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How the Supreme Court’s DACA Decision Harms the Constitution, the Presidency, Congress, and the Country

According to Chief Justice Roberts, the Constitution makes it easy for presidents to violate the law, but reversing such violations difficult -- especially for their successors.

By JOHN YOO • National Review

DACA recipients and their supporters celebrate outside the U.S. Supreme Court in Washington, D.C. June 18, 2020.  (Jonathan Ernst/Reuters)

Suppose President Donald Trump decided to create a nationwide right to carry guns openly. He could declare that he would not enforce federal firearms laws, and that a new “Trump permit” would free any holder of state and local gun-control restrictions.

Even if Trump knew that his scheme lacked legal authority, he could get away with it for the length of his presidency. And, moreover, even if courts declared the permit illegal, his successor would have to keep enforcing the program for another year or two.

That incredible outcome is essentially what happened with the Supreme Court decision last week in Department of Homeland Security v. Regents of the University of California (the latter being my employer, I might add). Regents blocked President Trump’s repeal of the 2012 Deferred Action for Childhood Arrivals (DACA) program, which halted the deportation of aliens brought to the U.S. illegally as children, and a parallel 2014 program that suspended the removal of their parents (DAPA). Until the Trump administration goes through the laborious result of enacting a new regulation to undo DACA and DAPA, approximately 6 million aliens can remain in the U.S. in defiance of federal immigration statutes.

While supporters of broader, more humane immigration policies (among whom I count myself) may have welcomed the result, they may well regret the Court’s disruption of executive power. President Barack Obama could issue his extralegal visa programs for children and their parents aliens by simple executive fiat, according to Chief Justice John Roberts and four liberal Justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan), but President Trump had to pretend the order was legal and use the slow Administrative Procedure Act to reverse them. “Even if it is illegal for DHS to extend work authorization and other benefits to DACA recipients,” Roberts found, DACA “could not be rescinded in full without any consideration whatsoever of a” non-deportation policy other than on the ground of its illegality.

According to Chief Justice Roberts, the Constitution makes it easy for presidents to violate the law, but reversing such violations difficult — especially for their successors.

Such a rule upends the text, structure, and history of the Constitution, which generally prevents the occupants of a branch of government (who are temporary, after all) from binding their successors. The Constitution, for example, contains no system for undoing a statute. When Congress wants to repeal a law, it must pass a new law through the same process of bicameralism (House and Senate approval) and presentment (presidential signature). The Supreme Court effectively repeals past opinions simply by overruling the earlier case, though the Constitution does not expressly provide for such reversals. Brown v. Board of Education famously overruled Plessy v. Ferguson’s rule of separate-but-equal. When a president wants to repeal an executive order, all he need do is issue a new executive order. When agencies want to reverse a regulation, they must resort to the same sluggish method of notice-and-comment rulemaking.

If anything, constitutional law grants presidents the power to reverse the acts of their predecessors even faster. Although Article II of the Constitution requires cabinet officers to undergo both presidential nomination and Senate advice and consent, practices from the earliest years of the Republic as well as Supreme Court precedents recognize the executive right to fire them unilaterally. A president similarly can terminate treaties, as Trump recently did with the Intermediate Nuclear Forces agreement with Russia, even though treaties must also receive Senate approval.

Recognizing a plenary power to reverse previous presidential acts, contrary to the Supreme Court’s DACA rule, comports best with the purposes behind the creation of the executive branch. The Framers created an independent executive branch that could act unilaterally and with dispatch because the president’s swift action was desirable in the execution of his constitutional and statutory responsibilities. They wanted each president to be fully accountable to the electorate for his actions without any diffusion of responsibility. The same reasons that support unitary executive action in the first instance support its potential unilateral reversal. A president may need to reverse his predecessor’s decisions quickly to protect national security or take advantage of a great opportunity.

The Framers’ careful protection against arbitrary government would be turned on its head if one president could insulate his unilateral policies against reversal by a subsequent president — for then the constitutional difficulty of enacting a statutory override would further entrench a tyrannical executive policy against electoral or statutory change.

It is important to understand that this principle applies even more strongly in the case of illegal presidential action. The Constitution vests in the president the responsibility to “take Care that the Laws be faithfully Executed.” The highest form of the law of the land is the Constitution. Under this duty, the president cannot enforce an executive order that violates the Constitution — here, the vesting of the power over immigration in Congress. Upon taking office, for example, President Thomas Jefferson immediately ended all prosecutions under the 1798 Sedition Act, which had made criticism of the government a crime, and pardoned those convicted under it.

This allocation of the power to execute the Constitution to the president reveals the perversity of Chief Justice Roberts’s opinion in Regents. It forces President Trump to enforce an executive program that he believes violates the Constitution and federal immigration law, and hence it forces President Trump to violate the Constitution. This is doubly perverse because Trump supports a legislative solution that would allow DACA and DAPA beneficiaries to remain in the country. Nevertheless, Trump reversed DACA and DAPA because President Obama had no constitutional authority to impose the two policies.

The Obama administration claimed that it could still establish DACA and DAPA as a matter of prosecutorial discretion. The constitutional obligation that presidents enforce the law also includes their right, due to limited resources and time, to set enforcement priorities. Prosecutors cannot bring cases for every violation of every federal law at all times. But Obama’s claim flew in the face of the Constitution by claiming that he could bring the enforcement of a federal law — here the removal provision of the immigration laws — completely down to zero.31

If that were true, President Trump could simply restore the preexisting enforcement levels as a matter of his own exercise of prosecutorial discretion. Each new president’s right to reverse the exercises of executive power by his predecessors means that no level of enforcement can bind any future administrations. If Obama were indeed free to set immigration removal levels to 50 percent of past cases, or even zero, Trump had the constitutional right to restore removals to those that prevailed under the Bush administration.

