How this pernicious ideology rejects rational inquiry and objective truth.
On September 22, 2020, President Trump issued Executive Order 13950, “Combating Race and Sex Stereotyping.” The order contained the kind of emotionally charged language about critical race theory that is seldom seen in these legalistic documents: “This ideology is rooted in the pernicious and false belief that America is an irredeemably racist and sexist country; that some people, simply on account of their race or sex, are oppressors; and that racial and sexual identities are more important than our common status as human beings and Americans.”
The order quoted from training materials being used by government agencies and from statements of the agencies themselves, such as this from the Treasury Department: “Virtually all White people, regardless of how ‘woke’ they are, contribute to racism.” The department, according to the order, “instructed small group leaders to encourage employees to avoid ‘narratives’ that Americans should ‘be more color-blind’ or ‘let people’s skills and personalities be what differentiates them.’” Trump’s order was revoked by President Biden on his first day in office.
By this time, however, the ideas that had prompted Trump’s concerns had already begun to disturb the lives of the American people who encountered them. In a suit filed in the U.S. District Court for the District of Nevada on December 20, 2020, Gabrielle Clark, the mother of William Clark, a twelfth-grader in a Nevada charter school, complained about the school’s refusal to accept her son’s objection to what was being taught in a recently revised civics course. Ms. Clark, a widow, is black. Her son’s father, however, was white, and her son was light-skinned enough to be considered white.
In her complaint, Clark stated that a new curriculum at William’s school “inserted consciousness raising and conditioning exercises under the banner of ‘Intersectionality’ and ‘Critical Race Theory.’” “The lesson categorized certain racial and religious identities as inherently ‘oppressive,’ . . . and instructed pupils including William Clark who fell into these categories to accept the label ‘oppressor.’”
Despite Clark’s and her son’s objections to what he was being required to admit about himself and his racial heritage, the school insisted that he take this course and gave him a failing grade — imperiling his chances for college admission — because of his refusal to admit that he harbored the views that were being pressed upon the class.
The remarkable thing about the school’s attitude was its refusal to recognize a student’s objection to the characterization of his personal views. As we will see, this is an insignia of what is now called critical race theory (CRT), which for reasons outlined below will not — actually cannot — accept any white person’s view that he or she is not a racist or oppressor.
Bari Weiss is a former employee of the New York Times, a highly educated and successful writer, who resigned from the staff of the Times in July 2020, with a letter to the publisher complaining of the development within the paper’s staff of a “consensus” that “truth isn’t a process of collective discovery, but an orthodoxy already known to an enlightened few whose job it is to inform everyone else.” Although Weiss has never publicly identified the “orthodoxy” she described in the letter, it is clear from her actions later that it is the same “divisive concepts” identified by Trump in his executive order and described in Gabrielle Clark’s complaint.
Since then, Weiss has taken up the cause of showing how widespread and dangerous these ideas have become. In a memorandum to her mailing list on March 10 this year, Weiss described the predicament of affluent parents in Los Angeles who see their children being indoctrinated with ideas about critical race theory but don’t protest, for fear of being called racists themselves.
In its way, this is as extraordinary as Trump’s executive order and the refusal of William Clark’s school to accept his protest that he is not a racist. This Los Angeles parents’ group, Weiss wrote, “is one of many organizing quietly around the country to fight what it describes as an ideological movement that has taken over their schools. . . . They are all eager for their story to be told — but not a single one would let me use their name. They worry about losing their jobs or hurting their children if their opposition to this ideology were known.” Another said her son begged her not to talk to Weiss. “He wants to go to a great university, and he told me that one bad statement from me will ruin us. This is the United States of America. Are you freaking kidding me?”
In February 2021, Jodi Shaw, a white female employee of Smith College, resigned, accusing the school of creating a “racially hostile environment” for white people. The incident that produced this reaction occurred in 2018, when a black student was found eating her lunch in a room that was not supposed to be in use. The janitor and the security staff, both white, had advised her to leave and, according to all reports, had acted properly. They were dismissed by the school after the student’s complaint of racism. The school then began a series of initiatives that were intended to eliminate “systemic racism” on campus.
This was not the end of the matter. On March 22, 2021, an organization called “1776 Unites” also wrote a letter to Smith president Kathleen McCartney:
We, the undersigned, are writing as Black Americans to express our outrage at the treatment of the service workers of Smith College. . . . Before investigating the facts, Smith College assumed that every one of the people who prepare its food and clean its facilities was guilty of the vile sin of racism and forced them to publicly ‘cleanse’ themselves through a series of humiliating exercises in order to keep their jobs. Smith College offered no public apology to the falsely accused and merely doubled down on the shaming of its most vulnerable employees.”
