates rise, and the value of outstanding debt drops. Debtholders sell, raising rates further, and this has, obviously, a negative effect on the economy.

Armchairs point is interesting, but note that, per his link, the 30-year yield jumped to 4.856%. That was in October. As of today that yield is down to 4.07%.

So maybe that wasn't a harbinger of disaster. Yes, the rate has crept up over the year, but it's nowhere near catastrophic levels.

[Sarcastr0]

Armchair, you've just disproved yourself - a bond auction failed, and yet no inflation crisis occurred.

So much for the snowball.

Brett is sticking to an incorrect model. You, on the other hand, seem to be actively hoping for the economy to crash because Biden is in charge.

Trump over country once again, eh?

[Brett Bellmore]

"Yes, the rate has crept up over the year, but it’s nowhere near catastrophic levels."

That is just to say that we are not at the crisis yet. But we are currently borrowing about a third of federal spending, debt is rising rapidly, and, famously, "What cannot go on will not go on."

The problem is that, while we haven't arrived at the crisis yet, we probably have passed the point at which the crisis could have been averted.

[Sarcastr0]

You refuse to define the lenders, you seem to acknowledge that there will be no step function reversal now.

You have reduced everything to debt bad we will never balance out budget so doom.

debt is not meaningless, but you are still clinging to the analogy with personal debt for your logic. It’s why you feel right but fold without substance when asked to back it up.

[bernard11]

In order to balance the budget, spending would have to be reduced to $3.781T, a 38% spending cut. That wouldn’t start paying down the debt, it would just stop it from growing.

Federal debt is about $34T. Let’s say we wanted to pay it off in half a century. That’s $680B in principle payments a year.

We’d have to reduce spending by 50%, if our goal was to pay off the debt in half a century. That’s how deep a hole we’re in.

Interesting that you keep talking about cutting spending, but never about raising taxes. This is precisely why it is impossible to take Republicans, or conservatives, seriously when they wail about the deficit.

And of course it's worse than that. They don't actually want to cut the deficit. They want to cut spending so they can hand out even more tax cuts to billionaires.

[Armchair]

One of the issues however, is that taxes have gone up. Dramatically.

A good way to look at it is the % of GDP that is government revenue (all levels)

If you look at that, since 1960, the % of GDP that is government revenue has climbed from 27% of GDP to 37% of GDP in 2021 (the last year with actual data). Taxes have gone up 37%....as a % of GDP. Far more if you just use constant $ per capita. (From under $5,000 per capita in constant 2012 $ to $21,900 per capita in constant 2012 $ today.)

https://usgovernmentrevenue.com/revenue_chart_1960_2028U%Sp_25s1li111mcny_F0t

[Armchair]

"The fact is that convincing people is a very difficult, if not an impossible task. "
-Yes, especially if you've lost their trust.

"I have repeatedly pointed out that people are undertaxed for the services they receive. "
-Are they? How does government spending on a given service now correspond to the same service 50 years ago?

"But as you can see people are very resistant to anything that raises their costs."
Depends. A lot of times they'll put things on the ballot (especially at the state or local level) that ask for increased taxation or a bond for a given spending item. You'd be surprised how often that passes.

"Your suggestion to reason with the public is in my opinion useless."
-Well, that's how Democracy works. It's better than all the alternatives.

[Nelson]

"In 2025 a number of tax breaks from the 2017 tax cut will go away and I expect you will again hear a howl. How do you tell people that they are going to have to pay more for the services they want?"

With most tax cuts, that's a problem. With Trump's tax cut, it won't. There was almost nothing beneficial to middle class voters, so they won't "lose" anything. In blue states, with the SALT cap removed, the impact will probably be beneficial to the middle class.

Screwing the blue and purple states and skewing the cuts to the rich made Trumpkins delighted at the time, but it means that the most active cohort of voters (the moddle class) will see an improvement, not a penalty, in the targeted states.

The red states will howl, but just because they are always bitching about something as our "more perfect union" continues to move away from outdated traditionalist cultural norms.

[bernard11]

1. An apple costs $1.00
2. The government subsidizes the apple, by printing money and giving it to people to buy the apple.
3. The subsidized apple now costs $0.75

I assume you mean the $.75 price is from the point of view of the consumer. The price received by the apple grower goes up, not down. (The subsidy is greater than $.25, since part of it flows to the seller.)

6. The government realizes inflation is a problem, and stops subsidizing the apple
7. The apple now costs $1.25

Huh? Once the subsidy disappears the demand curve shifts left, reducing the price of apples, just as the subsidy shifted it right.

I mean, if you are talking about inflation beyond that caused by the subsidy then OK, but do apples have to do with it?

4. Inflation results from the printing of money.
5. The apple now costs $1.00, even subsidized, due to inflation

I think you are double-counting here. You're saying the subsidy both drives the cost of the apple both down and up.

Your mechanism doesn't make a lot of sense to me.

[Armchair]

Perhaps this will be easier to visualize using a constant currency (call it “G”) and the actual currency “$”

1. 1G = $1 = 1 Apple.
2. Government subsidizes apples by 0.25 cents
3. 0.75G = $0.75 = 1 Apple
4. Government prints money in order to pay for subsidy. This causes inflation. (0.75G = $1).
5. Due to inflation, the price of apples goes up. (0.75G = $1 = 1 apple).
6. The government stops printing money. Current inflation doesn’t revert. (0.75G = $1).
7. The government stops the subsidy. 1G = 1 Apple = $1.25

See? The apple started and ended at 1G (the constant currency). But because of inflation, the apple costs more now than it did before.

[bernard11]

Well, it is easier to see what you are claiming. I assumed the inflation in question was the *increased price of apples due to the subsidy. But it seems you are postulating a general inflation unconnected to your subsidy (even though you say Government prints money in order to pay for subsidy. This causes inflation)But then the apples are irrelevant to your argument. All you are saying is that when inflation recedes prices don't. That depends, of course, on how much it recedes. If it turns into deflation prices will drop.

[*Side note:

Say the government gives everyone $.25 every time they buy an apple.

Guess what. The price of an apple (generally) goes up, from $1.00 to $1.10, say, and the growers get part of the $.25. This is because demand increases - the demand curve shifts out. For example, someone previously willing to pay $.90, but not $1.00, for an apple is now willing to pay $1.15, because the quarter they get brings the cost down to $.90 from their POV. (You'll find this in Chapter 1 or 2 of that economics book you never paid attention to.)]

[Armchair]

The apple is of course, an example. (I'm ignoring second order effects for this)

In practice, the government subsidized "everything" by printing money and giving it to people. And widespread inflation resulted.

When the government stopped printing money, prices remained high

In order for deflation to occur, the government would have to actively withdraw money from the economy (via taxation and burning of the surplus funds). That has not occurred

[bernard11]

If productivity grows or supply shocks recede (sort of the same thing) prices can certainly drop.

As for your apple, well you are actually double-counting. First, the subsidy - inflation - caused apple prices to go up. Then somehow it did it again.

[Stephen Lathrop]

Armchair, in your hypothetical where is the line for massively increased unemployment, with consequent reduction in wealth, consumer purchasing, and the velocity of money?

[Armchair]

This is the simplified example.

[ThePublius]

Inflation is a monetary phenomenon, and it's caused by monetary policy, which includes increasing the money supply - i.e., printing money - that the Biden administration did profligately.

The current situation is an affordability crisis, as the previous high inflation since 2020 pumped up prices, and real wages have declined.

https://pjmedia.com/rick-moran/2024/01/07/we-have-an-affordability-crisis-and-its-slamming-our-food-budgets-n4925282

[Martinned]

A little knowledge is a dangerous thing...

[Krayt]

I have been assured by two people that the common man’s investment portfolios have done well. Most people don’t even know what the price of milk is, famously, because Chef does all the food purchases.

[grb]

ThePublius : "Inflation is a monetary phenomenon, and it’s caused by monetary policy"

Two Points :

1. Inflation isn't only caused by monetary policy.

2. Which would be the case here. Inflation was/is a worldwide phenomena in which the U.S. fared better than many other similar developed nations.

That makes ascribing it to Biden a difficult sell for anyone who pays attention to the bigger picture.

[Bwaaah]

Inflation *is* caused by monetary policy. Not all price increases are due to inflation.

[bernard11]

Sounds a lot like No True Scotsman.

[Brett Bellmore]

"Inflation", defined as a secular increase in the price of EVERYTHING, is unavoidably a monetary phenomenon; It's actually a decline in the value of "money" relative to everything else, while relative prices between various products might not change at all.

That's not to say that you couldn't see a fairly general, but not universal, increase in prices, due to the cost of some common factor like energy, or shipping costs, going up. But while that wouldn't be universal, and thus not technically inflation, it might be hard to distinguish for somebody who wasn't looking closely enough to notice that not everything was going up in price by the same factor.

I believe that's what happened world-wide, the Covid response triggered collapse of international supply chains caused a widespread, but not universal, (And thus not technically "inflation".) increase in costs. The US fared better than many nations (But worse than many others!) because we have an extremely large and diverse economy, and are thus less dependent on international trade than most nations. So a collapse of international supply chains influences our domestic prices less than for most countries.

This is distinct from the monetary inflation that set in after 2020 due to outrageous levels of deficit financed government spending. But we were seeing both.

[grb]

Brett Bellmore : “Inflation”, defined as a secular increase in the price of EVERYTHING, is unavoidably a monetary phenomenon”

Well, yeah, inflation is a “monetary phenomenon”. It can be caused by monetary policy. It is always treated by monetary policy. But it isn’t exclusively caused by monetary policy.

As for your distinction between “fairly general, but not universal” price increases, have you really thought that thru? Fairly general becomes general, which becomes pervasive, which becomes universal. The whole (deadly) point of inflation is the economy chases its own tail – with price increases in one sector prompting increases in prices & wages elsewhere. There isn’t some mystical separation between “fairly general” price increases vs “technical inflation”. It simply whether you’ve reached the tipping point where localized price hikes can no longer be absorbed or contained.

And this bout of worldwide inflation clearly did not come from monetary policy, but the other factors you discribed. You might say this:

“Economy-wide supply issues started an inflationary spiral across the globe. The U.S. fared better than many other countries but might have done better still without the additional spending Biden got at the begining of his presidency.”

It would be a perfectly reasonable statement. It is undoubtably true to a degree. And it makes sense, unlike claiming massive economic upheaval, supply-chain issues not seen in living history, and the snowballing price hikes they generated isn’t “technically inflation”. That makes no sense.

[grb]

Additional Point :

I work in the construction industry as an architect. During the worst period, we had unprecendented supply issues across the entire range of building products, contractors trying to outbid everyone else to get what they need, suppliers recognizing demand in the marketplace (while responding to their own higher costs) and massive delays which caused additional cost overruns.

Do you think these experiences were "fairly general"? I don't. I think they were affected-by and affected every other sector in the economy. You create two parallel worlds where (in one) the worldwide economy is decimented by supply issues never seen in my lifetime while (in the other) real "technical" inflation is caused by Joe Biden.

So what's the deal? No spending by Joe and the United States alone would have been insulated from the spiralling inflation seen worldwide? At what point does this stop making sense to you?

[Brett Bellmore]

The chief difference here is that a change in prices due to a reduction in value of money acts proportionately across the prices of everything, because it's just the money itself losing value.

Whereas an increase in prices due to the cost of some widely used material or service suddenly becoming hard to get will tend to effect prices in a non-uniform manner, relative to how much of that material or service goes into it.

For instance, while a sudden oil shortage WILL tend to push up the price of everything, obviously it's going to push up the prices of substitute fuels and energy intensive products more than things that have very little energy investment in them.

Cost shocks have a much more heterogeneous effect than monetary inflation.

[Sam Bankman-Fried]

The persistent inflation is shelter inflation which was caused by Trump Tax Cuts and lockdown orders and Fed keeping rates too low and other things like Bitcoin and Airbnb. And we know that because cars went up in price while sales declined and luxury goods selling in big numbers.