Trump’s rationale was correct: President Obama had no constitutional authority to refuse to enforce the immigration laws against whole classes of aliens, amounting to 50 percent of the possible removal cases. As the Court in Regents concedes, he had intruded on Congress’s constitutional prerogative to set immigration levels and to establish visa categories. As the lower courts had found, President Obama failed to live up to his constitutional responsibility to take care that the laws are faithfully executed. In such a situation, the Constitution compelled Trump to restore immigration enforcement to pre-DACA and pre-DAPA levels. By ignoring these aspects of the Constitution and presidential power, the Regents Court may have inflicted a harm on the nation that goes far beyond immigration law.


America’s Clueless Idiots

By Dr. Miklos K. Radvanyi • Frontiers of Freedom

Since the deadly biblical struggle between the two brothers Abel and Cain, humanity has grappled with the fundamentally existential paradoxes between good and evil, free will and subjugation, dominance and obedience, as well as fear and coercion.  These bifurcations of societies and communities into freedom by personal responsibility and disenchanted irresponsibility by surrender to seductive illusions have always been lurking under the notion of obligatory assimilation throughout the 244 years of American history.  The Declaration of Independence with its lofty ideals of ubiquitous equality and of inalienable rights to life, liberty and the pursuit of happiness, has always hidden the potential of disappointments in imperfect governments.  This interaction between the expectant masses and the thus pressurized governments has created a permanently unpredictable interplay between the majority that has needed guidance and the minority that has been elected to command.  The reactions to such an unstable situation have been either compliance or revolt.  Both have depended on circumstances that mostly have been foreseeable but occasionally subject to barely explainable circumstances.

The death of George Floyd on May 25, 2020, in Minneapolis, Minnesota, during an attempted arrest, has given rise to both open-ended peaceful protests and unbridled lawlessness.  Coupled with the relatively draconian anti-pandemic measures instituted by the federal and state governments, these two events have been the fundamental causes of the present infantile idiocy gripping the nation.  

The initial reaction to the unwarranted violence has been fear.  Cain was afraid of Abel, therefore, he killed him.  He was punished by having been uprooted and condemned to impermanence.  Similarly, those who destroy statues and monuments are devoid of solid roots in American society.  Having been grown up without serious parental guidance and having been confused by their scant education, they are miserable in their primitive loneliness.  Lacking any sense of personal responsibility, they demand absolute freedom for themselves and total subordination by the majority.  The result is complete, absolute, unconditional insecurity, as well as chaos, anarchy, and terror.  

Clearly, such a situation cannot be tolerated at all.  The overwhelming majority must transition from merely defending itself to going on the offensive against the unfounded charges of racism, white supremacy, intentional oppression of minorities, and the senseless denigration of a successful national history.  There is no institutionalized and systematic racism in the United States of America.  The charge of white supremacy is a myth.  Minorities are not oppressed.  On balance, the 244 years of American history is unequivocally positive.  

The only true meaning of democracy is that single issue minorities cannot seize power from the majority by force.  Any nation would be in mortal danger if minorities with destructive ideas would want to impose on the majority unworkable ideas that would run counter to the constitution, the laws, the traditions, and the morality of the nation. Attempting to replace the Judea-Christian-based spiritual realm with pseudo-Marxist and outrightly fascist social justice and inhuman rights rhetoric, would only lead to the demise of Western civilization.  Unless these minority movements can prove that their ideas and policies could win elections, they must be dealt with harshly within the confines of the rule of law. 

The American Republic can only survive if the majority refuses to excuse evil.  Black Lives Matter, Antifa, and like-minded minority movements are evil.  As long as they embrace violence, they must not be permitted to operate outside the law.  The media that promotes these evil movements must not be allowed to hide behind the First Amendment.  Such destructive opposition cannot be glorified by the Democrat Party without political consequences at the ballot boxes. 

The United States of America has its faults.  Yet, the constitutional and political powers upon which it has existed for almost two-and-a-half centuries rest on firm foundations.  For this reason, the United States of America has always possessed the strength necessary to progress without borrowing its inspiration from external sources, material or moral.  Its greatness has come from its individual as well as its collective ethos. 

The ultimate guarantee of this greatness resides in the character of the President, the Vice President, members of the cabinet, members of the House of Representatives, members of the Senate, and the office holders of the Judiciary.  What the Democrat Party and the various extremist movements represent is antithetical to the Judeo-Christian governance of America.  Marxism has always been against democracy, religion, the family, and the nation state.  Fascism is the despotic version of Marxism.  Thus, Marxism and Fascism can be defined as political regimes based on the rule of the minority over the majority, in which the minority controls politics and the economy.  Moreover, both are irrational, because they are forced to make bad compromises, in order to survive.  Finally, having trafficked in lousy ideas and disgraceful emotions, Marxism and Fascism ended up as abysmal failures whenever they were tried in practice.The state of the constitutional institutions have always determined the viability of a democracy.  Lawlessness, chaos, and anarchy engenders a feeling of uncertainty.  Adherence to the rule of law generates confidence.  Presently, only President Trump comprehends what is really happening in the United States of America.  Defending and reinforcing the Judeo-Christian foundations of America are the keys to preserving and strengthening the constitution-based governance of the greatest nation on earth.


Gorsuch’s Ruling Demands Employers Allow Sexual Harassment

What many commentators have missed is that the Bostock opinion provides the basis for the argument that single-sex bathrooms and locker rooms violate Title VII.

By Jacob Roth • The Federalist

On June 15, the Supreme Court issued its decision for Bostock v. Clayton County. The ruling established that firing an employee simply for being gay or transgender is a violation of federal law under Title VII of the Civil Rights Act of 1964 as a form of discrimination based on sex.

Justice Neil Gorsuch wrote the opinion for the six-justice majority. He established a simple “rule” for when sex discrimination occurs under Title VII: if changing the sex of an employee would change the employer’s decision, then the employer has violated Title VII.

This opinion has been lauded by the left and some on the right as an important step forward for gay and trans rights. What the Bostock cheerleaders who love the decision for its surface-level results don’t realize is the profound difference between a legislative policy change and a judicial policy change. “Legislation” from the courts carries the baggage of the reasoning used to achieve its result, and the contents inside can be volatile and dangerous when the courts finally get around to unzipping them.

