Immigration

CBO: Amnesty in the Reconciliation Bill Would Impose Major Long-Term Costs

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The Capitol Building viewed from the Washington Mall in Washington D.C., August 5, 2021 (Brent Buterbaugh/National Review)

Although the Senate parliamentarian ruled back in September that the Democrats’ proposed amnesty for 8 million illegal immigrants could not be included in the Senate’s budget-reconciliation process, Democrats are trying again with a smaller-scale amnesty that recently passed in the House as part of its own reconciliation bill. This version would offer “parole” (lawful status) to the roughly 6.5 million illegal immigrants who arrived before 2011. Theoretically, the parole would last only five to ten years, but these amnesty recipients will probably hold on to their lawful status indefinitely, given the political pressures that have sustained other allegedly time-limited reprieves such as TPS and DACA.

Like the proposal rejected in September, this new amnesty would have wide-ranging legal, social, and economic effects that go far beyond the budgetary matters on which the reconciliation process is supposed to be focused. The Senate parliamentarian probably will (and should) rule the proposal out of order.

But regardless of how the parliamentarian rules, amnesty in one form or another will inevitably be proposed again, so it’s instructive to examine how the CBO has scored this latest proposal. It estimates that the net fiscal impact over ten years will be $124 billion. As I had been warning, however, a ten-year time horizon excludes most of the entitlement costs associated with amnesty. Illegal immigrants generally cannot collect Social Security and Medicare benefits, but many still pay taxes into the system. These taxes are essentially free contributions to our entitlement programs. Once illegal immigrants receive amnesty and become eligible for benefits, however, the free contributions turn into IOUs from taxpayers. Earlier this year, I estimated that the cost of amnesty to Social Security and the hospital insurance portion of Medicare would come to $1 trillion in present value, yet almost all of this cost would occur beyond the CBO’s usual ten-year window.

I’m pleased to see that the CBO has partially addressed this problem. In its score of the bill, the CBO notes that the immigration provisions “would have long-term budgetary effects that are noticeably greater than those in the first decade,” and so it extends its budgetary estimates for immigration by another ten years. On top of the $124 billion in the first ten years, amnesty would increase the deficit by $359 billion in the second decade, “and by larger amounts in the subsequent decade.” So the total cost is $483 billion over the first 20 years, with an even larger cost coming after that. Although the CBO’s methods here are characteristically hidden, it’s likely that the escalating costs are due to entitlement spending.

I would still prefer direct calculations of the impact on Social Security and Medicare, similar to the long-term analyses published by the trustees of those programs, but the CBO’s extended budget window is welcome, and I hope to see it applied again to future immigration proposals.

World

We Can’t Let Genocide Get in the Way of a Good Investment Opportunity, Right?

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Ray Dalio attends the China Development Forum in Beijing, China, March 23, 2019. (Thomas Peter/Reuters)

There is nothing in Ray Dalio’s defense of investing in China that would not also apply to U.S. investments in Nazi Germany in the 1930s.

Then, as now, not every U.S. investor can “be an expert in those types of things.”

Then, as now, the United States had its own controversies and flaws and failures to live up to its own professed values; Dalio asked, “should I not invest in the United States because our own human rights issues and other things?”

Then, as now, it was legal for Americans to invest in Nazi Germany — until 1941, in fact — and so businessmen could “leave it to the government to make those decisions.”

No doubt the Nazis also saw the state as “an extension of the family” and “as a top-down country, what they are doing is they behave like a strict parent.” Indeed, a strict abusive parent.

I realize comparisons to Nazi Germany can often be overwrought and inappropriate, but it does seem to fit, since that was the last time a genocide-minded government hosted the Olympics.

White House

Nobody Wants to Work for Kamala Harris

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Vice President Kamala Harris delivers remarks during the official launch of the CDC Southeast Asia Regional Office in Hanoi, Vietnam, August, 25, 2021. (Evelyn Hockstein/Pool via Reuters)

We’re less than a year into Kamala Harris’s term as vice president, and it is already a labor just to collect all the ways in which she is bad at her job and the target of sniping even from her own administration and her own ideological allies — see, for example, here from Charlie Cooke, here from Jim Geraghty, here from Michael Brendan Dougherty, and here, here, here, and here from my own writings, all compiling those failures. Democratic pundits are already running through the stages of denial and bargaining. Maybe she will agree to a Supreme Court appointment to get her off the ticket! Maybe if Biden can’t run again, we can get Pete Buttigieg to be her running mate or set him up to challenge her in the primary!