[bernard11]

The chief difference here is that a change in prices due to a reduction in value of money acts proportionately across the prices of everything, because it’s just the money itself losing value.

This is utter balderdash. Nonsense.

Suppose the government sends everyone $10,000. Inflationary. But do you think that everyone's demand curves will shift in exactly the same way? Give that a moment's thought and you'll see it's ridiculous.

If you got a big raise would spend the extra money proportionately to how you spent it before? Of course not.

[bernard11]

Cost shocks have a much more heterogeneous effect than monetary inflation.

Yes, but that doesn't mean an increase in prices due to supply shocks isn't inflation. Some such shocks are short-term, others longer, but if there is a general increase in prices it is inflation, however caused.

[Brett Bellmore]

I suppose it's a question of definition: Sure, if you define "inflation" as just "prices going up for any reason whatsoever", prices rising from a cost shock is "inflation".

But cost shock price increases are different from monetary inflation in a lot of ways. Aside from being heterogeneous, they're also reversible. When the cause of the cost shock goes away, the prices will tend to go back down again.

[Martinned]

Sure, if you define “inflation” as just “prices going up for any reason whatsoever”, prices rising from a cost shock is “inflation”.

As most people do that haven't mainlined too many Milton Friedman videos on Youtube.

But cost shock price increases are different from monetary inflation in a lot of ways. Aside from being heterogeneous, they’re also reversible. When the cause of the cost shock goes away, the prices will tend to go back down again.

Do they? So you're anticipating that lower electricity and gas prices will translate into lower prices of everything else in the economy?

Unrelated, there's this great bridge that you might like to buy. I'll offer you a great price.

[Brett Bellmore]

"As most people do that haven’t mainlined too many Milton Friedman videos on Youtube."

I watched them when they were originally run on PBS. You know, before we got a President who bragged that Milton Friedman wasn't in charge anymore, and everybody with a brain realized that high inflation was coming back?

[Martinned]

And did watching Milton Friedman on TV help you understand why we had more than a decade of super-low inflation, followed by 3-4 years of very high inflation? Because I would humbly submit that monetarism doesn't shed a single ray of light on either phenomenon.

[Brett Bellmore]

And I would submit that it was actually due to Milton Friedman still being in charge, if only partially. Biden may not have started the process of repudiating monetary sanity, but he evidently finished it.

A President saying "Milton Friedman isn't running the show anymore!" is like a hospital administrator saying, "Ignaz Semmelweis isn't running the show anymore!" It's a signal to anybody who is paying attention that things are about to get very ugly.

[bernard11]

I suppose it’s a question of definition: Sure, if you define “inflation” as just “prices going up for any reason whatsoever”, prices rising from a cost shock is “inflation”.

Yeah. We can either use the generally accepted definition or one you make up.

[Nelson]

"Sure, if you define “inflation” as just “prices going up for any reason whatsoever”, prices rising from a cost shock is “inflation”."

Yes, that is what inflation is. Inflation doesn't differentiate between causes of prices increases. It just recognizes that prices have increased.

[bernard11]

“Inflation”, defined as a secular increase in the price of EVERYTHING, is unavoidably a monetary phenomenon; It’s actually a decline in the value of “money” relative to everything else, while relative prices between various products might not change at all.

But that's not how it's defined. It's a general, not necessarily universal increase. Indeed, prices do not generally universally increase, and even if they (rarely) do relative prices won't stay constant. Sure, all relative prices might stay the same, once in two or three trillion years, but they won't.

That’s not to say that you couldn’t see a fairly general, but not universal, increase in prices, due to the cost of some common factor like energy, or shipping costs, going up.But while that wouldn’t be universal, and thus not technically inflation, it might be hard to distinguish for somebody who wasn’t looking closely enough to notice that not everything was going up in price by the same factor.

Of course that would be inflation. Please stop commenting on economics until you learn some.

[Life of Brian]

Government spending gave people an illusion of a cheaper cost

When exactly did we see costs go down in response to the COVID spending orgy?

Or is this just one of those non-falsifiable “would have been worse without it” deals?

[Brett Bellmore]

I think what's meant is that the government spending, to the extent that it involved direct handouts of cash, buffered the increase in prices. When the handouts went away, so did the buffer, and people were exposed to how much poorer they'd become relative to prices.

[Life of Brian]

Yeah, that's what I meant by "would have been worse without it." OP seems to presume that had they not infused a massive bolus of cash into the system, prices still would have permanently spiked. Not sure how that's supportable beyond an article of faith. Non-monetary forces like fuel costs and the supply chain issue you discuss above generally came and went.

[bernard11]

the government spending, to the extent that it involved direct handouts of cash, buffered the increase in prices.

But where did the increase come from? If you claim it was from the handouts then wouldn't it have gone away when the handouts did? Just like you will spend less if that raise I mentioned went away.

In fact, much of it came from supply shocks.

[Life of Brian]

That seems backwards to me. The supply shocks have generally gone away, as I mentioned above. The increase in the money supply has not.

[bernard11]

The supply shocks have generally gone away, as I mentioned above. The increase in the money supply has not.

So the portion of the price increases caused by the increased money supply remains.

[Life of Brian]

Right. And there's a fairly unsubtle inflection point in the CPI in the summer of '22, which seems like about the right timing for that supply shock premium to have finished unwinding itself out of the system. But it never actually goes down -- just goes sideways for a month or two and then takes off again at a somewhat shallower slope -- so the M2 component would appear to predominate.

[bernard11]

Well, it remains until productivity increases make it disappear. Then you need more money.

It's a tricky business.

[Sarcastr0]

Re-read, and try again.

[Michael P]

The claim was that removing COVID funds caused the illusion of rising costs, meaning those costs were higher than before the COVID funding floodgates opened.

I read just fine, asshole.

[Sarcastr0]

those costs were higher than before the COVID funding floodgates opened.

So government spending is not inflationary, it made costs go *down*?

This is you being overdetermined. Inflation is caused by government spending. It is also caused when the government stops spending.

Point is, all bad things are due to the government.

Substanceless and childlike.

[Don Nico]

"Point is, all bad things are due to the government. "
The usual distortion of a commenter's point made to ridicule the commenter.

[Sarcastr0]

Hey Don, as usual you failed to read.

My comment reading up to that walks through how their logic is overdetermined to reach exactly that point.

[Don Nico]

No, you called a specific price increase inflation. That is false. YOu willfully mischaracterize in order to demean. ANd actually you know better.

[Sarcastr0]

Below it continues - Michael has fixed it so the government both spending and not spending makes inflation go up.

[Michael P]

No, government spending caused the inflation. Then it stopped, and people started complaining because they had to bear the full (new) costs. End of story.

[Sarcastr0]

Sekret inflation. Got it.

[grb]

Michael P : "End of story."

End of fairy tale. What caused inflation was economies around the world resuming full-speed after the covid slowdown. That caused supply chain issues never before seen in any recent history. How ideologically blind do you have to be not to see that?

[Michael P]

The products with the most inflation (fuel, food, housing, used vehicles and for some reason car insurance - see https://www.bls.gov/opub/ted/2023/consumer-price-index-2022-in-review.htm) don't have weird or terribly complex supply chains. The products with big supply chains had less inflation. And "things being normal" is not usually a cause of inflation, whereas massive government spending is.

[Nelson]

Fuel, food, and housing are the most volatile, not the most inflationary. There's a difference.

[grb]

Michael P : "The claim was that removing COVID funds caused the illusion of rising costs, meaning those costs were higher than before the COVID funding floodgates opened."

Do you honestly believe that?!? Covid funds were widely dispersed and affected everyone thru their diffused effect. But removing them did not create the "illusion" of more expensive eggs or a massively more costly rooftop HVAC unit. Those cost increases came towards the end of covid funding, were never masked by those funds, and so no "illusion" was possible. Their price hikes were generated by supliers unable to get enough product to the marketplace and I've yet to see anyone up&down this thread make a serious connection from those supply problems to covid funds.

The closest attempt was by Brett, and he "solved" the problem by separating it into the spiralling and explosive cost increases cause by post-covid supply issues and "technical" inflation (which is something very apart, very special, and caused exclusively by the very bad Joe Biden).

Not very convincing, but at least he tried.

[Brett Bellmore]

"which is something very apart, very special, and caused exclusively by the very bad Joe Biden"

I'm pretty sure that the explosion of deficit spending started under Trump, not Biden. But otherwise, sure.

[Sam Bankman-Fried]

The economy is relatively strong…I think Powell/Fed is the only party that performed suboptimally. Remember we should compare the last several years to what could have transpired and I think everything could have gone much worse. Same thing with something like the Afghanistan withdrawal—Trump’s special envoy said he was satisfied with how it transpired because it could have been much worse.

[Mr. Bumble]

Should the US have ceded control of the Panama Canal to Panama. Is Panama competent to continue to operate and maintain the canal?

[Martinned]

Should the US have ceded control of the Philippines to the Philippines? Are the Philippines competent to continue to operate and maintain the islands?

[ThePublius]

Not nearly equivalent. The Philippines are not a strategic choke point. Panama is. It is vital to U.S. national security and world trade.

[Martinned]

That may well be, but that's not the test that Bumble applied.

[Michael P]

And the canal isn't the whole country, so your analogy was even worse.

[Martinned]

Why do you think that's relevant?

[Michael P]

Are you drunk? Stroking out? High? martinned?

Most of us understand that one artificial feature is not the same as a large group of (7641) islands.

[Martinned]

Why is stealing part of someone else's land better than stealing all of it? They're either both OK or neither is.

[ThePublius]

"Bunau-Varilla negotiated the Hay-Bunau-Varilla Treaty of 1903, which provided the United States with a 10-mile wide strip of land for the canal, a one-time $10 million payment to Panama, and an annual annuity of $250,000. The United States also agreed to guarantee the independence of Panama."

That's hardly stealing, Mr. History Professor.

[Martinned]

No, it's stealing because the US strong-armed Panama into declaring independence from Columbia and then immediately made that deal with its new "friend". Lots of colonial powers made lots of treaties, but that doesn't make it not stealing.

[ThePublius]

So you have some magic method, or particular insight to determine what's stealing and what's not? Can you name a single case like this that's not stealing?

[Sarcastr0]

Martinned is right - we were basically at the height of American imperialism with the Canal.

I don't know that there's much practical upshot, but Martinned is spitting historical fact.

[Mr. Bumble]

More like sputtering.

[Dr. Ed 2]

Panama didn't want to be independent?

[Martinned]

@Ed: "Panama" as a concept didn't exist until 1903, following a series of shenanigans involving the US government and others.

[Brett Bellmore]

I've got to agree with Martinned here: We basically invented Panama to get control of the canal zone.

I think that's more or less how it was described in my HS history textbook, aside from using the term "steal".

[Nige]

'So you have some magic method'

Holy moley.

[Bob from Ohio]

"US strong-armed Panama"

No, there was a pre-existing separatist movement. We just took advantage of the situation. No theft involved.

We sent a warship to insure that Columbia wouldn't try anything but Columbia ahead just emerged from a decade long civil war so probably couldn't have done so anyway.

[Brett Bellmore]

Of course there was a pre-existing separatist movement. Which weren't going to get what they wanted without our help.

We didn't negotiate with Panama, we created Panama to have a 'negotiating partner' that was more compliant than Columbia.

[ThePublius]

I have no idea what you're talking about. His questions were quite direct, and I answered them appropriately, 'though perhaps not as you would.

[Mr. Bumble]

It would have been better if they conditioned it on retaining the naval base at Subic Bay, similar to the base at Gitmo.

[John F. Carr]

The lease agreement worked well for over 40 years.

[ThePublius]

1. No;
2. no.

https://www.stripes.com/theaters/americas/2024-01-07/saving-the-panama-canal-12584029.html

[Bob from Ohio]

"Should the US have ceded control of the Panama Canal to Panama."

No.

Worst US president made a bad decision.

[ObviouslyNotSpam]

"A man, a plan, a canal: Panama!"

Leigh Mercer, take a bow.