Gorsuch’s rule creates problems because it lacks a limiting principle. What many commentators have missed is that the Bostock opinion already provides the basis for the argument that single-sex bathrooms and locker rooms violate Title VII. Even further, Bostock provides the basis for the argument that it is a violation of Title VII to enforce sexual harassment policies that are mandatory under Title VII.

The deep problems with Bostock are best illustrated by an example. Imagine an employer that has locker rooms for its employees. There is a male locker room and a female locker room. Each has a communal changing area and a communal shower area. The men in their locker room change and shower in front of one another. The women in their locker room do the same.

The employer also maintains sexual harassment policies that are mandatory under Title VII. These policies prohibit harassing behavior that creates a hostile or offensive work environment, as is federally required.

One day, after reading the Bostock opinion, a male employee who does not identify as transgender walks into the women’s locker room. The women are disrobing in the communal changing area and some are showering. The man disrobes in front of the women, then showers. The employer immediately learns of this and informs the male employee that he has violated the employer’s sexual harassment policies and is fired.

The male employee sues the employer for sex discrimination under Title VII based on the Bostock standard that the decision to fire him for his actions would have been different if he were a woman. The male employee argues that all he did was enter the women’s locker room, disrobe, and shower, and that female employees do those exact actions all the time without penalty.

He argues that his performance of the same actions got him fired only because he was a man doing them, which constitutes sexual discrimination under Bostock in the same way that if a man and a woman at a company are both attracted to men, but only the man is fired for it, then the company has sexually discriminated against the man.

Gorsuch and Bostock defenders do have an obvious argument for why the male employee could not claim discrimination under Bostock. They can say that the male employee’s actions in the locker room were not the “same” as what the female employees were doing because, when the male employee disrobed, he was exposing a male body and male genitalia to the women there, whereas the female employees were exposing female bodies and female genitalia when they disrobed.

Bostock defenders can argue that this biological difference is sufficient to establish that the male employee did not engage in the “same” action as the female employees, and thus his firing was not discriminatory. Yet this defense fails for two reasons.

The first reason is that it is utterly ineffective for dealing with a similar version of the scenario in which the male employee simply walks into the women’s locker room and grabs a towel from the shower area, thus allowing him to see the women in the changing area and shower disrobed and without exposing his body. The court would need to say that the male employee’s act of seeing the women is different from the women’s act of seeing each other, or to put it more simply, that “it’s different when a man does it.” But the argument that “it’s different when a man does it” is exactly the kind of thing Gorsuch rejected as discrimination in Bostock.

The second reason is that the argument about the asymmetry of male and female biology was missing from Gorsuch’s reasoning about sexual orientation and trans status in Bostock, even though it just as easily could have applied there. Either the concept of discrimination accounts for the natural distinctions and asymmetries between men’s and women’s bodies and the social context of their actions with the same and opposite sex, or it doesn’t.

In Bostock, Gorsuch decided that it doesn’t. This means that, just as Gorsuch declared that male same-sex attraction is the “same thing” as female opposite-sex attraction, so too does his logic require that a man exposing his body to women is the same as a woman exposing her body to women.

Bostock demonstrates the bad consequences of a judge’s unacknowledged assumptions about philosophy, theology, and other big ideas. In Gorsuch’s justification-free assumption that same-sex and opposite-sex attraction are literally the “same thing,” he has provided no guideline for how the actions of men and women can ever be distinguished sufficiently to keep women, like those in the locker room example, safe from a man intruding into places like their showers and exposing himself.

What would the solution be to correct for this? Would it be an arbitrary redefinition of some actions as inherently different when men and women do them, but not others that Gorsuch wants to enforce equality for? Would it be a standard that finds no difference between male and female sexual attraction to men, but does find an inherent difference between a man and a woman seeing women nude?

That kind of a scheme would further transform the judges’ robes into heroes’ capes, to wear as a Super-Legislature. Their list of super powers would be impressive: they don’t need to be elected and can’t be voted out; their laws don’t need presidential approval; they decide if what they do is constitutional; and they can create laws based on personal preference.

Justice Samuel Alito described Gorsuch’s appeal to textualism, and the claim that he was reading Title VII as it was written and nothing more, as akin to a pirate ship flying a false flag to get away with plunder. Such a self-serving use of official power for personal policy goals, as would be demonstrated by the Supreme Court scrambling to find asymmetries between men and women only where it would produce a patchwork of desired results, does sound like something a pirate would do.


Election Security Must Transcend Politics

By Ron Bushar • RealClear Policy

Election security has a key issue since the run-up to the 2016 U.S. presidential election. Over the past three years, many states have taken aggressive actions to strengthen their election infrastructure to provide enhanced security and resiliency for the 2020 primary and general elections. The global COVID-19 pandemic has added a new layer of complexity as local election authorities consider how to protect voter registration systems and rapidly pivot to a massive increase in the mail-in and absentee voting. The prevalence of election officials working from home and accessing election systems only expands opportunities for bad actors to disrupt or cause a loss of public confidence in the election system.

Election security issues range from direct threats, to the vote tally itself, to disinformation and influence operations by foreign actors. As of June 2019, we have not observed threat actors successfully altering vote tallies or results in any US election. That is the good news. The bad news is we know there are threat actors out there actively trying to influence U.S. voters, and by extension, the outcome of elections. The impact from the pandemic only exacerbates this concern.

Election security threats should be looked at as an ecosystem categorized into three principal layers. Each layer is equally important but is targeted in different ways by those trying to collect intelligence, target data, and impact the confidence of American voters. This impact would give threat actors precisely what they are looking for — the power to sway a vote or extend a political agenda. Each layer also has its own unique set of information technology, processes, and related risks that must be accounted for when planning for a robust defense.