For purposes of this essay, the key element in the Smith episode is the failure of the college president to apologize publicly or privately to Jodi Shaw or the white service workers who lost their jobs without good reason. It reflects an uncompromising and unreasoning attitude that accompanies every example of how critical race theory is implemented. No quarter is given, as though no wrong was actually done. It’s as though the individuals involved are not of any importance — just the principle that “racial justice” be achieved. This is a characteristic of totalitarian ideas, and hostile to the concern for individuals that has always characterized classical liberal thinking in the United States.
Why This Is Different
What is happening in the U.S. today, however, is different from ordinary leftist bias. Even where the progressive Left is dominant, its members usually claim that open debate is a good thing. This is not the case with programs like critical race theory. There, as in the examples above, reason and compromise are abjured.
Where did this attitude come from?
It would not be surprising to find in this a link to Marxism, a belief system that does not depend on facts or evidence but asserts that capitalism is at the root of society’s evils, including racism. It’s likely that what we are seeing in the rise of critical race theory is a transmuted form of Marxism, characterized by the same rigidity of outlook but with an updated or modernized complaint about the society and social system it is attacking.
In Cynical Theories, a book on the rise of CRT, authors Helen Pluckrose and James Lindsay lay the ultimate responsibility for the rigidity of CRT and related ideas at the door of an academic community that has become enthralled to a new philosophy called “postmodernism.”
A New Secular Religion Evolves
“Postmodernism first burst onto the intellectual scene in the late 1960s,” Pluckrose and Lindsay write, “and quickly became wildly fashionable among leftist and left-leaning academics.” In principle, it denied that truth was discoverable through reason and emphasized the importance of ideology. “The idea that we can come to know objective reality and that what we call ‘truth’ in some way corresponds to it were placed on the chopping block.”
This cynical view turned activist in the 1980s. Postmodernists tried to use this philosophy for “activism on behalf of women and LGBT and, in the United States, the Civil Rights movement . . . just as disillusionment with Marxism — until then, the main, longstanding leftist social-justice cause — was spreading through the political and cultural left. Given the catastrophic results of communism everywhere it had been put into practice, this disillusionment was well founded and radically altered the worldviews of leftist cultural elites.”
It is ironic that although American progressives have eschewed Marxism and its offshoots for well over a century, they should now have fallen in love with a successor to Marxism that is at least as radical and intractable. The difference is that critical race theory and related notions present themselves not as political theories but as purely social ideas.
Many things changed as postmodern theory turned to activism. Pluckrose and Lindsay write that
teaching became a political act. . . . In subjects ranging from gender studies to English literature, it is now perfectly acceptable to state a theoretical position and then use that lens to examine the material, without making any attempt to falsify one’s interpretation by including disconfirming evidence or alternative explanations. Now, scholars can openly declare themselves to be activists and teach activism in courses that require students to accept the ideological basis of Social Justice as true and produce work that supports it.
Obviously, where CRT is taught, it seals off all counterarguments and requires that whites accept the views of nonwhites about the realities of what nonwhites have experienced. No one, CRT proponents argue, who has not actually experienced racism as a black or brown person can claim not to be a racist, because no one who has not experienced racism can fully comprehend what it means.
This attitude inverts the truth, disrupts honest discussion between races, and denies any role for reason. In other words, the more a white person denounces racism and claims not to be a racist, the clearer it is, in critical race theory, that he or she is a racist. It should be obvious how this deceptive argument might be persuasive with young people in elementary school, high school, and even college who have not experienced much of the world and are taken in by this kind of argumentation from teachers or professors.
Wokeness and Reason
The denial of any role for reason or evidence appears to be at the very root of Marxism, postmodernism, CRT, and “wokeness.”
It is both stunning and appalling that critical race theory, a belief system that denies the values that have come down to us from the Enlightenment, can gain ground in 21st-century America. The pessimistic view is that societies, even those well-educated and culturally advanced, sometimes spin out of control over ideas that in retrospect seem lunatic. That happened in Germany in the last century. The support for unreason today in the academy, among university students, and in media such as the New York Times is a truly bad sign.
On the other hand, most Americans are not yet aware of what is happening among the elites and the threat it ultimately poses to democracy. When they realize what is being taught to their children, by large corporations to their staffs, or to the federal workforce, there could well be the kind of reaction that prompted Trump’s executive order. Until then, it remains a hope.
The US should use performance-based contracting tied to reducing recidivism.
President Biden’s executive order calling for the eventual elimination of the use of private prisons by the federal Bureau of Prisons (BOP) serves as a hasty and misguided attempt to satisfy a political impulse without actually improving federal correctional services.