[Commenter_XY]

No, and Yes (with help, preferably from US and not China).

[Moderation4ever]

I went to a Green Bay Packers game yesterday. I am not a regular attendee, but notice that despite having a seat I spent the whole time standing and watching, because everyone else did. I also did this at a concert in 2023. Is this the new thing to stand at events rather than sit and watch? Are the seats really necessary?

[Frank Drackman]

So you’re “That Guy” I’d say like World Series fans who’ve never been to a Regular Season game (They’re the ones cheering wildly at routine pop flys) yeah, but at least you made it to a regular season game. (Haven't been to a Falcons game since 1986, because well, they're the Falcons)
Yes, fans like to stand at exciting games, and sometimes even yell and shout. It’s been going on at least since December 2, 1989, the first “Iron Bowl” played in Auburn, where the #11 Tigers came back from a 10-7 halftime deficit to knock the #2 Tide out of National Title contention 30-20.
Only the best day of my life. OK, maybe 2d or 3rd. Still remember this Old couple (really old, probably 60-65), Alabama fans, complaining, “Its so Loud!!!!”

Frank

[Sam Bankman-Fried]

WAR EAGLE!!

[ThePublius]

I hate that. People should sit the f* down. Can you imagine that in a movie theater, at a concert, at the philharmonic, etc.? Recall the age old refrain of "down in front!"

[Frank Drackman]

see above

[Martinned]

Calm down old man. This is what cinemas look like today: https://www.dailymail.co.uk/tvshowbiz/article-12635515/Taylor-Swift-etiquette-row-breaks-fans-dance-sing-inside-cinema-Eras-Tour-film-Swifties-praising-atmosphere-magical-slam-revellers-saying-not-you.html

[Frank Drackman]

"Old"?? Born on the 4th of July Baby!!!!!
Umm, Ok, July 4th, 1962, you may have a point.
But you're the one complaining about having to stand at an Athletic Event, Sedentary Lifestyle Much?
and I've been to movies recently,
OK, June 2022 was last movie I saw, "Top Gun Maverick" (You know, there were a few inaccuracies about Naval Aviation), last movie I had any interest in seeing, sorry, not into the Marvel "Universe"

Frank

[ThePublius]

Get lost. That behavior is just as obnoxious as people talking back to movies in theaters, making loud comments, etc. That's why, as a youth in the Bronx, I stopped going to movie theaters in neighborhoods where that "culture" was common.

[Frank Drackman]

"People"??
We all know what kind of "People" you mean.
Of course I happened to see "Top Gun Maverick" in Boise Idaho, none of those "People" in the audience.

Frank

[Randal]

Wait, you think people should sit silently at sporting events?

You might like tennis.

[Bwaaah]

I went to a Phish concert last year (my first concert in like 40+ years). Everybody stood the whole time. I stayed down and bopped in my seat. I didn’t see any of the performance, but the music was great. (The Radio City Music Hall has a great ceiling too.)

For those of you who where were there: I was that guy sitting down.

[Sam Bankman-Fried]

I was the guy that brought his bong.

[Estragon]

I’m sorry but your story is fake, phish did not play radio city last year, or anytime in recent memory.

Having actually been to a phish concert in Madison Square Garden as recently at this New Year’s run I can say… yeah— not a ton of sitting.

[Bwaaah]

My mistake. It was the Trey Anastasio Band. (I'm not a Phish fan, so I'm weak on the technicalities.)

[Estragon]

Yes now your story checks out

[Bwaaah]

And true to the story, I'm quite sure that very few people saw me sitting down in my seat (bopping). They couldn't possibly.

[Krayt]

No it is not new. I don't like concerts or sporting because idiots further down stand, and everyone else does to see past them.

The only cure is a heads up display on your eyeball, showing one penny a minute deducting from your savings for each upstream person required to stand because you are an idiot. Barring that, anti-terrorist overwatch sharpshooters using optional tranq guns.

[Bob from Ohio]

"I went to a Green Bay Packers game yesterday. "

The Pack is Back!

I'd like to go to Lambeau once for the experience but football is best seen on TV.

[Sam Bankman-Fried]

The way the Green Bay Packers ownership is structured is the dumbest thing in America. Basically Green Bay and Wisconsin are sitting on $5 billion in value in something easily liquidated and if they sold it to a private entity they would have an endowment like the Duke Endowment. That would mean Marquette could be upgraded to a university as prestigious as Notre Dame among many other things the state could upgrade. Right now the Packers Annan entity exists to pay players…an endowment would benefit everyone in Wisconsin.

[Moderation4ever]

You are wrong very wrong. Look at most major league teams and you will see that they are in major cities. By having the team owned by stockholders, rather than an owner, it is harder to move. Not impossible but harder. If Green Bay had an owner the team would move on and one of the few truly loyal fan bases would disappear forever. The Green Bay Packers are truly unique, that are in a sense community owned and based, something not much appreciated in a capitalist system.

[Moderation4ever]

Going to Lambeau field is more than going to a game. It is an experience. You are going to a unique experience and in many ways a throwback in history. A field named after a person, not a field whose name has been sold to the highest bidder. A place where one of the coldest games ever played was held, outside. Did the fans leave, no.

Football is best watched on TV, going to Lambeau is an experience anyone who loves football should do once.

[Nelson]

You mean the game where if they won, they made the playoffs, and if they lost, they didn't? I can't imagine why people were standing up.

[Michael P]

Joe Biden has officially-but-unofficially re-instituted racism as a policy of the United States government.

https://freebeacon.com/biden-administration/how-the-biden-administration-put-race-at-the-center-of-government-spending/

Thanks, demented follower of Woodrow Wilson and Jimmy Carter!

[Krayt]

Ya know, if people didn't keep doubling down, Trump may have Big Mac'd off into retirement.

Follow this chain:

1. We're not going after him as a political opponent, but for disinterested concerns over rule of law.

2. Hey, he lost! Yay!

3. Ahh, better keep going after him, or it will look like we're just after him politically. Crush with Jan. 6 stuff, as he can't possibly maintain honest disagreement.

4. Trump: Apparently maintaining honest agreement is a way out of it, and I get to keep irritating them to boot.

Nah. Must be something else.

[Brett Bellmore]

I do think it's vaguely possible that, if they'd laid off with the lawfare, he might have just retired. Just vaguely possible, not likely.

It's famously said that the reason dictators don't retire is that the retirement plan sucks. By going after Trump after January 20th, 2021, they awarded him the same retirement plan, made it clear that his only way of escaping the attacks was to become President again. It took retirement off the table.

But, really, I think he'd have run again anyway, because the defeat was an insult to him he'd want to erase.

[Magister]

Trump's legal problems after January 20th, 2021 were mostly of his own doing (not returning the documents requested of him, among other things). Of course he was going to run again to grift donations from his followers and because of his malignant narcissism. But it's good of you to agree that Trump responded to his legal jeopardy by running again, rather than that prosecutors went after him because he was running again.

[Brett Bellmore]

No, I don't think they went after him because he ran again. They went after him because he'd had the temerity to run the first time, and not lose.

I do think it's possible that he might not have run again if they'd just left him alone. Unlikely, but possible.

[Nige]

Again: he mostly got HIMSELF into legal difficulties. Nobody went after him. For the rest, elected official gets heightened scrutiny. Go back in time and tell the Clintons before Bill got elected.

[David Nieporent]

Again: he mostly got HIMSELF into legal difficulties.

In particular, the documents case in SDFL is pure unforced error. The insurrection stuff he at least had a reason to do, even if that reason was evil. But his actions that led to the documents case were utterly pointless, driven purely by his own 6-year old notion that "Nobody can tell me what to do." He was given every chance to head off that prosecution and refused to take any of them.

[Mr. Bumble]

Speaking of documents cases, how is that Special Counsel case into Biden's handling of classified documents progressing?

[bernard11]

Look! A squirrel!!

[David Nieporent]

Well, there's no "case." There's an investigation to see if a case is appropriate. Given that Biden did not obstruct justice or file perjured affidavits, it seems unlikely the investigation will say yes.

[OtisAH]

I don’t know we ever will but if we ever get to hear the whole story of Turnip’s theft of top secret documents we will learn that “petulance” was only part of the story. And a smaller part than you’d expect.

[Nige]

'Nah. Must be something else.'

Oh, none of it is the fault of Trump or the people who vote for him? What a new and refreshing position. From 2015.

[Krayt]

Plenty of flaw all around. And 2015 is kind of the point, one initiative to kick him fails, move on to the next.

[Nige]

'Kick' him? What, he's supposed to run unopposed? Get subjected to no scrutiny while seeking the highest office in the land? Presidential immunity to apply before and after taking office? The myth seems to be that if everything was made nice and smooth for Trump to take power, he would never take power. That if he is never held accountable for anything, then he won't ever do anything wrong.

[ReaderY]

The Trump certiorari petition brief’s first merits argument was that “disputed questions of presidential qualifications are for Congress to resolve.” The brief makes several arguments on this point. but the last one made disputes my position that the State of Colorado has independent authority to impose its own qualifications for President.

Trump’s best case for this position is Anderson v. Celebrezze, 460 U.S. 780 (1983). In that case, the Supreme Court held that Ohio’s ballot access deadline for independent candidates violated the First Amendment because it gave independent candidates an unfair disadvantage over major party candidates.

First, I would overrule Anderson v. Calebrezze. It was a 5–4 decision at a time where the Burger Court was much more liberal overall than even the pre-Trump Supreme Court. As then-Associate Justice Renquist wrote for the 4 dissenters, the only federal interest the United States has in how a state legislature exercises its Article II power to appoint its electors however it sees fit is to enforce Due Process and Equal Protection requirements, and the state easily has a rational basis for its filing deadlines.

However, I don’t think this case has to be overruled for Trump to lose, as it can be distinguished. I would propose interpreting Anderson in a way that treats the unfairness problem the Court was concerned about as primarily an Equal Protection issue rather than a First Amendment issue.

Under this interpretation, once a state creates a popular election and sets qualification rules for candidates, it must then give every qualified candidate an equal shot at the ballot. This would be consistent with my proposed principal that the Equal Protection Clause requires that whatever residual say a state legislature chooses to delegate to the citizen-voters has to be delegated evenly across them. Analogous to that principle, whatever candidates the state legislature’s winnowing process leaves up for grabs also have to get an equal shot. Anderson thus merely held that heightened scrutiny is used to determine if the shot among candidates is really equal, just as Bush v. Gore held that heightened scrutiny is applied to the citizen-voters’ shot.

Under this interpretation, Anderson’s imposition of heightened scrutiny on ballot-access rules can be interpreted to be consistent with both Bush v. Gore and my general theory about how the Equal Protection Clause cabins but does not in any way eliminate state legislatures’ plenary authority to determine how electors get appointed.

So I disagree with the Trump brief’s expansive interpretation of Anderson, which it interpreted as saying a state gets no say at all in who can appear on its presidential ballot. I see such an interpretationas rendering state legislatures’ Article II appointment powers a nullity. As the Hamilton Elector cases showed, the Supreme Court has not been inclined to interpret ifs prior cases in a way that completely eliminates state legislatures’ constitutional powers.

[ReaderY]

After all, Anderson really was primarily concerned with the “burden that falls unequally” on independent candidates. And addressing unequal burdens is primarily thought of as the realm of the Equal Protection Clause. So while reinterpreting Anderson as an Equal Protection Clause case rather than a First Amendment case, does somewhat reinterpret both the legal basis and the scope of the decision, it’s not in any way unfair to either the holding itself or the core rationale of the holding.

Thus I would apply Andersonwithout basing it on the First Amendment at all, and while disagreeing with Trump’s claim that Anderson’s basing its decision on the zfirst Amendment means that self-proclaimed candidates for President have a First Amendment right to be on the ballot in the first place. I don’t think that’s true. I don’t think the First Amendment gives self-proclaimed candidates for President to be included in a state legislature’s presidential elector appointment process than it gives self-proclaimed candidates for Supreme Court Justice a right to be included in the President and Senate’s appointment process, e.g. to be on the President’s short list or to be considered by the Senate.