The inner, and most critical segment is the voting infrastructure layer. This layer encompasses all of the systems and technology directly supporting the casting, recording, tallying, management, and certification of votes. The targeting of this infrastructure is the most concerning because it could have a direct impact on both the integrity and availability of the voting process. Fortunately, given the federated and generally segmented nature of voting systems in the U.S., there is a its limited attack surface presented to threat actors. Modifying or preventing the casting of enough ballots to change the outcome of national election undetected would be extremely difficult. Although we haven’t directly seen vote tallies altered by malicious actors in U.S. elections, that doesn’t mean they have not been trying. The U.S. Senate Intelligence Committee report on Russian targeting of U.S. election infrastructure stated that they observed adversaries conducting vulnerability scans targeted at election systems in every single state in the U.S. during the runup to the 2016 election. The larger systemic risk at this layer is an erosion of public trust in the voting process and the integrity of the results if these critical systems cannot demonstrate consistent and sustained security and resiliency against cyberattacks.

The second layer of the election ecosystem are the organizations and systems involved in supporting elections. These include infrastructure such as voter registration systems, and boards of election and election commission networks. For any adversary who intends to disrupt or influence elections, these government administrative networks represent the next most direct and impactful targets of opportunity. In the past, state and local officials, electoral registers, and commissions have all been targeted by actors in attempts to disrupt elections. While such compromises may not provide access to properly segmented election systems, threat actors compromising institutions affiliated with elections have the potential to disrupt pre-election and election day activities and more deeply damage the public’s faith in the electoral process should news of such intrusions become public. Beyond the threats from nation state actors, U.S. officials are publicly concerned about the effect ransomware attacks might have on the 2020 presidential elections, as the threat from criminals utilizing disruptive malware continues to impact state and local governments.

The third and most exposed layer of the election ecosystem represents all of the individuals and organizations with some stake in the political campaigning process, from social networks and news organizations to donor groups and political parties. Threat activity that has historically been observed in this segment has included cyber espionage — and in some cases the purposeful leaking of the data obtained in that manner — as well as disinformation campaigns. While far removed from altering actual systems that votes are cast or tabulated on, this sort of threat activity presents opportunities for malicious actors to attempt to influence public perception and guide a narrative which they hope will amplify a particular message or divide voters on crucial issues, This layer is often forgotten or much less visible to voters and the media, and yet can have an impact on their decisions inside the polling booth. If threat actors can successfully manipulate information so close to the election that there isn’t enough time to authenticate fabricated content being disseminated, irreversible damage may be done. Even if our adversaries are not directly successful, the fallout from foreign manipulation (actual or perceived), can have major consequences to both policy and public discourse for years after the election.

The seriousness of this threat transcends politics or policy disagreements. All stakeholders in the democratic process, from state and local election officials, to federal support functions, to campaigns and parties, have limited time and resources to adapt given new challenges posed by COVID-19. To best secure the U.S elections this year we must take an approach that understands the same threat actors and sponsors may target multiple parts of the ecosystem. Similarly, election security is not about a single candidate or one party over another. All sides are targets. This is about an attempt to divide and erode democratic institutions and confidence in our voting process. There is an urgent need to defend our democracy against these disruptive and divisive attacks. We are all much more aware and educated about the risks and threats facing our elections than we were four years ago. With a concerned and focused effort, we can ensure a safe, fair, and free election for all Americans.


The Pledge of Allegiance

By Red Skelton • barefootsworld.com

I remember this one teacher. To me, he was the greatest teacher, a real sage of my time. He had such wisdom. We were reciting the Pledge of Allegiance, and he walked over. Mr. Lasswell was his name….He said:

“I’ve been listening to you boys and girls recite the Pledge of Allegiance all semester and it seems as though it is becoming monotonous to you. If I may, may I recite it and try to explain to you the meaning of each word:

– me, an individual, a committee of one.

PLEDGE – dedicate all of my worldly goods to give without self-pity. 

ALLEGIANCE – my love and my devotion.

TO THE FLAG – our standard, Old Glory, a symbol of freedom. Wherever she waves, there is respect because your loyalty has given her dignity that shouts freedom is everybody’s job.

OF THE UNITED – that means that we have all come together.

STATES OF AMERICA – individual communities that have united into [our] great states. . . individual communities with pride and dignity and purpose, all divided with imaginary boundaries, yet united to a common purpose, and that’s love for country.

AND TO THE REPUBLIC – a state in which sovereign power is invested in representatives chosen by the people to govern. And government is the people and it’s from the people to the leaders, not from the leaders to the people.

FOR WHICH IT STANDS.

ONE NATION – meaning, so blessed by God.

INDIVISIBLE – incapable of being divided.

WITH LIBERTY – which is freedom and the right of power to live one’s own life without threats or fear or some sort of retaliation.

AND JUSTICE – the principle or quality of dealing fairly with others. 

FOR ALL – which means it’s as much your country as it is mine.”

Since I was a small boy, two states have been added to our country and two words have been added to the Pledge of Allegiance – “under God”.

Wouldn’t it be a pity if someone said, “That’s a prayer” and that would be eliminated from schools, too?


When in the Course of Human Events

By Peter Roff • Newsweek

With the anniversary of our independence from Britain just around the corner, the social strife now appearing ubiquitously on social media has many of us questioning what is happening to America. From those whose lineage goes back to the original European settlers to those who earned their citizenship in just the last few years, we’re wondering, some of us, if the nation as we’ve known it can survive.

It can—and it will. We’ve been through worse and come out the better for it. We are not perfect and never have been. We are, however, still what Lincoln called “the last, best hope of earth.”

Are there inequities? Sure, just as there are in any country. Here we have freedoms guaranteed to us by our Founding documents that allow us wide latitude—some would say too wide, these days—to express our concerns about our leaders and about the policies that shape the nation. This is not the case in China, Somalia, Cuba, Venezuela or any of the other dictatorships that many of the young Americans now protesting only know as dots on a globe or listings on Wikipedia. Yet few of them, given the chance, would swap our system of government, the rights we enjoy and the economic realities of living in those countries for life in the United States.

Some are nonetheless cheering on those who’ve chosen violence. Most of us still abhor the rioting and looting and the assaults and murders of police officers and others seeking to keep the peace. We can see no justification for it, no matter how serious the perceived injury might be. That speaks well of the majority. We are not yet the kind of animals those who would bring the entire system crashing down, though some would like to get us there on the fast train.Ads by scrollerads.com

Some of them believe, and they’ve made this abundantly clear, that the social contract has been broken. That the government we have now lacks the consent of the governed and, according to Locke and other Enlightenment philosophers, the people have the right to seek a replacement by any means necessary.