In fact, the new executive order could make conditions in prisons worse for inmates and staff. The Biden executive order repeats many of the same flawed arguments former President Barack Obama’s then-Assistant Attorney General Sally Yates made in an August 2016 memothat coincided with the release of an Office of the Inspector General (OIG) report. At that time Yates said:
“Private prisons … simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department‘s Office of the lnspector General, they do not maintain the same level of safety and security. The rehabilitative services that the Bureau provides, such as educational programs and job training, have proved difficult to replicate and outsource—and these services are essential to reducing recidivism and improving public safety.”
The biggest sticking point of the Yates memo was the allegation that private prisons in the Bureau of Prisons perform poorly when compared to their BOP-operated counterparts. This allegation does not have a basis in the OIG report itself, but it is nonetheless parroted by the new Biden administration’s EO, which says:
“(A)s the Department of Justice’s Office of Inspector General found in 2016, privately operated criminal detention facilities do not maintain the same levels of safety and security for people in the Federal criminal justice system or for correctional staff.”
As I noted in a report released in 2017, despite Yates’, and now Biden’s strong claims, there’s no evidence, that privately-run BOP prisons are less safe or provide inferior service compared to the BOP’s “in-house” prisons. In fact, the BOP warned against making such comparisons in a response to an earlier draft of the August 2016 OIG report:
“(W)e continue to caution against drawing comparisons of contract prisons to BOP operated facilities as the different nature of the inmate populations and programs offered in each facility limit such comparisons.”
Despite this clear warning from the BOP itself saying not to use the August 2016 OIG report to compare public and private prisons against each other due to the numerous factors that make such comparisons untenable, many continue to do so.
When sample groups share similar characteristics, comparisons tend to be more valid. But the Bureau of Prisons overwhelmingly puts foreign prisoners (mostly from Mexico and a few Central American countries) in privately-run BOP prisons, while the BOP-operated prisons are overwhelmingly filled with Americans. While the distinction may seem subtle, communicating with a mostly non-English speaking population presents additional costs and challenges for the operation of those prisons. Communication with a mostly Spanish-speaking population requires additional staff resources that add costs to operating the facilities. In addition to the communication barriers, there can be other problems related to the prisons having a lack of background information on the inmates themselves. Having a clearer criminal background of inmate populations helps corrections officers plan housing arrangements to minimize potential conflicts. When a prison knows of potential affiliations with hate groups, gang affiliations, and the like, it is available to better inform such decisions.
This segregated approach also can affect the safety of inmates and staff. The placement of inmates in cells is usually coordinated to avoid potential violent confrontations, so confining one large subset of inmates to one type of prison makes that sort of planning more difficult. The authors of the OIG report make those points pretty clearly:
“We acknowledge that inmates from different countries or who are incarcerated in various geographical regions may have different cultures, behaviors, and communication methods. The BOP stated that incidents in any prison are usually a result of a conflict of cultures, misinterpreting behaviors, or failing to communicate well. One difference within a prison housing a high percentage of non-U.S. citizens is the potential number of different languages and, within languages, different dialects. Without the BOP conducting an in-depth study into the influence of such demographic factors on prison incidents, it would not be possible to determine their impact.”
One way to better ensure safety, equality, and facilitate comparisons between the BOP’s public and private prisons would be to integrate the native Spanish-speaking population into all BOP facilities, so all BOP prisons would have a similar mix of native English and Spanish speakers. The added diversity would force BOP-run prisons to account for serving an entirely new set of inmates in terms of background, while the added ability to separate and strategically place inmates could help to minimize potentially violent incidents in all facilities. Providing services for inmates to a meaningful level of satisfaction is difficult for any prison operator, and it is made even more difficult when language barriers are introduced. Equalizing populations would also force the Bureau of Prisons to undertake those challenges itself, which it will eventually have to do anyway if private prisons are eliminated in the BOP.
Another problem that prevents valid comparisons between public and private prisons in the BOP is the lack of assurance that the two prison types have equal levels of security and monitoring procedures. While both public and private BOP prisons have dedicated resources to monitoring the operations and safety of their facilities, the Bureau of Prisons serving as both operator and monitor in its own facilities raises concerns about the comparability of the operational and monitoring regimes of public and private prisons in the BOP.
The August 2016 report does note that a greater number of security incidents per capita in privately-run BOP prisons, but in addition to communication barriers and other factors that make ensuring safety and security more difficult in contract prisons, there is reason to believe that publicly-run BOP prisons also have problems implementing staff policies and changes related to safety. Far from conclusive and limited to contraband interdiction, the BOP OIG’s own findings at least suggest a culture of distrust exists between staff and management in BOP-operated prisons, hindering opportunities to accurately assess and identify problems, much less improve and innovate practices and procedures in response to those problems.