[ReaderY]

This could be done by reconciling Anderson with later cases Bush v. Gore and Chiafolo v. Washington. Both expressly reaffirmed the plenary power of state legislatures to determine how presidential electors get appointed, which Anderson arguably left in doubt. Bush v. Gore established the proposition that this power continues to be plenary yet is tempered by the 14th Amendment Due Process and Equal Protection Clauses. As argued above, Anderson can easily be interpreted to fit within this framework without overruling its core holding or the basis of its reasoning.

[ReaderY]

Note: the “Anderson” case I discuss throughout these comments is the 1983 Supreme Court case of Anderson v. Calebrezze, not the current case, Trump v. Anderson. I should perhaps have refered to this case as “Calebrezze,” rather than “Anderson,” to avoid confusion.

[ThePublius]

Social Security, Medicare, and FSA and HSA accounts.

Why are these so complicated, and so full of rules that, if not followed or planned optimally, can actually hurt you, reducing your benefits? Is it intentional, or just the result of congressional and bureaucratic incompetence or neglect?

[Krayt]

They don't want you un-dependent-ing yourself from direct government help, much less complete takeover. People without whines cannot be used to gain power.

Once I realized that, why your FSA forfeited all money at the end of the year, instead of rolling over, became obvious.

[Magister]

More likely the federal government doesn't want to lose tax revenue by making all medical expenses tax deductible. You can deduct them if they exceed a percentage of your adjusted gross income, or if you predict in advance how much they will be through an FSA. Your employer can set up your FSA to roll over up to $640 to the next year, so it's your employer's fault if they didn't do that.

[OtisAH]

Sounds like dumbass here missed a deadline, folks.

[ThePublius]

No, I didn't miss any deadlines, I am smart enough to have studied this stuff, dickhead.

[OtisAH]

Bullshit.

[SimonP]

Most of these rules are there because of Republicans. A lot of these programs' features are designed to limit their impact on the CBO scoring, or they're negotiated limits to the benefits themselves designed to limit costs, or so on. The same goes for pretty much any other government benefit. Republicans love to add red tape so that it's harder to qualify for, or keep, the benefit.

I think we should dispense with all of these programs and roll up their cost into a single cash benefit that individuals can use at their discretion. But that wouldn't give Republicans enough opportunities to control how people live, so it's a non-starter.

[Sarcastr0]

Moral hazard.

Some folks are afraid someone might be benefitted who do not deserve it, and so burden those who are intended beneficiaries a whole bunch to make sure that doesn't happen.

The line between being a good steward of taxpayer $$ and overburdening a program with complexity turns out to be a subjective one.

[Martinned]

It's not as if private sector insurance is somehow a paragon of simplicity. Insurance leads to massive bureaucracy whether it's in the private sector or in the public sector.

[Sarcastr0]

Absolutely - where is the incentive for insurance companies to make things easy for even deserving folks to submit a claim?

At least the government is supposed to make things as streamlined as possible; private sector has minimum $$ spent technically acceptable.

[Absaroka]

Just FWIW, I worked for a BCBS for a few years, and the reason their policies were so complicated was largely because their customers - who are the patient's employers, not the patients - would say 'we'll sign up if you tweak the coverage to ...'. Every little freaking Mom-n-Pop business had custom policy terms.

Another example: they once were running some kind of analysis of claims, and had two numbers they thought should be the same, but were different. My mission was to find out why. The answer was that there was some policy term that applied per hospital stay - maybe a deductible of something, I don't remember. But if you are in the hospital for ten days for a heart transplant, hospitals bill every couple of days, so you see a bill for Jan10-13, then Jan13-16, then Jan17-20 or whatever. Is that one stay or three? You tell because they have a procedure code for heart transplant.

Well, some poor guy was in the hospital for a while with a broken leg. Then he was released, and as he hobbled across the street to go home a car hit him and broke some more bones. So now there is a broken bone claim for Jan 20-23. But that's a second deductible!

(I'm probably misremembering things - it has been lots of years - but it is a complex problem^H^H^H^H mess)

[Sarcastr0]

Oh yeah - nothing is simple at all in the world, and especially in health care in America.

Interesting podcast if you got 30 mins:
Athenahealth was just another healthcare provider facing the biggest problem US doctors face: not treating patients, but getting insurance companies to pay their bills. But then the company figured out how to fix the problem, by recognizing an overlooked expert toiling in the hospital basement.
https://www.pushkin.fm/podcasts/against-the-rules/six-levels-down

[Absaroka]

Thanks, interesting!

To, the meta point, yup. In the 1980's I was an entry level geek on a company with a big DoD contract. A big rollout was crashing and burning. We plebes absolutely knew the solution. We had told our boss, who says he told his boss, who said.... But somewhere in the game of telephone things got garbled. Word was the DoD was going to cancel, the company would be bankrupt, and we'd all be out of jobs. Like a few days from now. One day a gloomy VP stopped in. We asked why they weren't doing the simple obvious fix. Maybe the Army had disagreed or something? He was 'Whut??'. By the next day, problem solved.

Specific to health care, he is spot on. At least at the BCBS where I worked, they had been massaging spaghetti code to the point no one knew what it did. One time I got an one of those incomprehensible EOBs and thought 'hey, I work for BCBS, I'll just go ask the head of claims processing what it means'. I watched her and a growing bevy of experts hunched around a terminal for a half hour before wandering off. I never did get an answer.

I think I said it before, but a few years ago my wife got the E ticket health care ride. One day her surgeon mentioned that half the headcount - like 100+ people - at the cancer care center worked on billing.

I dunno what the solution is. I'm not sure most of the solutions bandied around would help. You can say single payer, but I'm not sure medicare is any easier to deal with than BCBS.

[Nelson]

It is. Or was, 30+ years ago. Medicare was actually surprisingly easy, relative to the private health insurance I've had ever since I started a career.

[Commenter_XY]

ThePublius, I can simplify one thing for you. If you are on medicare, you cannot contribute to an HSA. One other note, the FSA can rollover over a small amount of money that must be spent by March 31 of the following year, but it is healthcare plan specific (talk to your employer).

Is it intentional? Yes. A lot of special interests had a hand in writing the bureaucratic regulations.

[Reallynotbob]

In all the discussion about "of" and "under" in Section 3 of the 14th Amendment, I wonder if we've missed the "Silver Blaze" argument?

Those who argue the Reconstruction Congress did not intend Presidents to be disqualified by Section 3 offer proof by negative inference -- i.e. they say the "under" language certainly means inferior federal officers, but that there is insufficient evidence to conclude it encompassed Presidents and Vice-Presidents.

But if Congress' intent was to exclude the highest U.S. office-holders from the prohibition, there would be discussion in the Federal Register about the need to exclude them. I contend that the silence of the record supports the inference that Congress thought they were barring the rebels from holding any federal office, including the Presidency. The opposite would have been remarkable--and debated--even at the time.

Or is there such a discussion in the record and I'm just unaware of the history on that topic?

[Mr. Bumble]

Since it's an open thread:

Does Nikki Haley meet the requirement of "natural born" to be the President of the US?

[Martinned]

Yes. Next question.

[Brett Bellmore]

Why would she not? She was born here in South Carolina.

[Josh R]

There is a rump group that believes both parents need to be citizens at the time of your birth to be classified a natural-born citizen. I think they are mostly people who hate the result in Wong Kim Ark and at least want to impose some restriction on those born in the USA of non-citizen parents.

[Life of Brian]

Was one of her parents a citizen at the time of her birth? I thought not, but just took a brief look.

[M L]

As I recall Vattel's Law of Nations stated such a rule.

[Josh R]

I don't think Vattel was distinguishing between "natural-born citizen" and "citizen at birth." Given that Wong is the law (sorry, Vattel), Haley is a natural-born citizen.

[M L]

I tend to agree that Haley is a natural born citizen, not because of Wong, but simply because she was a citizen at birth. Persons can be citizens at birth by virtue of legislation or other legal basis beyond the constitutional requirement discussed in Wong.

[Sarcastr0]

Yeah, but you don't believe there is a birthright citizenship mandate in the 14A, IIRC.

[Brett Bellmore]

There's a birthright citizenship mandate in the 14th amendment, for people whose parents were "subject to the jurisdiction thereof". That leaves some wiggle room for edge cases like people who are only in the US on account of illegal immigration.

But not remotely enough wiggle room to threaten Haley's status.

[Sarcastr0]

Are you trying to argue children of illegal immigrants who are born here aren't citizens?

Because that's not the law.

[Brett Bellmore]

That's not the current jurisprudence, anyway.

[M L]

No, nobody is trying to argue that. The question is whether such a citizenship policy is mandated by the constitution.

[OtisAH]

You’ve momentarily forgotten that ending birthright citizenship is something MAGA wants to do and are likely to test once conditions are ripe.

[Brett Bellmore]

I don't think anybody wants to "end" birthright citizenship. Restrict it to cases where the parents have more of a relationship to the country than just being a tourist or entering illegally, sure. But not "end" it.

[Sarcastr0]

So make it neither birth nor right.

And if you don't think a weakened citizenship right would be used to go after this disloyal to the MAGA state you've not been reading this blog carefully.

[David Nieporent]

I really don't get why nativists think it's a good idea to declare that illegal aliens in the U.S. are free to commit whatever crimes they want with impunity because they are not subject to the jurisdiction of the U.S.

[M L]

You really don't get anything about the subject, apparently.

[Sarcastr0]

ML, I've seen the angels on the head of a pin stuff you've posted to try and prove that the policy you want doesn't require a Constitutional amendment.

It's amateurish outcome-oriented originalism.

Kinda rich to say DMN is the one not understanding the law.

[Josh R]

Haley was a citizen at birth because of Wong (whether or not she may have been because of a statute).

[David Nieporent]

The only problem is that (a) Vattel never discussed the issue of natural born citizenship; and (b) Vattel was not an American, and his discussion — of continental European practice — had no relation to the United States.

[Bwaaah]

Wait. Did I miss something? Did Donny say something about her birth certificate?

[Life of Brian]

Nah, it collapses into the whole "the baby was touching base" birthright citizenship issue. Apparently neither of her parents was a US citizen or permanent resident when she was born.

[Martinned]

So what? Did that make her parents somehow not subject to the jurisdiction of the United States?

[Life of Brian]

That's indeed the crux of the academic debate on this issue, as I imagine you know since it's been discussed around here a good deal over the years. Not going down that rabbit hole today -- was just clarifying the basis of the question.

[Martinned]

I'm not sure that it counts as "academic" debate, since it's one of those things that's only a dispute because some idiots insist on disputing it for political reasons. "Opinions differ on shape of the earth", etc.

[M L]

You’re wrong. Even Ilya Somin admits there is a legitimate debate about the meaning of "subjection to the jurisdiction thereof."

That is different from the natural born citizen issue however.

[Randal]

There's an "academic" debate on this issue is there?

I suppose you could say that any debate is "purely academic." Is that what you mean?

[M L]

More than academic. Congress will settle it by passing this:

https://www.govinfo.gov/content/pkg/BILLS-103s1351is/pdf/BILLS-103s1351is.pdf

[Life of Brian]

Introduced by one Harry Reid, no less. How the times they have a-changed.

[Randal]

Oh that's so sad, you've been clutching this dead horse for thirty years!

Politicians like to propose obviously unconstitutional bills that have no chance of passage. It's called pandering and posturing. It doesn't indicate any substantive debate about its constitutionality.

[M L]

Based on the ratification debates on the issue, I would call it an obviously constitutional law. The court has never held otherwise.

This noise about there not even being a debate on the issue is called pandering and posturing.

[David Nieporent]

Even if it weren't obviously unconstitutional on the substance, City of Boerne v. Flores makes clear that Congress has no power to provide its own interpretation of what the 14th amendment means.

[M L]

No but they have the power and duty to enforce the amendment, which necessarily carries with it some degree of interpretation just all government officials necessarily have to interpret the constitution.

Of course, if Congress passes the law I would expect it to be challenged and the issue probably decided by SCOTUS.