They’re within their rights to think that and to proclaim it. To most of us, though, this is nonsense. And it will continue to be nonsense as long as peaceful means remain available to bring about change in government.

Are we perfect? No, and we never have been. Are we better than every other country? Many would say yes but, to be fair, let’s agree that we at least consistently rank in the top ten. Rather than feel we are inexorably stained by our slaveholding past—a past not unique to this country, and a practice that still exists in other parts of the world—and that there is no way to overcome it, let us celebrate how far we have come. As Independence Day approaches, let us remember how America has consistently led the world, how we have been a haven for the oppressed, how our sons and daughters have given life and limb in the fight against tyranny in many parts of the world and how we remain a beacon to those longing for freedom and as close to a true meritocracy as any nation that has ever existed.

America is the place where you can rise above the circumstances of your birth to accomplish and acquire. It is also where you can fall from great heights, sometimes spectacularly, and lose everything. Elites and establishments do exist in just about every walk of life, but they are more open and democratic here than in most other parts of the world. Meanwhile, we have become the place where, as Dr. Martin Luther King, Jr. said so many years ago, the sons and daughters of former slaves and former slave owners can meet together over the table of brotherhood.

To some, none of that matters. They want to remake America according to what they feel and follow the dictates of largely ill-considered contemporary truths that have failed as governing principles in the other nations that have tried to implement them. They ignore at their peril the eternal truths expressed and refined through thoughtful debate by the Founders who, while not perfect, should be judged by history and by us for the body of their accomplishments and the sum of their lives. “If men were angels,” James Madison said, “no government would be necessary.”

Well, men are not angels and those who conceived and wrote the governing compacts still in force today should be praised for their vision and for their belief that what “this new nation, conceived in liberty and dedicated to the proposition that all men are created equal” had to offer, has to offer, and will have to offer in the future. It is superior to what any other nation on earth at the time could do. Lincoln Steffens was wrong. The future did not work.

Life. Liberty. The pursuit of happiness. The American story is just as much about the ongoing struggle to secure these for everyone, generation after generation, as it is about anything else. Some things have come easier than have others. The struggle endures but shall not end until those objectives have been achieved. Freedom is the aim and always, God willing, shall be.


Republicans Demand Pelosi Stop Distribution of Chinese Propaganda on Capitol Hill

Chinese propaganda outlet continues daily delivery to Congress

By Yuichiro Kakutani • The Washington Free Beacon

Getty Images

Republicans are challenging House Speaker Nancy Pelosi (D., Calif.) to stop the distribution of Chinese propaganda on Capitol Hill, according to a letter exclusively obtained by the Washington Free Beacon.

Rep. Jim Banks (R., Ind.), a member of the GOP-led China task force, has petitioned the Department of Justice and congressional employees to stop China Daily, a Chinese Communist Party-controlled propaganda outlet, from delivering its papers to the Capitol every morning. Now Banks and four other House Republicans are taking the issue to the very top of House leadership, asking for Pelosi to intervene.

“I assume you are just as outraged as I am by the presence of such disgusting lies in our nation’s legislature,” the letter to the House speaker reads. “This is an opportunity for you to … prove to voters the Democrat Party also takes the China threat seriously. It’s time for you to end the proliferation of Chinese-state propaganda in the United States’ Congress.”

The letter comes at a time of mounting scrutiny of the activities of Chinese propaganda outlets in the United States. In February, the Chinese government kicked out U.S. journalists reporting on the coronavirus outbreak, prompting the Trump administration to designate Chinese propaganda outlets, including China Daily, as “foreign missions” and demand that they drastically reduce their staff. The new designation requires the outlets to follow the same administrative requirements as embassies and consulates. After China retaliated by expelling even more journalists, the White House required several more Chinese outlets to comply with the regulation on Monday.

China Daily has delivered its papers to the doorsteps of many congressional offices for years now, disseminating a consistently pro-CCP and anti-American viewpoint to hundreds of members of Congress and their staffers. The outlet, for example, has capitalized on recent unrest in American cities stemming from the death of George Floyd to deflect from its own human rights abuses in Hong Kong.

Pelosi’s office did not respond to a request for comments.

China Daily has distributed propaganda in the United States since 1983, according to federal disclosures filed with the Department of Justice. The disclosures also show that the Chinese government funneled millions of dollars to the mouthpiece, which then used that money to purchase more than 500 pages of advertorials—propaganda articles meant to look like legitimate news items—in the pages of the New York TimesWashington Post, and other major news outlets. Banks and 34 other members of Congress previously demanded a Justice Department probe into the matter, citing a Free Beacon report that found the paper has failed to comply with federal disclosure requirements for decades.

“There is no question the United States is facing a set of unique challenges right now,” the letter to Pelosi read. “As we’d expect, our adversaries are trying to take advantage of the moment to undermine America’s global leadership. Perhaps no one is seizing the moment more than China.”ADVERTISING

Banks has repeatedly demanded an end to the circulation of the propaganda outlet, first raising the issue to Philip Kiko, Congress’s chief administrative officer, and the Department of Justice in September. After Kiko told Banks that the issue was outside his jurisdiction, the congressman then asked the Committee on House Administration to stop the paper’s distribution in December. According to the letter, however, Banks’s petition to the committee fell on deaf ears, prompting the legislators to take the matter to Pelosi.

“I sent letters to Congress’s Chief Administrative Officer and to the Chairperson and Ranking Member of the Committee on House Administration asking for help,” the letter says. “Unfortunately, I didn’t receive any; so, I’m turning to you as Speaker of the House. I ask you: How is Chinese propaganda arriving on my doorstep each morning when the Capitol is closed to the public? And what are you going to do about it?”

The Department of Justice did not respond to a request for comment about the status of Banks’s request.

Rep. Greg Steube (R., Fla.), a signatory of the letter, said that Pelosi and House Democrats must stop the distribution of the propaganda in their own backyards if they want to show that they are serious about the threat posed by the Chinese government.