Another OIG report produced in June 2016, which focused mostly on conducting staff contraband searches in BOP-operated prisons, noted that searching BOP staff at recommended levels has long been a struggle. The June 2016 report notes the BOP was asked to implement recommended staff search procedure changes in 2006, calling on all facilities to randomly search at least five percent of their staff on a monthly basis, only for the BOP prison guard union to stall and avoid implementation. After nearly a decade, it has implemented the policy inadequately and unevenly. The contraband interdiction report notes only one percent of employee shifts had received any pat-down searches between January and June of 2014, and the searches themselves did not follow established protocol for conducting proper searches (which should take two minutes per person, despite at least one search event lasting only a single minute).
While the BOP says that they were not finding contraband in the prisons they operate in-house, the OIG makes it clear that they doubt the validity of their self-reported claims:
“(I)n light of the BOP’s infrequent application of random pat search events and other related issues described in this report, the absence of contraband recoveries may not constitute an accurate performance measure.”
Since the contraband interdiction report’s time span coincides with the August 2016 report’s period of reporting incidents, the OIG seems to be saying that at least some of the contraband numbers reported from BOP-run prisons in their subsequent August report may be inaccurate. And the BOP’s in-house contraband interdiction efforts do not seem to be improving much. According to an OIG report from last year intended to map out the agency’s largest performance challenges, contraband is still a “pervasive problem” in BOP prisons. The report says that “5 of the 11 recommendations (from the 2016 contraband interdiction report) remain open, including those related to revising its contraband staff search policy and upgrading its security camera system.”
In contrast, the August 2016 OIG report’s authors do note that the relationship between BOP and private prison company staff (for the oversight and monitoring of contracts) is one that effectively works to improve conditions as problems are confronted:
“We determined that for each of the safety and security-related deficiencies that BOP onsite monitors identified during our study period, the contractor responded to the BOP and took corrective actions to ensure the prison was in compliance with policies and the contract.”
While one cannot conclude that guard searches are not an issue in privately-run BOP prisons, the OIG’s findings show that guard searches remain a big problem in the BOP’s publicly run prisons, despite over a decade of warnings and recommendations from the OIG to improve things. The August 2016 OIG report, in contrast, provides examples of how private BOP prisons changed procedures in immediate response to problems, including improving the interdiction of contraband as well as health care procedures, recordkeeping, and staffing procedures. None of these changes took contracted facilities a decade to implement fully.
The Biden executive order also creates problems on the training, educational and rehabilitation side of corrections. “We must ensure that our nation’s incarceration and correctional systems are prioritizing rehabilitation and redemption,” the order says.
The BOP itself is currently entered into over 150 contracts with private entities (businesses and nonprofits) for reentry services alone, with centers scattered all over the United States, mostly in or near medium-to-large cities (100,000+). Some of those firms are the same ones that operate reentry facilities, and a new anti-contracting would certainly undermine BOP’s goals on reentry.
Map of Reentry Centers Contracted By the Bureau of Prisons:
GEO and CoreCivic, two companies that manage federal prisons, alone combine for 17 contract facilities that accommodate around 13 percent of the BOP’s total capacity of roughly 9,800 inmates. The 2016 Yates memo chides private prison companies for preventing the reduction of inmate recidivism, even as the BOP continues to rely on these same companies for reentry services.
Prioritizing rehabilitation and redemption in the BOP would undoubtedly include finding the best reentry services and facilities for those transitioning back into society. Banning private prison companies from the equation only ensures that the BOP would be forced to eliminate some of the very arrangements it sees as providing the best answers to the difficult questions of preparing inmates for the final steps of returning to life as citizens.
Few question that prison systems in the United States need significant reforms and changes. Many are finally starting to come to the conclusion that the so-called tough-on-crime mentality has done more harm than good, including in terms of making conditions worse for inmates while in prison and subsequently after their release. Some of these failures have reached the point where federal consent decrees in multiple states have been filed in recent decades that cite prison conditions that violate our Constitution’s protections against cruel and unusual punishment.
But solutions to improving life inside and after prison have largely remained elusive to governments. Radical and innovative thinking will be needed to improve prison conditions to be more in line with best practices that have been demonstrated in Australia and New Zealandthrough effective use of performance-based contracting where private prison funding levels are tied to reducing recidivism.
A move toward a more rehabilitative and constructive incarceration experience requires policy changes that move away from the real driving factors of mass incarceration. After decades of courts, politicians, and prosecutors making incarceration harsher and lengthier, a growing consensus is moving toward a more rehabilitative approach that recognizes most inmates will eventually be released and reenter society.
New approaches focus on building inmates’ work and personal skills to help them avoid a return to prison. Innovative and competition-driven corrections services can help make that happen, and such a transformation requires departments of corrections that seek to find solutions wherever they emerge.