[TwelveInchPianist]

IIUC there's one academic on one side, and the rest of them on the other.

[M L]

More like 2 and 2 or something. The other open borders Ilya (Shapiro) called it a "close call." I had hoped that Michael Ramsey's paper would persuade and shed light, but it made me more convinced of the opposite conclusion.

[Bwaaah]

By "academic," he means it's a debate that only an academic seriously care about, i.e. nobody of consequence cares. But if it catches on, like because Donny says something about it, then it's no longer academic. It becomes real stupid instead of just academic stupid.

[Mr. Bumble]

Out of curiosity, what determines citizenship in your native Netherlands and the UK?

[Martinned]

Ius sanguinis or naturalisation. (And holding political office does not depend on how you became a citizen.)

Why does that matter?

[Mr. Bumble]

Don't get your bloomers in a twist. Just trying to educate myself.
While it may not matter there, we have a pesky Constitution that requires a citizen to be natural born to become president.

[Martinned]

Constitutions can be changed, so it's always good to flag areas where that might be a good idea, where it comes up in conversation.

[Bwaaah]

Curiosity didn't strike you as an honest reason? (A [blahblah] wouldn't be curious about anything. [blahblahs] always have ulterior motives. What's this [blahblah] up to?)

[Martinned]

Not here, no.

[Mr. Bumble]

So is it one or both parents?

[Martinned]

One

https://www.government.nl/topics/dutch-citizenship/becoming-a-dutch-citizen

[M L]

I would not say it collapses into that issue. I wouldn't conflate the two issues because "natural born citizen" most plausibly means, IIRC, someone who is a citizen at birth by the circumstances of their birth. Their citizenship at birth need not be constitutionally required, it may have any legal basis.

[not guilty]

I have long wondered whether "natural born citizen" cranks will start inquiring into whether presidential candidates were delivered vaginally of by caesarean section. Is the latter "natural born"?

[Don Nico]

Ahah! The man recalls Macbeth.

[Reallynotbob]

Vaccines still prevent death and long-term illness for COVID.

https://jamanetwork.com/journals/jama/fullarticle/2813910

[Frank Drackman]

I don't think you meant what you typed
Covid doesn't really die or get ill, it makes peoples
die or get ill.
Funny how you don't hear much about the Vaccine any more, except for the Military and various companies trying to get people they fired for not getting it to come back.

Frank

[Life of Brian]

They don't need to push it any more, you see -- we finally reached Fauci's keister-resident 85% vaccinated "herd immunity" threshold below which we needed to threaten to withhold health care and other basic services to the unvaccinated, so everything's cool!

Oh, wait a minute... no we didn't. Not even remotely close.

[Nige]

And now, finally, the poisons in the vaccine will kick in and cull the human herd.

[Martinned]

Now that he's dead, I think I'm allowed to admit that he was one of the all-time greats...

Bayern Munich and Germany legend Franz Beckenbauer dies aged 78

https://www.goal.com/en-us/lists/bayern-munich-germany-legend-franz-beckenbauer-dies-aged-78/blt588758d2c01bdb2b

[Martinned]

Here he is being a genius in the 1966 world cup (age 20).

https://www.youtube.com/watch?v=KEiQ8QOjMzI

[SRG2]

Now that he’s dead, I think I’m allowed to admit that he was one of the all-time greats…

My position entirely. One of football's gods.

[Bob from Ohio]

"One of football’s gods."

How many Super Bowl victories?

[SRG2]

Football, not hand-egg. 🙂

[Bob from Ohio]

No Super Bowls. Sad.

How many SEC championships then?

[Rev. Arthur L. Kirkland]

The SEC: Minor-league football in minor-league communities for minor-league fans.

But, to be fair, just about the biggest thing going in many or most of the relevant states.

[Frank Drackman]

Minor Leage? Like State College PA is so cosmopolitan. SEC Championship game got nearly 20 million viewers. Thats pretty good nows-a-days with 400+ channels. Gonna enjoy watching the Michigan Cheaters get beat by a Pac-12 team.

[Bob from Ohio]

Well, SEC is minor league as compared to NFL but SRG2 already established that Beckenbauer was not an NFL winner so going down the food chain. Not sure if I will get as low as the Big 10 though, that's like grade school football.

Georgia would smoke either potential "national champion" tonight.

[Commenter_XY]

Really? Some friends I have in MI beg to differ....

I don't want to bring up a potentially sore topic, like OH state and the Cotton Bowl. My MI friends however, have no such reservation, lol.

[Bob from Ohio]

I love it when an Ohio State University loses.

[Commenter_XY]

Should be a good game tonight,

[Rev. Arthur L. Kirkland]

How many SEC teams are unbeaten this season?

[Frank Drackman]

How many games will Michigan have to forfeit this season?

[Rev. Arthur L. Kirkland]

People show up for dogfights, cockfights, revival meetings, and faith healings, too . . . especially in SEC territory.

[Rev. Arthur L. Kirkland]

State College is a desolate backwater, the "center" of a region that might as well be in Alabama, Kentucky, Mississippi, South Carolina, West Virginia, or Idaho.

[Frank Drackman]

Obviously why Jerry Sandusky's crimes were tolerated for so long.

[Rev. Arthur L. Kirkland]

Not just Jerry Sandusky's. You may never have heard of Todd Hodne, but in some ways Hodne was the poster child of Penn State football.

If the economic, academic, prosecutorial, judicial, legislative, administrative, entertainment, reputational, and practical power in a multi-county community (a poorly educated, downscale, bigoted, rural community) is concentrated on a single man's front porch, and that man is a selfish and imperious phony, it is predictable that bad things are likely to happen.

Penn State and Joe Paterno facilitated and covered up a steady stream of criminal acts, academic fraud, economic wrongdoing, nepotism, NCAA violations, personal abuse, and other misconduct for decades. Penn State and Joe Paterno were disgusting frauds and despicable hypocrites. They got away with it for an extended period because they were the kings of a gape-jawed, ignorant, superstitious, character-deprived, rural, conservative hill built on falsehood and fraud.

Supporting Joe Paterno and Penn State resembles supporting the Catholic Church, for-profit colleges, the Republican Party, the American Conservative Union, or Baylor . . . although for-profit colleges and the Republican Party didn't sexually assault children or anyone else, so far as I am aware. But they are all disgraced, discredited, and disgusting organizations. Only deplorable people would support such organizations.

[Noscitur a sociis]

What kind of financing did you get on your waterbed?

[Martinned]

What a coincidence that Mario Zagallo died just a few days ago. Two of the three men who won the World Cup both as a player and as a coach. (Although Beckenbauer's win in 1974 is invalid, of course.)

[SRG2]

Not quite as invalid as Verstappen's first F1 championship, but yes. 🙂

[Nelson]

"Although Beckenbauer’s win in 1974 is invalid, of course"

I'll bite. Why is it invalid?

[Martinned]

Because they beat one of the greatest football teams to ever take the field by cheating.

[Nelson]

Why can't I find anything about cheating except a single statement by the FIFA president?

[M L]

Laurence Tribe, a supposedly smart person, falls for a very obviously fake video story.

https://twitter.com/tribelaw/status/1741012054260281491

[Life of Brian]

I think you're being rather unfair. It said "TRUE STORY" right on the video!

[Bwaaah]

Laurence Tribe on Twitter is like...Twitter. I can't tell if he's lost all concern for his reputation, or just most of it.

[SRG2]

Looking at today's SC order list, I came across this oddity:

MACTRUONG, DMT V. ABBOTT, GOV. OF TX, ET AL. Because the Court lacks a quorum, 28 U. S. C. §1, and since the qualified justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U. S. C. §2109, which provides that under these circumstances "the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court." The Chief Justice, Justice Thomas, Justice Alito, Justice Gorsuch, Justice Kavanaugh, and Justice Barrett took no part in the consideration or decision of this petition.

For your amusement, here is the original case.

https://casetext.com/case/mactruong-v-abbott

Plaintiff filed this lawsuit on May 9, 2022, against Texas Governor Greg Abbott, Texas Lieutenant Governor Dan Patrick, Speaker of the Texas House of Representatives Dade Phelan, former President Donald Trump, and Supreme Court Justices Clarence Thomas, Brett Kavanaugh, Neil Gorsuch, Amy Coney Barrett, and Samuel Alito (collectively, “Defendants”). In his Complaint, Plaintiff alleges that he is an inventor of “Tele-Sex or Tele-Mining on Jupiter and other planets of the Solar System,” and appears to assert a claim for copyright infringement and constitutional violations.

[Zarniwoop]

the original case is certainly good for a laugh. Thanks!

[Bored Lawyer]

“The District Court referred the Application to the undersigned Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(A), Federal Rule of Civil Procedure 72, and Rule 1(c) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. Dkt. 19.”

IOW, District Judge said, “Why should I deal with this nutcase? Let the Magistrate Judge do it.”

[David Nieporent]

I went through the same process: saw that order, saw the recusals, went to look it up, and saw that the guy was a complete nutjob. My only bit of confusion was that Planned Parenthood had signed onto a lawsuit which named SCOTUS justices as defendants, and that seemed absurd. Love them or hate them, they're not idiots.

Turns out that it was absurd; this kook just put Planned Parenthood's name in the caption.

[loki13]

A few random thoughts for today-

1. I wish people would try and view issues on their own merits, instead of every single issue being viewed as another partisan conflict. There are times when "the other side" has the better argument, and it's okay to agree with them. Really.

2. I think that if people could put aside their prior hatreds and animosities, most people would understand that a battle between two candidates, one of who is already over 80, and the other will be during this term, is not what this country needs. I know a lot of people that are over 70- and there isn't a single one that I would want to be the President. Ronald Reagan was several years younger than both of these guys when he was elected to his SECOND term.

3. The GOP is a failure because it has become a party of personality, not of ideas. The Democrats are a failure because they don't have any ideas, and most of the ideas they do have they lack the convictions to even try them out.

4. The world-wide surge in right-wing populism isn't the disease, it's a symptom of the growing dissatisfaction with the status quo. And the status quo is the growing divide that we can see, where it's increasingly hard to get to (and maintain) a middleclass lifestyle.

5. Finally, the unhealthy concentration by some (and the glorification by others) on what people can "get away with," is doing serious damage to the country. Social norms are the fallback for personal integrity; when you remove that aspect, then the society becomes worse.

[Mr. Bumble]

Well said and I'd agree with the possible exception of 2.
Age alone should not be the determining factor.

[OtisAH]

I can read all of that a few times a week, every week, in the NYT and WaPo editorial pages. You work real hard on your both sides bona fides, not gonna lie. Nailed it for sure. But it’s all a bit empty as far calories go.

[Magister]

I think the second part of #3 is unfair; they can't both have no ideas and lack the convictions to try their ideas. It's the lack of reliable majorities or Republican cooperation rather than lack of convictions that has blocked them (or a very conservative Supreme Court), but still there have been more bipartisan successes than I would have expected in January 2021.

[Randal]

Where do you stand on calling out stupidity and ignorance?

[Commenter_XY]

loki13, I agree with much of what you are saying here. I do have a question though. In your #5, aren't the lawyers the ones who tell us what we can get away with? 🙂

[Bwaaah]

I like/agree with a lot of this.

My knee-jerk inclination was to reject your ageist theory of bad presidential candidates. I backed that down in my head. Being that old is risky business, not just for the old person, but for the people who are around the old person. And if it’s an old chief executive, that’s a lot of risk wrapped around a key player. (In politics, rational risk management takes a back seat to the sways of public sentiment.)

I disagree with, “The Democrats are a failure because they don’t have any ideas.” That sounded short and deaf to me. They have lots of idea. Endless ideas. Their only requirement seems to be that an idea must be well-intentioned. That’s it. That’s a good idea.

And re:#5…the openness, ease and pleasure with which so many people treat “getting away with it” is scarily concerning to me. They’re not just talking. That’s a cheater’s take on the game of life. Permit too much cheating and honest people start feeling like they’re getting screwed. It corrodes the value of doing things the right way. I’m hearing it. I’m feeling it. (I'm seeing it.)