“Speaker Pelosi and House Democrats clearly do not take the threats from China seriously if they allow CCP propaganda to circulate the halls of Congress,” he said. “This is weakness, not leadership at a time when we desperately need to hold China accountable for their role in spreading a global pandemic and widespread economic hardship.”


America’s Uncertain Recovery

Predicting the speed and strength of the United States' recovery from the current recession is extremely difficult. But what is clear is that policymakers must boost incentives to work in normal times when jobs are plentiful, while strengthening the safety net for when they are not and for those who are unable to work.

By MICHAEL J. BOSKIN • Project Syndicate

STANFORD – Like most of the world, the United States is attempting to overcome both the COVID-19 pandemic and a deep recession caused by the resulting government-ordered shutdown. At annual rates, the US economy shrank by 5% in the first quarter of 2020, and in the second quarter just ending, it could contract by 40% – the steepest decline since the Great Depression.

Moreover, tens of millions of workers have lost their jobs, causing the unemployment rate to soar to a post-Great Depression high of 14.7% in April. And although 70% of those laid off say they expect to be recalled to their jobs, not all will be, because many firms will fold, relocate, or reorganize.

True, the initial reopening of the economy has led to a sharp rebound that is projected to continue in the third quarter. Employment rose by 2.5 million in May, while high-frequency data from credit cards and mobility tracking for May and June show sizable bounce backs from April lows, with activity in a few sectors approaching or even exceeding year-earlier levels.

But the rebound varies by sector and region. Although Big Tech, home-improvement suppliers, and retail sales of alcoholic beverages have flourished, travel and leisure have collapsed and will take much longer to recover. And restaurants with drive-through service have fared much better than those able to serve only indoors.

Most forecasters therefore predict that the early “V-shaped” recovery will slow over the next few quarters, and instead come to resemble the Nike swoosh. But this plausible baseline forecast is subject to greater than normal uncertainty.

For starters, the shutdown of non-essential businesses in response to the pandemic led to a demand-side shock as well. So far, trillions of dollars in business grants and loans, cash payments to households, and unemployment insurance with federal bonus payments (enabling two-thirds of eligible workers to receive benefits that exceed their lost earnings) have provided a cushion to help the economy recover. The US Federal Reserve has pledged to keep its target interest rate until the economy returns to full employment, and it continues to expand the scope of its asset purchases. And a fourth fiscal package expected next month should focus on reopening the economy, including by limiting firms’ legal liability and redirecting bonus payments to encourage employees to return to work.

How quickly the US recovers from its public-health and economic crises will also depend on how well other countries handle them, and vice versa. The World Bank expects 93% of countries to slide into recession in 2020, the highest share ever.

Although the recent spikes in new COVID-19 cases and hospitalizations in the US appear manageable for now, given adequate provision of hospital beds and equipment, a significant worsening could trigger new shutdowns or stall further reopening. That would slow the recovery, resulting in economic despair and related health and social problems for many Americans.

Moreover, America’s twin crises have revealed longer-term problems, starting with the country’s inadequate stockpiles of medical supplies. California, for example, never maintained the supplies then-Governor Arnold Schwarzenegger built up to combat the 2002-03 SARS epidemic, and had to repair hundreds of defective ventilators. And state governments’ antiquated computer systems for processing unemployment claims and dispensing benefits buckled under the pandemic-induced strain.

In addition, the COVID-19 shock has shown that too many individuals and firms lack the financial margin to weather even a few months of lost income or revenue. It has also both highlighted and worsened racial disparities in health, income, and vulnerability to economic and health shocks.

These crises elicited massive, rapid, and unprecedented interventionist responses. But government responses enacted under exigent circumstances must control costs better and restore private incentives in the longer term, because history shows that, once launched, public programs and interventions seldom end.

The economic and health recoveries also heavily depend on the actions of businesses, citizens, and schools, including whether they adhere to recommended precautions such as social distancing, frequent hand washing, and wearing face masks. It remains to be seen whether firms can survive with restrictions on employees and customers, and whether the accelerated digital transformation will be a net plus. The other danger, of course, is a large second wave of the virus that overwhelms hospitals and scares away employees, students, and customers.

One bright spot has been the rapid pace of adaptive innovation. Most US schools quickly continued teaching online following the shutdown, while telemedicine has boomed, helped by the relaxation of government pay restrictions and rules prohibiting inter-state medical consultations. And medical researchers quickly refocused on COVID-19 testing, therapeutics, and vaccines: human trials have started for several promising vaccines, and new tests may be deployed before winter. For the first time, vaccine production capacity will be ramped up simultaneously with testing, so that any safe and effective vaccine that emerges will become available far more quickly.Sign up for our weekly newsletter, PS on Sunday

But the longer-term problems revealed by the pandemic and the recession will not disappear when these crises end. True, before COVID-19 struck, things finally had started looking up for lower-income workers. Minority unemployment was at an all-time low, and wages were rising most rapidly at the bottom of the pay scale. But while strong economic growth will be needed to ensure that these trends resume, there are pockets of people who have been left behind.

To address this requires reinvigorating policies to broaden school choice, bring private jobs and capital to depressed areas, and ensure better job training (including more apprenticeships and job matching), as well as taking a new approach to overlapping means-tested anti-poverty programs. US welfare recipients face extremely high implicit marginal tax rates in terms of the benefits they lose if they work, with many standing to earn less if they worked than if they remained on the several overlapping programs.

It is extremely difficult to predict the speed and strength of the US economic recovery with any certainty. What is clear, however, is that we must boost incentives to work in normal times when jobs are plentiful, while strengthening the safety net for when they are not and for those who are unable to work.


The Media Mirror Has Two Faces

By JAMES MCCARTHY • National Review

People line up for taxis across the street from the New York Times headquarters in 2013.  (Carlo Allegri/Reuters)

Two recent pieces in Vox and the New York Times say outright what many of us have long understood is an implicit belief among our elite media: that the media are motivated — and should be motivated — by ideology, not objectivity.