Getting prison operators and service providers the right incentives to work toward effective solutions should be the focus of the Bureau of Prisons and state departments of correction, regardless of whether the individuals’ responsible work for the government or private sector.
In the corrections space, reform should hinge on improving health and safety conditions as well as the availability of opportunities for inmates while in prison and after release. That is not what government-run prisons have delivered, and expecting that to change without competition from the private sector ignores how the present situation in corrections has played out for decades.
Given the BOP’s reliance on the private sector, a working relationship with private operators who provide effective rehabilitative and reentry services seems crucial. So let’s continue to develop ways to hold all prisons accountable to similar standards, no matter who runs them, and try to find what works best to ensure inmates and staff are kept in safe, secure environments that provide opportunities for those inmates to improve their lives behind bars and after their release. Looking to end private prisons in no way simplifies the difficult problems facing corrections, and the Biden administration’s proposed ban would, unfortunately, work to make solutions more elusive.
An executive order on LGBT rights signed by President Joe Biden on Wednesday signals the start of a bitter cultural clash that will loom large over his presidency.
Biden’s directive broaches almost every aspect of domestic policy, from housing to refugee resettlement to transgender student athletes. The order requires every federal agency to make clear that civil rights laws banning sex discrimination also ban discrimination based on sexual orientation or gender identity, citing the Supreme Court’s landmark gay rights ruling in June 2020.
Many changes resulting from Biden’s order, like a ban on anti-gay discrimination in renting, are unlikely to cause controversy. Other mandates will accelerate long-simmering cultural disputes, like those allowing trans students to participate in women’s sports or use the bathrooms and locker rooms of their choice. While Biden says his focus is fixed on the coronavirus pandemic and economic stimulus, cultural conflict is poised to play a defining role in the coming years of his presidency.
The Supreme Court decision in Bostock v. Clayton County is the basis for Biden’s directive. Title VII of the Civil Rights Act bans discrimination “because of sex” in employment. The question for the justices was whether that sex discrimination ban also covers sexual orientation and gender identity. A six-justice majority led by Justice Neil Gorsuch said it does. Gorsuch wrote that it is “impossible” to discriminate against LGBT workers without discriminating in some way “because of sex.”
Biden’s order says the logic of Bostock—that discrimination against LGBT people is necessarily discrimination “because of sex”—should apply to every other federal law and regulation that bans sex-based discrimination. The order thus requires any agency that enforces statutes banning sex discrimination to likewise prohibit bias against LGBT people.
For example, the Department of Housing and Urban Development administers a sex non-discrimination law called the Fair Housing Act. Under Biden’s order, HUD will enforce that law to ban LGBT bias when selling homes or renting apartments. The Immigration and Nationality Act likewise promises assistance to refugees regardless of sex, meaning Biden’s order also guarantees protections for gay and transgender migrants.
All told, the list of forthcoming changes is a long one.
“Biden’s executive order is the most substantive, wide-ranging executive order concerning sexual orientation and gender identity ever issued by a United States president,” said Alphonso David, president of the Human Rights Campaign. “By fully implementing the Supreme Court’s historic ruling in Bostock, the federal government will enforce federal law to protect LGBTQ people from discrimination in employment, health care, housing, and education, and other key areas of life.”
While many new policies will likely enjoy broad support, some may inflame the hottest cultural disputes. Biden’s Education Department will be a flashpoint.
The Education Department administers Title IX, which bans sex discrimination in federally-funded schools. The department, consistent with Biden’s order, will make rules requiring any school that takes federal dollars to allow trans students access to their preferred bathrooms and locker rooms. Another rule granting trans-women access to women’s sports will almost certainly be promulgated. The order expressly contemplates those steps.
“Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love. Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports,” the order reads.
Critics say those moves are tantamount to repealing Title IX, which was passed to put women on equal-footing with men in athletics.
“This isn’t equality, and it isn’t progress. President Biden’s call for ‘unity’ falls flat when he seeks to hold those receiving federal funds hostage if they don’t do tremendous damage to the rights, opportunities, and dignity of women and girls,” said Alliance Defending Freedom lawyer Christiana Holcomb.
The Trump administration took the same view, arguing Bostock shouldn’t apply to Title IX because Title IX serves a different and unique purpose—protecting girls and ensuring equal athletic opportunities for women. Forcing women’s athletic leagues to accept transgender competitors would defeat the law’s purpose, the Trump Education Department argued in a 2020 memorandum.
In the months following Bostock, two federal appeals courts sided with transgender students challenging bathroom access policies, an early indication that many courts are ready to apply the case to education.
Implementing Biden’s order will take time. In the short term, agencies will issue advisory notices to forewarn employees or industry leaders about the new enforcement practices. That will give schools, banks, and employers time to implement changes on their own without formal government action.