[Mr. Bumble]

How to win friends and influence people:

Anti-Israeli protesters cut off Manhattan as they block off Brooklyn Bridge, Manhattan Bridge, Williamsburg Bridge and Holland Tunnel by sitting across middle of road in human chains chanting 'free Gaza'
https://www.dailymail.co.uk/news/article-12939163/palestine-protest-israel-gaza-brooklyn-manhattan-bridge-holland-tunnel.html

[Nige]

Trump supporters: Did they do a insurrection?

[Commenter_XY]

Send their asses to Gaza to bury their Hamas friends, whose tickets were punched by the IDF.

[Nige]

Will you bury the children and the babies while they're doing that?

[Rev. Arthur L. Kirkland]

His crowing will turn to whining, begging, wailing, and groveling after America pulls back the skirts behind which Israel has been operating and hiding for decades. Like the loudmouthed jerk who turns around and finds his older brothers have left the playground . . . and left him to be handled by the people he has been tormenting under their protection.

Couldn't happen to a better bunch of belligerent, superstitious, right-wing bullies. I just hope we abandon the Saudis simultaneously.

[Bwaaah]

Notice how they all wear masks?

COVID!

(no?)

[ReaderY]

Trump has filed a motion to dismiss his Georgia state criminal case claiming Presidential immunity.

However, when Trump made the same arguments to Federal District Court in claiming his status as former President a right to have his case heard in and dismissed by federal court, the federal courts held that his alleged conduct was outside the scope of his office.

I think the federal court decision on these points of federal law in the exact same case would have to serve as the law of the case, and the Georgia courts would have to be bound by them. I don’t think Trump gets to have a second bite at the apple on federal issues in state court,where federal courts have ruled against him on the same issues in the same case.

[Zarniwoop]

IIRC Meadows tried and failed to have his case removed, but DJT didn't make a similar removal attempt.

After poking around a little in the docket, from 28Sep23:

On September 7, 2023, in an abundance of caution, President Trump notified the Court that he may seek removal of his prosecution to federal court, and that his notice of removal would need to be filed in federal court on or before September 29, 2023.

President Trump now notifies the Court that he will NOT be seeking to remove his case to federal court. This decision is based on his well-founded confidence that this Honorable Court intends to fully and completely protect his constitutional right to a fair trial and guarantee him due process of law throughout the prosecution of his case in the Superior Court of Fulton County, Georgia.

(emphasis in original)
https://www.fultonclerk.org/DocumentCenter/View/2274/PRESIDENT-TRUMPS-UPDATED-NOTICE-REGARDING-REMOVAL-OF-HIS-PROSECUTION-TO-FEDERAL-COURT

Since there's a lot of cases flying around, can you link to the Trump motion you're referring to, and maybe the Federal D.Ct. proceeding you're thinking of? I might have misunderstood which case(s) you're discussing.

[Zarniwoop]

Yoiks! There’s a 67 page Pres Immunity/Supremacy Clause MtD:

https://www.documentcloud.org/documents/24352149-ga-v-trump-mtd-immunities

[Zarniwoop]

(separate comments due to Reason wanting to moderate a post with 3 links)

AND a 34 page Due Process MtD: https://www.documentcloud.org/documents/24352151-ga-v-trump-mtd-dp

[Zarniwoop]

AND a 15 page Double Jeopardy MtD: https://www.documentcloud.org/documents/24352150-ga-v-trump-mtd-dj

[not guilty]

Thank you for the links.

[TwelveInchPianist]

Double yoiks! An mtd based on the claim that the DA is screwing the special prosecutor!

https://www.documentcloud.org/documents/24352568-roman-motion-to-dimiss-010824

[Zarniwoop]

Wowzers. I think that brief deserves more than just two yoiks.

[hobie]

" WILLIS AND WADE HAVE ENGAGED IN A PERSONAL RELATIONSHIP BOTH BEFORE AND AFTER WILLIS APPOINTED WADE AS THE SPECIAL PROSECUTOR IN THE INSTANT CASE. Upon information and belief, and based on discussions with individuals with knowledge, Willis and Wade were romantically involved..."

Uh...yeah...that's gonna fly. There appears to be a wholesale drop in IQ amongst US attorneys lately that they would think garbage like this dream speculation could pass as evidence

[Magister]

I'm curious as to how this would disadvantage any defendants if it's true. If there is corruption that affects their cases, they should certainly bring that up. But this would seem to suggest that Fulton County spent too much to get a possibly inferior prosecutor; a concern for the voters and taxpayers but not something that makes their defense more difficult.

[not guilty]

The Roman motion to dismiss raises some troubling issues, which should call for an evidentiary hearing before the trial court. I wonder what actual evidence defense counsel will offer regarding the nature of Ms. Willis's and Mr. Wade's personal relationship, if any.

At first blush and assuming arguendo the existence of such a relationship, the appointment of Mr. Wade smells bad. At this point I haven't thought out what remedy may be appropriate.

[hobie]

No evidence nor affidavits given in the motion. Will be interesting to see if it is true. Then watch the nothing-see-here-Trump-apologists crowd beclown themselves over it. I already have my popcorn

[hobie]

Of course, another question I have is that if the prosecutor's divorce records are under seal, how can the moving attorney know the contents?

[Magister]

I thought I read that the divorce case had not initially been sealed, and the defense attorney/opposition researchers had gotten copies of some of it (but did not include them in the motion because the case was sealed).

[John F. Carr]

Trump did not try to remove his case to federal court. Several other defendants did. There is no binding decision on whether the allegations against Trump are within the scope of any official duty defense.

[MoreCurious]

For those who haven’t tried it, I highly recommend the mute button. For a long time I allowed myself to be irritated by one of the regulars here. And for good reason: this person is a vulgar, stupid, misogynistic, bigoted, hate-filled racist. But since I’ve muted him, I no longer see the disgusting garbage he writes in his seemingly endless quest to dig his way to the bottom of the cesspool. And since this pathetic, foul-mouthed troll is the only person I’ve muted, I know whenever he posts, and I can get some satisfaction in knowing that there are almost never any responses to his childish ravings.

[Mr. Bumble]

Whatever floats your boat.

[MoreCurious]

Your brilliant, insightful comments are always eagerly awaited, Bumble. Thanks for not disappointing us.

[Mr. Bumble]

Are you making me mute worthy. "Us"? Who are you speaking for? Grow up.

[MoreCurious]

Do you really think I'm the only one here who wonders if you're ever going to publish a comment that makes you look smart, educated, clever, or astute? Please be sure to let us know when you think you've achieved one or more of those. Be assured, though, that no one is holding his or her breath while we wait.

[Magister]

Only one vulgar, stupid, misogynistic, bigoted, hate-filled racist irritated you?

[MoreCurious]

This one makes the others look like fumbling amateurs (sort of like the Eagles over the past month).

[Commenter_XY]

I especially enjoyed yesterday = Eagles game

[Bwaaah]

I have a built-in mute button in my head; no need for a web-based prosthesis. Mine works in verbal as well as written situations, real life as well as online. I call my mechanism "ignoring shit."

[MoreCurious]

Sadly, the older I get the more difficult I find it to ignore shit. But your comment will serve as a challenge to me to try harder. Thanks.

[Commenter_XY]

I feel the same = Sadly, the older I get the more difficult I find it to ignore shit

[Bwaaah]

OK. I admit it doesn't always work. It's sometimes a struggle.

OK. It's always a struggle.

[Frank Drackman]

I get it, I muted that bastard too

[hobie]

I don't mute anyone here because I have an abiding need to know the thoughts of right-wing racists, to see the gymnastics they employ to justify their positions. Of course, I don't give them oxygen by responding. It is a minor pleasure to see their pathetic posts sadly ignored save by their compatriots.

[Rev. Arthur L. Kirkland]

THE VOLOKH CONSPIRACY

This white, male, movement
conservative blog has operated for

THREE (3)

days without publishing
at least one racial slur;
it has published vile
racial slurs on at least

ONE (1)

occasion (so far) during 2024
(that’s at least one discussion
that includes a racial slur, not
necessarily just one racial slur;
many of this blog’s discussions
include multiple racial slurs,
as did this year's inaugural
racial slur publication at
the Volokh Conspiracy).

This assessment does not address
the broader, everyday stream of
gay-bashing, misogynistic, Islamophobic,
antisemitic, racist, Palestinian-hating,
transphobic, and immigrant-hating slurs
(and other bigoted content) published
at this faux libertarian blog, which
is presented from the receding,
disaffected right-wing fringe of
modern legal academia by
members of the Federalist Society
for Law and Public Policy Studies.

Amid this blog’s stale, ugly right-wing thinking, here is something worthwhile.

This is a good one, too.

Remember that America continues to progress and can continue to be a force for good if it so chooses; try to be part of modern America improvement rather than pining for illusory "good old days."

[Rev. Arthur L. Kirkland]

Someone mentioned enjoyment of Stones outtakes, rarities, and oddities.

Any requests?

Until then, here are a couple to consider while you consider:

First . . . a deft and unembellished exhibition of what 70-year-old fingers can accomplish. Keith's fretting fingers -- misshapen, jutting at odd angles -- can startle in person, although his grip is remarkably firm and he seems to remain handy at the fretboard.

Next, a blooper with strong recovery.

((A few) tickets still available for the spring-summer tour. See you in New Orleans, Vegas, New Jersey, Philadelphia, Cleveland, and Chicago!)

[BrotherMovesOn]

There is a tube floating around in YouTube of a song called 'The Devils Own my Time" purporting to be a Stones tune. Sound a lot like Mick, not so much Charlie. Some claim it's a Dutch cover band. Some say it's a Stones outtake from the 90s.
Don't know but it's a great tune!
Got any live or outtakes from Beggars Banquet?

[BrotherMovesOn]

Thanks!

[Rev. Arthur L. Kirkland]

That tune is generally regarded as an impersonation. I have run across it several times. I am not confident the performers mislabeled the song but someone has repeatedly done so. Here is some informed observation.

I have some outstanding bootlegs from the Beggars Banquet era -- some from direct (live soundboard, recording console) sources, thank to some fortunate circumstances -- but I am not sure how to upload them here.

I will try to have some Beggars Banquet fare for you on Thursday.

Or . . . here's a head start:Did Everybody Pay Their Dues? It might sound familiar.

[BrotherMovesOn]

Very cool.

[ah....Clem]

Of course, it's very difficult to predict what the Supreme court is going to do with the Colorado/Maine case, but I'm fairly certain there are not five votes to disqualify, the question is what basis will they ultimately use?

Rather than trying to predict, I'll offer what I think is the most reasonable approach. I'm not an attorney let alone a judge, and will welcome informed reasonable criticism.

The 14A sec 3 bars certain individuals from "holding office". It does not bar anyone from being elected. While it is reasonable to bar someone from being on the ballot if they are not a natural born citizen or if they will not be 35 by inauguration day, if someone is currently disqualified from *holding* the office but will be qualified by the time inauguration occurs they may be on the ballot.

So, if someone is 34 but will be 35 before inauguration they are not barred from the ballot. Now, let's stipulate that Trump is currently barred from holding office by 14A sec 3; there's mechanism to remove that disqualification, namely a 2/3rds vote in both houses of congress. So, he *might* be eligible by Jan 20th, therefore should not be barred from the ballot.

The above ignores the practical reality that there is no way that he'll get 2/3rds in the house and senate but should that matter?

So the court could well rule that the question of qualification is not ripe and not rule on that until he's elected or dismiss the case as moot if he's not. Letting him stay on the ballot in the meantime.

Far fetched? Probably given the results-oriented nature of some of the justices. Curious what others think about this scenario.

[Magister]

I don't know what the results-oriented decision of any justice would be. A pro-Republican decision might be to bar him from the ballot because he's dragging the party down or to allow him on the ballot because otherwise they'd lose a huge swath of voters. A pro-Democratic decision might be to bar him because he's an extreme danger who might win or to allow him on the ballot because he's most likely to lose to Biden. Maybe a decision like Bush v. Gore, complete with admonition not to cite it as precedent, so weird grammatical arguments may come out on top (easier to take a weak preposition than a strong position).