Of course, the ethics guidelines and mission statements of leading outlets have yet to acknowledge this reality, and many still read like paeans to the old gods.

“Our fundamental purpose,” the New York Times cautions its reporters, “is to protect the impartiality and neutrality [of our] reporting.” The Washington Post insists on strict “fairness” and that it “shall not be the ally of any special interest.” We are “unbiased, impartial, and balanced,” declares the Associated Press. “Non-ideological objectivity” is what the Los Angeles Times assures readers it maintains. “Professional impartiality . . . without our opinions,” is the standard declared by National Public Radio.

But if you look at what journalists actually say about each other and their racket behind closed doors, at the champagne-soaked galas where they hand each other prizes, you’re hard-pressed to find an acknowledgment that impartiality or balance are even virtues at all.

The most insider-y of these onanistic lovefests is the annual Mirror Awards, hosted by the prestigious Newhouse School of Public Communications and focused on reporters who cover the journalism industry itself.

One of this year’s nominees for “Best Story on the Future of Journalism,” the Pacific Standard’s Brent Cunningham, perhaps captures the new media zeitgeist most starkly in an article  spotlighting reporters who hold the “belief that journalism’s highest calling [is] not some feckless notion of ‘objectivity,’ but rather to . . . expose the many ways the powerful exploit the powerless” and “f*** ’em . . . with the facts.” Indeed.

Reporter Jon Marcus was nominated for a piece in Harvard’s Nieman Reports about reporters who withhold certain facts — say, the name of a mass shooter — in a move that’s come to be called “strategic silence.” While Marcus says it’s a “fraught and complex debate” that “media organizations are struggling with,” he rehearses an Olympian leap of logic from a left-wing activist at Media Matters, who argues that reporters should apply this strategic silence to the leader of the free world, too: The idea is that they should refrain from reporting statements by President Trump that they determine are not “inherently newsworthy” or that they classify as “misinformation.” Say what you will about the man — he probably shouldn’t be covered like a gunman.

Forget about laying out the facts, or airing competing viewpoints, or writing “the first draft of history.” Americans are far too thickheaded for that. Marcus cites another sage who observes that “assuming media literacy . . . may be optimistic.” Yet another one of his sources bemoans journalists who assume that if you merely “throw facts at someone . . . that’s going to change their minds.”

The other nominees for the 2020 Mirrors (19 in all, across six categories) hardly need the encouragement to selectively slant their reportage. The list includes a host of liberal media darlings singing straight from the progressive hymnbook. In the eyes of the Newhouse School, apparently no conservative writers came up with any worthy media criticism in the last year.

Elsewhere The New Yorker’s Jane Mayer, a writer whose leftism is more knee-jerk than a can-can dancer’s, was nominated for an essay called “Trump TV,” which explains that, gee whiz, Fox News tends to support the president. Move over, Bob Woodward.

The Mayer love gets meta, too. Nominated for “Best Profile” is a piece by Molly Langmuir that appeared in the glossy magazine Elle, titled “What’s Next for New Yorker Reporter Jane Mayer?” Here is what the awards committee regards as an exemplar of “hold[ing] a mirror to their own industry for the public’s benefit”: “In person, Mayer, who is petite with brown shoulder-length hair she usually wears down, the tips slightly flipped up, displays a confidence that has no visible fault lines. She also has a tendency toward self-deprecation. And while her mind often seems to whir with seamless elegance, this appears to fuel in her not impatience but curiosity.”

And here’s a detail that didn’t make it in alongside the flipped tips: Mayer was recently excoriated by critics across the ideological spectrum for a baseless and uncorroborated hit piece she co-wrote, the central claims of which were later disavowed by “several dozen” sources contacted by the New York Times.

In an Orwellian flourish, Langmuir explains that to Mayer, the “furor from both the left and right” over the piece was a consequence of her and co-author Ronan Farrow’s own “attempts at carefulness.” Mayer told Langmuir that she had focused on the “‘accountability portion, trying to be fair,’” you see. Plus, Mayer’s certainty on the unsubstantiated accusation she did get into print was “informed by [another] incident Mayer learned about, the one she didn’t get into print.” Got that? The reporting rejected by every other mainstream outlet except The New Yorker was backed up by reporting rejected by every mainstream outlet — including The New Yorker.

If Mayer was at all chastened by the denunciation of her work by her peers, it’s hard to tell. In her most recent piece, “Ivanka Trump and Charles Koch Fuel a Cancel-Culture Clash at Wichita State,” she returned to one of her pet obsessions. Riffing on original reporting in the Wichita Eagle, Mayer deceptively claimed that Koch Industries “threatened to withdraw its financial support for the university” after Ivanka Trump was disinvited from giving a commencement speech. But the source article makes clear that neither Koch Industries nor Charles Koch threatened any such thing. A company spokesperson said explicitly that the company was not pulling funding and in fact stressed its commitment to “academic freedom.”

Maybe Elle ought to hold off on the puff profiles, and Mirror on the awards, until Mayer can master faithfully representing all the facts she finds reported in regional newspapers?

And that isn’t even the biggest coffee-spitter Mirror Awards nominee. That honor would go to David Zurawik of the Baltimore Sun, saluted for his opinion piece applauding MSNBC host and serial prevaricator Brian Williams. “At this moment when journalism and a free flow of reliable information are under continual attack from the Trump administration and its many media allies,” Zurawik proclaimed, “our democracy is made stronger by having Williams . . . at the end of each weeknight to offer perspective on the political and cultural warfare” in our “nation’s civic life.”

But that’s tame stuff compared to the outright agitprop of the nomination for a multipart series jointly published by the Columbia Journalism Review and The Nation, “The Media Are Complacent While the World Burns,” which argued that the press doesn’t spend enough time talking about climate change. Right, and the New York Post ought to devote more ink to a plucky ballclub from the South Bronx called the Yankees. A recent report found that in 2019 the top five U.S. newspapers combined ran between 400 and 800 articles per month that mentioned climate issues. The top seven TV news outlets (ABC, CBS, CNN, Fox News, MSNBC, NBC, PBS) combined covered climate issues between 200 and 400 times a month.