Agencies will then move to enshrine the new policy in an official rule. Crafting rules is time-consuming. Agencies must give adequate notice of a change and allow a public comment period. Settling the finer points is likewise slow work, often involving officials from different parts of the government. For example, former education secretary Betsy DeVos rescinded an Obama-era “Dear Colleague” letter on campus sexual assault in 2017, but a long-promised rule setting due-process requirements for campus tribunals wasn’t finalized until 2020.
And whatever changes are achieved may be stymied in court. Advocacy groups and Republican attorneys general are sure to file legal challenges to the new rules. It’s not clear if they’ll ask judges to halt Biden’s policies on a national basis. Conservatives castigated so-called nationwide injunctions during the Trump administration, though with Biden in the White House they may be back in style.
Justice Samuel Alito foresaw a long slog in his wide-ranging 54-page dissent in Bostock.
“Although the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long,” Alito wrote. “The entire federal judiciary will be mired for years in disputes about the reach of the Court’s reasoning.”
You cannot have your cake and eat it, too. It is a tale as old as time. But apparently, with its latest “Most Favored Nation” executive order on drug pricing, the Trump administration has stumbled upon a solution to this conundrum.
Or so they would have you believe.
The entire phenomenon centers around the hotly contested Affordable Care Act (ACA), or Obamacare. On one hand, the Trump administration is litigating before the Supreme Court in favor of the entire law being struck down as unconstitutional. On the other hand, the administration would like to use an obscure provision within the very same law in order to implement its new drug pricing mandate.
Can you see the problem?
Before we can even discuss the merits of price controls and their implications for our healthcare system, simple logic should have dismissed this latest action when it was first proposed. If you believe a law to be unconstitutional and invalid, how can you then use that law to carry out a particular policy agenda? The numbers simply do not lie. And perhaps this is why this particular executive order stayed under lock and key until September 13th—nearly two months between its signing and when it officially went into effect.
If you still are not sold, that is OK. After all, the Supreme Court could very well uphold the ACA as constitutional. If that happens, it would be easy to assume that President Trump’s executive order would then be in the clear. Fortunately, these assumptions are far from accurate and there is plenty of policy and precedent standing in stark opposition to this executive action.
A “most favored nation” pricing model is an extreme form of international price indexing (IPI), where price caps on certain drugs are put in place based on an average price obtained from a select group of other countries. These arbitrary price controls would have devasting effects on our access to groundbreaking drugs. The U.S. would be basing its drug market off of Europe, where socialized, restricted medicine is the norm. And such an approach exceeds the statutory authority of the executive branch. Under basic constitutional separation-of-powers principles, “sweeping” and “very dramatic”—the president’s own words—changes to major federal programs must be authorized by Congress. To date, Congress has flatly rejected any form of international price controls. Period.
The executive branch hopes to carry out its ambitious plan through an obscure clause in the Affordable Care Act, whereby modest authorization for testing “pilot projects” in underserved populations is authorized. According to President Trump, however, this new order contains “the most far-reaching prescription drug reforms ever issued.” But an unprecedented new program that will disrupt the entire healthcare sector is a far cry from a modest “pilot project.”
Simply put, the authority to execute this administration’s latest drug pricing mandate simply is not there. The same administration is fighting to strike down the very law it is using for this order. Congress has already plainly rejected the international pricing model. And the ACA itself does not grant the statutory authority for such a measure in the first place.
Until recently, this administration had a good record on healthcare—fighting to protect American innovation and promoting measures such as rebate reform and price transparency. Why, then, reverse this approach in favor of dangerous and unconstitutional executive actions?
President Trump is at his best when he is fighting for America, and he must return to supporting our pharmaceutical innovators that will get us through the current health crisis. We must stop “global freeloading” off of American innovation and negotiate more favorable deals with foreign governments. We need them to contribute their fair share toward research and development costs for new treatments and vaccines that are changing the world. These are solutions that will lower drug prices.
The president is a dealmaker, and that is exactly what we need during COVID-19. America must leave the cake outside and return to the head of the table.
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.
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.
Photo by: Matt Rourke
FILE – This April 26, 2017, file photo shows the Twitter app icon on a mobile phone in Philadelphia. Twenty-six words tucked into a 1996 law overhauling telecommunications have allowed companies like Facebook, Twitter and Google to grow into the giants they are today. Those are the words President Donald Trump challenged in an executive order Thursday, May 28, 2020 one that would strip those protections if those companies engaged in editorial decisions like, for instance, adding a fact-check warning to one of Trump’s tweets. (AP Photo/Matt Rourke, File)
On Thursday, President Trump issued an executive order calling for new regulations under Section 230 of the 1996 Communications Decency Act that, he says, will prevent Big-Tech platforms from continuing what many believe is a pattern of discrimination against conservatives.