[Bwaaah]

You nail the essential questions and basis for my complete uncertainty regarding any "results-oriented" approach.

[Zarniwoop]

I don’t know what the results-oriented decision of any justice would be. A pro-Republican decision might be to bar him from the ballot because he’s dragging the party down....

Agreed. Some of Trump's own appointees could conceivably think it's time to move him off the chess board for the good of the Republican party.

Unlikely, IMHO, but not impossible. If that were to happen, I suspect it would be Roberts and a minimum of one of Trump's appointees.

[Zarniwoop]

So the court could well rule that the question of qualification is not ripe and not rule on that until he’s elected or dismiss the case as moot if he’s not. Letting him stay on the ballot in the meantime.

I concur - a dismissal based on prudential/ripeness grounds seems like one reasonable guess.

Though the flip side of that is that it would be politically really, really hard for the S.Ct. to allow him on the ballot, then declare him ineligible post-November with zero warning to the public. If there are 5+ justices that do feel he's potentially ineligible due to 14.3 but also that the case isn't ripe, I'd hope for at least a concurrence pointing that out, so it's not perceived as a complete December surprise.

[Krenn]

I discussed that farther up thread. it becomes a nightmare in terms of who is finally in charge of actually telling Trump that he can't take the oath of office.

[Mr. Bumble]

...and in border news:

Mexico's $20 BILLION demand from Biden to help fix the border mess: President AMLO asks for huge Latin American investment in return for helping migrants head north

President Lopez Obrador called for 10 million visas for migrants
He also wants the spending plan to deal with migration causes
Biden dispatched top officials to Mexico City in December

https://www.dailymail.co.uk/news/article-12939877/Mexicos-20-BILLION-demand-Biden-help-fix-border-mess-President-AMLO-asks-huge-Latin-American-investment-return-helping-migrants-head-north.html

[Zarniwoop]

Wait, Mexico isn't paying for the wall?

[Nelson]

That’s not what I was told. I was assured that they actually were paying for it in a variety of ways, but we needed to use our own money because ... reasons.

[John F. Carr]

The U.S. Supreme Court says plaintiffs can not sue in federal court over technical violations of the Fair Credit Reporting Act. The violation must harm the plaintiff. The existence of statutory damages up to $1,000 for willful violations is not enough to create standing. The intermediate appeals court of Massachusetts ruled today that lawsuits seeking only statutory damages under the FCRA may be brought in state court.

Kenn v. Eascare, Mass. App. Ct. 22-P-1017 (January 8 2024)

[bernard11]

If you had any doubt that Trumpism is a cult, this should convince you.

[Rev. Arthur L. Kirkland]

That's the guy most Volokh Conspirators will vote for . . . and the reason you will see fewer and fewer movement conservatives on strong, mainstream faculties as our nation continues to improve.

[Life of Brian]

Hadn't seen that yet. Man's an egomaniac, no doubt about it.

I've said for a long time that I'd rather someone else win the primary, and this certainly hasn't done anything to flip that calculus. That said, I have to say it's cracking me up seeing how triggered the diehard TDS crowd is getting over this. Not that they ever really need an excuse, but the froth out there over this is reaching epic proportions. Almost makes me wonder if it's half serious/half major-league troll.

[bernard11]

I think that's worse than egomania. I've known some big-time egomaniacs, but none of them claimed they were divinely chosen leaders.

[Life of Brian]

Meh -- politicians have played to evangelicals ever since there were politicians and evangelicals. I see this as a difference in magnitude, not in kind.

[bernard11]

Is it "playing to evangelicals?"

I think it's playing to the cultists. I don't understand why a serious Christian wouldn't be deeply offended by this.

[Life of Brian]

Judging from the comments I've seen, at least some are. I didn't comment on how successful I thought it would be -- just that politicians routinely do it.

How long ago it seems, but a fairly recent example that caused quite a hubbub at the time was Obama. Here, for example, Politico reports on a South Carolina rally in which Obama was presented as "be[ing] the truth" (specifically distinguished from "tell[ing] the truth") and "the one [who will carry part of our cross]." There's plenty more out there, including the whole calming the seas and healing the planet bit.

Now, was that sort of stuff also offensive to serious Christians and played more to the cult of Obama? I'd imagine so. But that's consistent with what I said before, that I see this as more of a difference in magnitude than in kind.

[SimonP]

That said, I have to say it’s cracking me up seeing how triggered the diehard TDS crowd is getting over this.

Yes, that gives us a pretty good idea of the kind of sociopath you are.

I don't suppose it's all part of a grand scheme that Trump has carefully worked out in his head. But the media coverage is certainly resonating with his main campaign message, which is "strength." Every time they publish another piece about how he's going to be a "dictator," they're helping him promote that image - aren't all dictators strong? - and the Biden campaign is not really grasping how to respond to that. They should ask Buttigieg how he'd do it.

That said, I'd find it a little easier to rest easy and ignore the flak if Trump's supporters weren't so busy chortling to themselves about how awful they expect Trump to be for the people they hate.

[Life of Brian]

But the media coverage is certainly resonating with his main campaign message, which is “strength.” Every time they publish another piece about how he’s going to be a “dictator,” they’re helping him promote that image

I mean, if they're really, truly concerned about that outcome and actually think it could realistically happen, they could, you know... hang with me here... stop feeding it like that. Wonder why they stay at it?

Maybe they're the sociopaths you're looking for.

[Brett Bellmore]

"Worse is better", remember?

The next step after never letting a crisis go to waste, is artificially engineering crisis to not waste.

If they can get some small fraction of the opposition to behave badly, they can invoke the legal system, which provides the opportunity to invoke it against the rest of the opposition. And they're much more confident about prevailing in the legal system, than in the political system.

So, they got some yahoos to break into the Capitol, and leveraged it to declare Trump an insurrectionist.

Why not continue a tactic that looks like it's working?

[Sarcastr0]

Jan 06 as a government op.

We all knew Brett would get there someday.

[Nige]

'So, they got some yahoos to break into the Capitol, and leveraged it to declare Trump an insurrectionist.'

And the fake electors and Trump screaming the election was a fraud 24/7? Did they 'get' him to do that, too? Because without the latter, Jan 6th never happened. So I'm curious how it was 'engineered.'

[Life of Brian]

Yeah, I get it. I'm just bemused by Simon's new pile-on theory that this tactic is actually creating a positive feedback loop that is somehow making Trump even MORE dictatorialish. Seems like the only positive feedback loop at play is the paranoia.

[bernard11]

Time for some historical analysis.

Could Lincoln have avoided the Civil War by negotiation?

If so,

1. What would a deal have looked like?
2. Did he refuse to do so because he wouldn't become as famous as he did by doing so?

[Commenter_XY]

Answer: No. The die was cast after SC seceded in December 1860, followed by MS, FL, AL, LA, and TX before he even took the oath of office. Once Ruffin got into the act (a fire-breather), it was over; no hope of negotiation.

[Dan Schiavetta]

Negotiations had already been done, for decades, in the form of compromises. Of course Trump, ignorant as he is, doesn’t know that. He thinks Frederick Douglass is a living person.

And the “compromises” were actually giveaways by the North. Up till the election of 1860 the South was still in the driver’s seat, even though its voters made up only one-fourth the total population.

[Don Nico]

"Negotiations had already been done, for decades"
Exactly.
Trump understand squat , but he feels compelled to run his mouth

[Mr. Bumble]

"2. Did he refuse to do so because he wouldn’t become as famous as he did by doing so?"
Do you honestly think that was a consideration?

[Dan Schiavetta]

Bernard’s question is framed in the fame-seeking terms of Trump’s insecure, adolescent mind. It’s not meant to be a serious question.

[bernard11]

That was Trump's claim, not mine.

[Sam Bankman-Fried]

War is politics by other means. The war could only have been avoided by Lincoln annexing Cuba and breaking Texas in to two states in order to create more slave state senators. The South could have avoided it by just allowing the Senate to grow big enough to abolish it and accepted the results. Just know the South didn’t want to be a separate country because all of the slaves would have been able to escape much more easily.

[Krenn]

Depends on how you define "avoiding the Civil War".

I've played seminar games before, where we play D.C. PowerBrokers who start problem-solving the morning after election day, when Lincoln wins, and try to prevent, roll back, or contain Secession before Lincoln gets sworn in or Fort Sumter happens.

But because we're only D.C. power brokers, we can't ORDER the state governments in the south not to secede, or not to misbehave... we can only try to send them messages, persuading them that we have shown good progress on a plausible deal, and that they don't NEED to secede or misbehave.

avoiding outright war was... barely doable, in-game, but only if we very carefully accepted secession, and then tried to negotiate terms for how secession could be discussed in a fair manner, in terms of things like "what happens to federal armories", and "where do we host the meetings to decide who gets the mint", and things like that.

Actually stopping both secession and the war was completely impossible. could not be done. Only time we came close to preventing secession was when we agreed to keep lying to each other and to our own sides about our intentions, and to publicly pretend to believe each other when everyone knew we both had to be lying. in that scenario, we might have kicked the can down the road for 10 more years before the civil war happened anyway. And even then, we still lost South Carolina, and still needed to figure out later what it would take to re-integrate them without starting a civil war after all.

In the real world, the South was very obviously attempting to dictate terms every chance they got: even before Fort Sumter was being fired upon, they were seizing every piece of federal property they could get, filing criminal charges against people fulfilling pre-existing supply contracts to federal bases, demanding that federal troops surrender, and opening "negotiations" with congress by insisting that Congress accept everything the south had already done, then debase themselves by pleading for a few small keepsakes to be returned afterwards. like base flags and private letters and stuff, and not much else.

So, real world, the only way we could have avoided the Civil War would have been by giving the Seceding South absolutely everything they wanted, up front, without negotiation or appeal. and that still would have ben Secession.

[dxelkabam]

I don't even like the NRA, but James is acting in bad faith. She doesn't care about charities being bad stewards of their money. She cares about going after a non-liberal organization. She would never use the same zeal in going after fraud at BLM, NAACP, UNCF, SPLC, or other organizations run by and for NAPAs.

[Zarniwoop]

And you know this how?

Also .. WTactualF is "NAPA" in this context? I just checked Urban Dictionary, and even that didn't help. Is it some right-wing racist bat-signal?

[dxelkabam]

You didn't look very hard.

https://www.urbandictionary.com/define.php?term=North%20American%20Pavement%20Ape

[Zarniwoop]

Racist, check; too cowardly to say it in OP, instead using fringe acronyms, check.

Does wonders for the credibility of rest of your fact-free "analytical insights", that's for sure.

I mean, if you're trying be evidence in support of Rev Kirkland's annoyingly repetitive screeds ... that's on you.

[Rev. Arthur L. Kirkland]

Which is more annoying . . . this blog's everyday bigotry, or my (less common) mentions of that bigotry?

People who complain about my repeated references to this blog's bigots and bigotry -- but never object to the bigotry -- are invited to kiss my ass as they await the culture war's predictable-for-conservatives consequences.

[Zarniwoop]

Which is more annoying . . .

"You're both annoying" is definitely on the table here.

Since I was explicitly calling out the racism, I feel also fine about calling out your boring cut'n'paste wankery. At least get a little more creative, man. The dead horse you're beating isn't even a grease stain on the pavement anymore.

[dxelkabam]

You call it racism. I'll call it patriotism.

[Estragon]

Voltage!

[Zarniwoop]

You call it racism. I’ll call it patriotism.

Ladies and gentlemen of the jury, I rest my case.

[David Nieporent]

Also .. WTactualF is “NAPA” in this context? I just checked Urban Dictionary, and even that didn’t help. Is it some right-wing racist bat-signal?

I mean, that was overdetermined.

[Zarniwoop]

mumble mumble give someone enough rope mumble

[David Nieporent]

but James is acting in bad faith. She doesn’t care about charities being bad stewards of their money.