For the authors of that series, Mark Hertsgaard and Kyle Pope, the sheer volume of this reporting isn’t good enough if it doesn’t send readers to the ramparts. “Instead of sleepwalking us toward disaster,” they insist, “the US news media need to remember their Paul Revere responsibilities — to awaken, inform, and rouse the people to action.”

Let me suggest a different historical analog for Hertsgaard and Pope. It was a former newspaper editor, Vladimir Lenin, who once wrote, “A newspaper is what we most of all need . . . [in] the pressing task of the moment. . . . Never has the need been felt so acutely as today for reinforcing dispersed agitation . . . that can only be conducted with the aid of a periodical press. . . . A newspaper is not only a collective propagandist and a collective agitator, it is also a collective organizer.” That’s why, to turn the sleepwalkers into the fully woke, Lenin created the infamous Department of Agitation and Propaganda, or “agitprop” for short.

For all that they say the quiet parts out loud, most journalists still want to have it both ways. They want the satisfaction of slanting coverage to suit their ideological commitments but without giving up the authoritative veneer of neutral objectivity. This duplicity helps explain why surveys from leading media groups like Pew Research show a fast-growing majority of Americans no longer trust the news.

The Mirror Awards, at least, seem to have sensed which way the winds are blowing and are sailing in that direction. They’ve moved away from their promise that the prizes should “recognize reliable reporters who criticize the media and put their own views aside [to] be transparent and objective” and toward the consensus that the problem is “the media’s reliance on objectivity and what some see as false equivalency,” as Newhouse professor Joel Kaplan puts it.

Objectivity is for suckers. A reporter’s own subjective assessment is what counts, and the public is depending on the media to tell them what to think and how to vote.14

Fine. But treat readers like grownups. Polemic masquerading as unbiased reporting demeans everyone involved, making liars out of the press and treating the public like idiots. So why not end every article with a shirttail stating plainly the reporter’s point of view? The author of this piece is a committed progressive and would like [insert desired political result] to come from the issues raised here.

The Newhouse School could even give the first New York Times or Washington Post reporter to adopt the practice an award for bravery.


Did Biden Play the Obama Card Too Soon?

By Peter Roff • Newsweek

It’s been decades since the Democrats settled on a presidential nominee as weak as former Vice President Joe Biden. He’s not popular in his own party. In Tuesday’s Kentucky presidential primary, for example, he only won about 60 percent of the vote—and he’s already clinched the nomination.

Party leaders should be worried about this. It’s not as though the only Democrats to show up in the Bluegrass State on Tuesday were the fringes and the freaks. The suddenly competitive race between former congressional candidate Amy McGrath and State Senator Charles Booker for the nomination to go against Senate Majority Leader Mitch McConnell (R-KY) in the fall brought out Democrats of all stripes all over the state. Much of the party faithful, it’s clear, just doesn’t like the idea of a Biden presidency.

If things were any worse, the talk of replacing him at the top of the ticket might be at a fever pitch by now. Instead, while he hides in his basement—and perhaps because he does—Biden is ahead in every national poll, just about every poll in just about every swing state and is preferred by most voters to Donald Trump on every issue except the handling of the economy. And even if the polls are suspect, as Trump’s team and many Republicans say they are, the Democrats must be pleased with the sentiments those polls reveal.

For all intents and purposes, it is a strange election indeed. Which makes the decision to play the “Obama card” so early in the process curious.Ads by scrollerads.com

Obama is the big gun. He’s Mr. Charisma. He’s the face of the Democratic Party everybody loves. Usually, you’d hold someone like him back for the fall election and then work him nearly to death, sending him to every targeted state, time and again, on the party’s behalf. If Hillary Clinton had been able to do that with husband Bill in 2016, she might have won, but—for reasons already discussed ad nauseam—Republicans like Roger Stone kept him pretty much on the sidelines. Yet rather than hold Obama in reserve to move the voters they need to win late in the election, the Biden people rolled him out earlier in order to raise money.

It makes some sense. Biden may be leading the polls, but he’s trailed way behind Trump in fundraising. That, oddly enough, may end up being what makes the difference in November. The free campaign being waged by the pundits, political reporters and news channels on Biden’s behalf have made the election a referendum on Trump.

That’s a hard race for anyone to win, let alone the current president—especially given the cynical nature of most American voters. No contemporary politician except possibly Ronald Reagan—who won 49 of 50 states in 1984—could run against his own record and win. No one is that good. No one is that beloved. Even Barack Obama, unlike Bill Clinton, got fewer votes running for re-election than he did in 2008.

Presumptive Democratic presidential nominee Joe Biden
Presumptive Democratic presidential nominee Joe BidenJOSHUA ROBERTS/GETTY IMAGES

If it were up to the people who establish the national campaign narratives on the newspapers and TV screens, the campaign would remain a referendum on Trump. But they can’t control that. The president needs to change the conversation and make the election a choice between competing visions of what America should be—and force voters to make that choice.

Team Trump can do it. It has more money in the bank than any of his predecessors, money that’s being used to establish communication channels all over social media. The campaign is even doing original programming to counter what’s airing on the networks. It’s a great leap forward, and Biden alone can’t raise the money to match. So in that sense, playing the Obama card now makes sense. The former vice president’s campaign needs the kind of money only someone of the former president’s stature can raise right now.

It may also be that Obama, while of great value to candidates down-ballot in the general election, won’t be able to help Biden on the stump much at all. The former president will always overshadow the would-be future president at every joint appearance. Appearing on his own, he’s a constant reminder to every Democrat and independent of how charisma- and vision-challenged Biden actually is.

Keeping Biden in the basement may not have been intended as a strategy, at first. It may have just been a response to the COVID-19 lockdowns. But now it looks like a blessing in disguise. The voters, at least right now, are showing a decisive preference for the candidate they can’t see over the one they can. It’s not clear if that is sustainable, but the Democrats will try to keep it going for as long as they can. Unfortunately for the down-ballot races, that may mean keeping Obama under wraps, too. They can’t risk giving Trump anything to play off other than himself.


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