We’re not sure that’s the case — just as we’re not sure that much, even all of it will survive the inevitable challenges it will face in the courts. What we do know is that his effort to change the interpretation of Section 230 of the 1996 Communications Decency Act, just like his call for reform of libel laws during the 2016 campaign, should spark a national conversation about free speech that would be healthy for our republic.
Instead, the whole thing will ground down in pitched rhetoric passing back and forth between the president’s supporters and those who believe he is single-handedly responsible for the destruction of the nation, especially its core values and its reputation for having a civilized political process.
It seems clear Twitter’s Jack Dorsey, by allowing the presidential tweets to be footnoted, he’s acting like an editor, commenting on posts and making decisions about what other people can see. On its face, this would seem to put his platform outside the safe harbor Section 230 establishes to protect tech companies from being held liable in civil suits for things posted by platform users.
“In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to handpick the speech that Americans may access and convey on the internet,” the order says. “This practice is fundamentally un-American and anti-democratic. When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power. They cease functioning as passive bulletin boards, and ought to be viewed and treated as content creators.”
That ought to be a nifty jumping-off point for a robust discussion of speech and how the protections provided by the First Amendment factor in — or don’t — to the part of the national conversation carried on in cyberspace. Legal scholars can point to numerous decisions upholding the idea the government can not infringe on speech, defined broadly to included campaign contributions, flag burning, pornography, as well as the written and spoken word when it occurs in the public square. That’s clear and has shaped a culture whose values generally extend into private space.
But what if the “public square,” however one defines it, now exists predominantly in a place that is privately owned. It’s worth discussing whether information carriers and conveyors like Twitter, YouTube, Facebook and Google have a responsibility to keep the space they own and operate open to all points of view, including the ones with which they disagree as well as the ones they may find abhorrent?
A strict reading of the U.S. Constitution would say as a matter of law, they don’t. But what about, to borrow a phrase so popular these days with those who would regulate just about every other aspect of the U.S. economy, their corporate social responsibility?
Further, the potential removal of Section 230 protections from any platform — which, as a matter of full disclosure, we also enjoy concerning the comments posted by readers of this our anything else we publish but not for the things we publish online or in print — is an opportunity for a vigorous discussion of the costs imposed on speech by the threat someone might get sued.
On the one hand, as we’ve seen an awful lot in the Trump era, people on both sides of the aisle have been telling outrageous lies and fabrications, made egregious exaggerations, and sullied the reputations of political leaders in both parties, journalists and entrepreneurs.
This had added an unpleasantly coarse overtone to the national debate yet, because of the way charges of libel, slander and defamation are viewed by the courts based on the existing case law, the victims of these slurs are often left without recourse and unable to recoup damages, if any. Tort reform is long overdue, we have long held, but some fresh eyes on this issue might help restore some sanity to a news business, forgive our obvious bias, driven by breaking television segments rather than the more thoughtful approach often taken by print media.
What the president has ordered is likely more a tempest in a teapot than a challenge to the constitutional order. But it raises issues worth talking about, intensely and for a long time in search of a new consensus concerning the role Big Tech plays in conveying information to the American people. Facebook’s Mark Zuckerberg has it right when he says these platforms shouldn’t be “arbiters of truth.” That doesn’t mean we shouldn’t have a conversation about what they should be.
By David Harsanyi • The Federalist
Pointing out hypocrisy can be more than a political gotcha. In the case of President Donald Trump’s emergency declaration on the southern border, it’s a useful way to highlight the fact that Democrats who are attempting to regain power have not only refused to live by the rules they’ve set for the opposition, they’re also threatening to break those rules in even more expansive ways in the future.
As soon as Trump declared a national emergency to fund the building of a wall on the Mexico-U.S. border—a clear attempt to circumvent the legislative branch and one that I hope leads to the Supreme Court overturning the abused National Emergencies Act (NEA)—the first thing Democrats did was promise to use the law for their own partisan ends, immediately exposing any supposed apprehensions about executive overreach as a fiction.
“Once we beat Donald Trump, we promise the word and spirit of the Constitution will be upheld, because the proper checks and balances are far more important than any fleeting political gain” said not a single Democrat ever. Instead, Kamala Harris, Cory Booker, Elizabeth Warren, Michael Bennet, Chris Murphy, and a slew of others senators threatened to use the same emergency powers for “real” crises like climate change and gun violence. Because it’s not the abuse of power they find problematic, but the objectives Trump wants to use that power for that bother them. Continue reading
By Jeremy Carl • National Review
As one would expect from a president who is a master of political theater, the backdrop for this week’s announcement of his executive order “Promoting Energy Independence and Economic Growth” was dramatic: President Trump, with twelve all-American-looking coal-miners flanking him, announced that he was undoing a number of President Obama’s climate policies, while announcing a number of pro-energy-development ones. As is typical with this president, though, the media were so wrapped up in the theater that the substance of the order was almost entirely buried in many stories.