And Chris Rufo didn't care about plagiarism, either, but that didn't change what Claudine Gay did.

[dxelkabam]

Correct. But Rufo is a private individual. James is using the power of the state. It's not even close to analogous.

I would oppose a Republican politician threatening to interfere with Harvard's federal funding on the grounds that they have a plagiarist as president, too.

[Estragon]

I wouldn’t want to be invested in Ackman’s fund right now, let’s put it that way. He’s really giving off the surrounded-by-yes-men/sniffing-his-own-farts vibes with this foray into the political arena.

[Rev. Arthur L. Kirkland]

Harvard should get ahead of this one by informing Ackman he's no longer welcome on campus.

[dxelkabam]

You're a fag who lets pasty limp wristed "men" breed you.

[Estragon]

“You’re a fag”

Oy vey

[Sam Bankman-Fried]

Did you see Trump is a nipple man?? Nipples can only be a deal breaker for me…I don’t like big nipples.

[Estragon]

No, Sam, I didn’t see that. But please, tell us more

[Sam Bankman-Fried]

If nips get so big they are taking up most of the boob then they aren’t aesthetically pleasing. By nipple I mean areola.

[Estragon]

Don’t yuck other peoples yum man. Different nips for different folks, you feel me?

[Dan Schiavetta]

Another muted!

[Commenter_XY]

Don't get emotional about investing. Or the people in it. Emotion is your enemy.

[Estragon]

And you’re playing into it. A thinly disguised attack on higher Ed and you’re on board going along with Rufo because of gotcha questions asked by Elise stefanik, of all people. It’s surprising coming from one of the more right-minded individuals around here but we all have our hobby horses/weak spots.

[Estragon]

Three more hostages!

https://abcnews.go.com/amp/US/jan-6-fugitives-arrested-florida-ranch/story?id=106156662

Anyone missing from the usual cast of huckleberries? Where’s Jimmy?

[Rev. Arthur L. Kirkland]

Those three hayseeds should draw exceptionally long prison terms. Let them grow old in cells, ranting at the walls and clutching at bars.

[Frank Drackman]

Like you're doing?

[Estragon]

Anyone else seeking out Airbus flights for the time being?

They need to figure out what the hell is going on over there.

[Frank Drackman]

Airbus is probably behind the “problem” with the 737-Max. Airbuses were designed to be flown by poorly trained 3rd world pilots, which is why they have all sorts of limitations on the flight controls, unlike Boeings which were designed to be flown by military pilots. That being said, I do like the A330, and since I only fly Delta (and only First Class) most of the pilots are military trained anyway, including my oldest daughter (Delta 737 First Officer) I'll take the "Bus"

Frank

[Krenn]

so, the argument here is that Airbus caused the problem by.... forcing Boeing to chase the lowest common denominator market?

[Ben_]

Iowa trans school shooter was reported to the FBI last November:

"The user was also part of a chatroom dedicated to discussing school shootings called "School Massacres Discussion,"' a Discord user who saw the user in the chat told NBC.

The Discord user said they had flagged the chatroom to the FBI in November, after which an FBI agent reached out over email and asked for more information."

https://www.dailymail.co.uk/news/article-12937119/Iowa-gunman-Dylan-Butler-social-media-posts-discord-Perry-school.html

He murdered an 11 year old and injured 4 others when he opened fire at Perry High School.

[Estragon]

“Iowa trans school shooter”

Oy vey

[Martinned]

It sounds like an excellent reason to adopt some effective gun control laws to me.

[Frank Drackman]

why not just outlaw First Degree Murder? or make it illegal to bring a gun on School property?

[Nige]

If only someone had taken the guns.

[Ben_]

Normal Democrat behavior:

Fulton County DA Fani Willis allegedly hired her boyfriend as assistant prosecutor on the Trump case. He then allegedly used the fees to take her on lavish vacations.

https://www.ajc.com/politics/breaking-filing-alleges-improper-relationship-between-fulton-da-top-trump-prosecutor/A2N2OWCM7FFWJBQH2ORAK2BKMQ/

[Ben_]

Before indicting Trump, her lead prosecutor met with the White House counsel:

https://x.com/kanekoathegreat/status/1744541573910843646

Presumably to coordinate the politics and timing of the prosecution to benefit Biden politically.

Normal Democrat behavior.

[David Nieporent]

Presumably to coordinate the politics and timing of the prosecution to benefit Biden politically.

It would be irresponsible not to speculate!

[Sarcastr0]

Assuming the allegations are true, you sure have an odd definition of typical.

[Nige]

You voted for Donald 'Nepotism Is My Middle Name' Trump. There's a reason this will be bad for her and her case if it's true and a reason you didn't give a fuck when Trump did it.

[John F. Carr]

Georgia recognizes the fair reporting privilege for court proceedings, so the newspaper is not liable for defamation if the accusation turns out to be wrong.

[Krayt]

The Michigan Independent Citizens Redistricting Commission, one of the states that took redrawing districts out of the hands of legislators, was just ordered to re-draw its unconstitutional maps, of state senator and congressional districts.

Said one commission member, "Ya got us. We paid about as much attention as we do to choosing which of 'em to vote for!"

[Martinned]

Interesting. It looks like at least part of the blame should go to America's dumb rules for how they're supposed to take into account race: https://www.bridgemi.com/michigan-government/can-michigan-redistricting-panel-play-nice-draw-legal-maps-it-may-get-messy

[Bwaaah]

The very same people who scream about gerrymandering pass laws that require gerrymandering. Remember: we're trying to make all decisions incorporate race as a basis for outcomes. This is to get rid of "systemic racism" (which wasn't a system) by implementing "equity" (a race-based system).

“The only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination." (Ibram X. Kendi)

[Brett Bellmore]

"The very same people who scream about gerrymandering pass laws that require gerrymandering."

Except that nobody passed a law requiring gerrymandering. Instead, the Voting Rights act was interpreted as requiring it, AFTER it had been passed.

[Bwaaah]

So I now see. That's a pattern of misunderstanding for me: thinking the laws were changed, when all that changed was the interpretation of the laws.

[Nige]

The people who benefit from gerrymandering get mad because the people who used to be victimised by gerrymandering get some redress.

[Mr. Bumble]

Sure. Gerrymandering is bad, except when it isn't.

[Nige]

No, gerrymandering is great, uintil it mildly benefits the people it was supposed to disempower.

[JasonT20]

It does seem dumb that districts have to be drawn to create “majority minority” districts. But the reason that has been required is simply due to the history of racism and the fact that too many white voters just weren’t going to vote for someone with darker skin.

[Mr. Bumble]

Sure. That's why Obama won twice.
The answer to racism can never be racism.

[Nige]

Trump was the answer to Obama winning twice, so the answer always seems to be 'racism.'

[Mr. Bumble]

You're a fucking idiot.

[Nige]

Am I. How's the Great Replacement going.

[Randal]

The answer to racism can never be racism.

You have no answer to racism other than just pretending it doesn't exist.

[Randal]

Now that I think about it, this is the MAGA solution to everything.

Racism: Doesn't exist!
Trans people: Don't exist!
Asylum seekers: Build a wall so we can pretend they don't exist!
Covid: Hoax!
Trump's crimes: None!
Bad news: Fake!
Ostriches: Role models.

[Brett Bellmore]

You've got a really weird notion of what it would mean to say something didn't exist.

Anorexics aren't fat, that doesn't mean they don't exist.

Transsexuals aren't sane, that doesn't mean they don't exist.

Illegal immigrants aren't here legally, that doesn't mean they don't exist.

Are you getting my drift?

[Josh R]

"Trans people don't exist" is another way of saying gender identity is not a trait. I'm pretty sure you don't think gender identity is a trait.

"Asylum seekers don't exist" is another way of saying their asylum claims are without merit and thus they are here illegally. I'm pretty sure you think they are here illegally.

[Nige]

‘Transsexuals aren’t sane, that doesn’t mean they don’t exist’

They only exist within the narrow confines of your preconveived, bigoted and ignorant conception of them, as do asylum seekers, and I've no idea what anorexics have done to deserve being brought into your dumb arguments all the time.

[Mr. Bumble]

What is your answer to racism?

[Nige]

Yes what is your answer to a problem that has plagued humanity for all of recorded history.

[Randal]

Well, I'm starting by acknowledging racism as a problem, which implies recognizing that there are different races. Once you understand that different races exist, you can start with diversity and inclusion as a first step.

[NvEric]

Somin and his ilk have lost any value as their reasoning is bankrupt. No matter of countering their views is possible to point out their errors of facts as their opinions hold nothing in reality.

Professorship is not a right to foist unsound legal opinions for others to see. Every word written by Somin is false in fact - unsound in reasoning. It comes from a mind not educated in rational thought, nor prefaced in truth.

His kind are a threat to our Republic and hence to the World. Nowhere is suitable for those who form things from which oblivion is the goal. Countering their absurdity is pointless past this point

[OtisAH]

You being dumb does not mean Somin’s legal reasoning cannot be challenged. You’re just a piss poor challenger.

[Bwaaah]

I must have missed his challenge. I think he got lost in the ad hominem phase and forgot to move to the argument phase. Maybe he heard himself when he re-read his last sentence, but by then, it was too late to delete the post? (Or maybe he just doesn't hear himself?)

[David Nieporent]

Professorship is not a right to foist unsound legal opinions for others to see.

I mean, the 1A is a right to do that, so it really doesn't need any other.

[Martinned]

For those who enjoyed the recent guest post about Israeli constitutional law, the Verfassungsblog just published a post by a different Israeli law professor: https://verfassungsblog.de/did-the-israeli-supreme-court-kill-the-constitutional-coup/

[jdgalt1]

The Trump case in Georgia meets another twist -- a divorce case that a judge tried to hide, ordering it sealed sua sponte, but too late.

https://www.coffeeandcovid.com/p/conflicts-of-interest-tuesday-january

[Brett Bellmore]

Well, well, well. That's certainly interesting.

[F.D. Wolf]

Who does D.A. Fani Willis appoint as special prosecutor to handle the largest RICO case in Georgia history? Naturally, Roger Wade, a man who has never handled a RICO case in his life. I’m sure the fact that they are lovers is purely coincidental.

Wade has already racked up about a million dollars in legal fees for the taxpayers of Fulton County. Perusing his invoices, besides the several hours billed for consulting with the White House Counsel (as if anyone doubted the Biden administration were involved), on 11/5/2021, he claims he did 24 hours of work “prepar[ing] cases for pre-trial” at $250/hour, or $6000.

It would be ironic if the only ones to go to prison in this sham case were Willis and Wade for fraud.

[Mr. Bumble]

"It would be ironic if the only ones to go to prison in this sham case were Willis and Wade for fraud."
You mean justice might be served? Ironic indeed.

[F.D. Wolf]

That would be Nathan Wade, not Roger Wade.

I was listening to my "Country Mix" on Spotify and was probably thinking of singer Roger Alan Wade, probably best known for his song "If You're Gonna Be Dumb, You Gotta Be Tough."

[not guilty]

"It would be ironic if the only ones to go to prison in this sham case were Willis and Wade for fraud."

The appointment may be problematic. It smells bad for sure. But where do you get potentially criminal fraud?

[Mr. Bumble]

Look into it. I'm sure you'll figure it out.

[F.D. Wolf]

Billing someone for work not actually done, particularly the government, could certainly constitute criminal fraud. Of course, proving it is another matter, but when an attorney claims to have worked 24 hours in a 24-hour period, it does seem to be a red flag.

I can't say I'm familiar with Georgia law on the nature of the appointment, but there may also be, of course, potential disciplinary sanctions for unethical behavior.

[John F. Carr]

I'm past hoping 2024 will work out fine. I want entertainment. That would be entertainment.

I would also accept Trump being busted out of prison by former members of a crack commando unit who were sent to prison by a military court for a crime they didn't commit, as long as they take him far away.

[Nige]

Like Mussolini being busted out of Gran Sasso by SS paratroopers.