But while the green lobby was rending its garments and proclaiming the end of the world, more astute observers noticed what Trump’s executive order didn’t do — which was arguably more important than what it did.
Notably, the president did not (1) withdraw the U.S. from the Paris Climate Agreement or (2) start a process to repeal the EPA’s endangerment finding on carbon emissions, which underlies the Obama administration’s Clean Power Plan. Continue reading
By The Federalist Staff
Federalist senior contributor and senior fellow in constitutional studies at the Cato Institute Ilya Shapiro joined Fox News’s “Special Report with Brett Baier” on Monday to discuss the gloomy future of President Obama’s legacy. Continue reading
by Elizabeth Harrington • Washington Free Beacon
The cost to taxpayers for just nine executive orders signed by President Barack Obama is $31 billion, according to a new report.
The American Action Forum found that Obama’s “pen and phone” strategy of going around Congress has incurred major costs for Americans for reasons including the delay of provisions in Obamacare and imposing new gun control measures. The group analyzed the most expensive executive orders and administrative action taken by the president for its analysis.
“‘I’ve got a pen and I’ve got a phone … I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball.’ That was President Obama in 2014 pledging to use executive action to implement his policy priorities,” writes Sam Batkins, director of regulatory policy at the American Action Forum, a center-right policy institute. “The American people elected Republican majorities in both the House and the Senate and President Obama responded through regulation, rather than working with Congress on legislation.” Continue reading
by Jonathan S. Tobin • Commentary
When conservatives protested President Obama’s attempt to go around the Constitution and rule by executive orders rather than with the consent of Congress, his defenders had a ready answer. While they insisted that Obama’s fiat granting amnesty to five million illegal immigrants did not exceed his authority, they also countered by saying that the president had actually issued far fewer such executive orders than that of President Bush. But, as USA Today noted last week, focusing only on executive orders while ignoring the far more numerous executive memoranda issued by this administration that have the same effect as law, the press and the public have vastly underestimated the extent of how far he has stretched the boundaries of executive power. If anything, this president’s effort to create a one-man government may have gone farther than we thought. Continue reading
President Obama has issued a form of executive action known as the presidential memorandum more often than any other president in history — using it to take unilateral action even as he has signed fewer executive orders.
by Gregory Korte • USA Today
President Obama has issued a form of executive action known as the presidential memorandum more often than any other president in history — using it to take unilateral action even as he has signed fewer executive orders.
When these two forms of directives are taken together, Obama is on track to take more high-level executive actions than any president since Harry Truman battled the “Do Nothing Congress” almost seven decades ago, according to a USA TODAY review of presidential documents. Continue reading
by Terry Eastland • The Weekly Standard
With his aggressive executive action on immigration, President Obama has struck a constitutional nerve in the body politic. The first lawsuit challenging the president’s action was filed last week by a coalition of 18 states led by Texas. Oklahoma is about to file, and other states may do so as well.
As for the two houses of Congress, House Judiciary Committee chairman Robert Goodlatte told The Weekly Standard that the House “should litigate the issue.” Probably a majority of his colleagues agree. Goodlatte expects that soon after the new Congress is sworn in, the House will authorize the filing of a complaint that the new Republican Senate will then vote to join. Continue reading
Obama’s hubristic promises have been followed by a total discrediting of his ideology.
by Victor Davis Hanson • National Review Online
Barack Obama will end his tenure with the ruin of Hope and Change. The implosion was brought about not by the marginalization of Hope and Change, but by the power of the U.S. government to reify the slogan in a way we have not seen since the 1930s.
Survey the wreckage.
The hope-and-change therapeutic approach to foreign relations ended logically with historic cuts in defense, lectures about American culpability, pink lines and the end of Syria, farcical Iranian talks, in Libya the short trip from “leading from behind” to Benghazi, the self-induced suicide of Iraq, the empowerment of Putin, a pivot to Asia that invited ridicule, and the charade of a war against ISIS. Continue reading
By Joseph Curl • The Washington Times
In the weeks after voters cast a vote of no confidence on President Obama and his fellow Democrats, the president has gone on a scorched-earth campaign, unilaterally declaring amnesty for some 5 million illegal aliens, firing the only Republican in his Cabinet and rolling out a new federal rule dubbed “the most expensive regulation ever.”
Yes, this is the real Barack Obama, the one Americans cast their votes against Nov. 4 in an election in which the president had declared his agenda most definitely “on the ballot.” Continue reading