Meanwhile, the people who are actually stuck working for Harris are tiring of trying to spin this as a successful vice presidency, and are voting with their feet, now including her most prominent staffer:

Symone Sanders, the senior adviser and chief spokesperson for Vice President Kamala Harris, is expected to leave the White House at the end of the year. . . . It was not immediately clear where Sanders is heading next or when she will be leaving the vice president’s office. Sanders is the highest profile exit and the second high-profile one from the Harris team in the last month. Ashley Etienne, Harris’ communications director, is also set to depart in the coming weeks. . . . One of the most publicly recognizable individuals in the Biden administration, Sanders transitioned to Harris’ vice presidential team after serving as a Biden campaign senior adviser during the 2020 election.

Sanders has been a recognizable public face for Democrats since she was press secretary for the 2016 presidential campaign of Bernie Sanders (no relation), then switched from Bernie to Joe Biden in 2020. Biden, of course, will turn 82 in 2024, and while no president has declined to seek another term after just four years on the job since Rutherford B. Hayes in 1880, Biden’s age makes it a very real possibility. If Harris was likely to succeed him as the next president — becoming the first woman ever to hold the job — it would be enormously desirable to be her press secretary now, and thus be set up to play a major role in her presidency. The fact that Sanders is bailing out a little over ten months into the job tells you quite a lot about her assessment of the likely trajectory of Kamala Harris’s career.

Elections

A Pennsylvania Senate Ad against Biden’s Spending Plan

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The U.S. Ambassador to Denmark, Carla Sands, poses at the U.S. election party at the National Museum in Copenhagen, Denmark, November 3, 2020. (Martin Sylvest/Ritzau Scanpix via Reuters)

As I noted on Tuesday, the crowded Republican field in the Pennsylvania Senate race somehow has no candidates who have ever been elected to public office. It now has a major celebrity candidate in Mehmet Oz. Republicans ought to give Dr. Oz a hearing, given the electoral assets he brings to the table, but it would be foolhardy to let him walk to a nomination without proving himself against a serious primary test.

The one experienced public servant in the race, former ambassador Carla Sands, just dropped a $1 million TV buy behind an ad attacking Joe Biden’s Build Back Better spending plan. It’s perhaps the first major ad campaign, at least in a big swing state, by a Republican candidate taking direct aim at Biden’s plan, and while the ad is a simple one, it is a reminder: Sometimes, the best way to stand out in a primary race is not by attacking your primary opponents but by previewing your willingness to go on offense against the other party.

Law & the Courts

‘End Roe’ Issue Makes Appearance at Dobbs Demonstrations

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National Review’s “End Roe” special issue was seen around the Supreme Court building on Wednesday as justices heard oral arguments in Dobbs v. Jackson Women’s Health.

A pro-life demonstrator holds an issue of National Review‘sEnd Roe‘ ahead of arguments in the Mississippi abortion case Dobbs v. Jackson Women’s Health, in Washington, D.C., December 1, 2021.
Pro-life demonstrators hold issues of National Review‘sEnd Roe‘ ahead of arguments in the Mississippi abortion case Dobbs v. Jackson Women’s Health, in Washington, D.C., December 1, 2021.
Pro-life demonstrators hold issues of National Review‘s ‘End Roe‘ ahead of arguments in the Mississippi abortion case Dobbs v. Jackson Women’s Health, in Washington, D.C., December 1, 2021.
Pro-life demonstrators hold issues of National Review‘s ‘End Roe‘ ahead of arguments in the Mississippi abortion case Dobbs v. Jackson Women’s Health, in Washington, D.C., December 1, 2021.
A pro-life demonstrator holds an issue of National Review‘s ‘End Roe‘ outside the Supreme Court in Washington, D.C., December 1, 2021.
Pro-life demonstrators hold signs ahead of arguments in the Mississippi abortion case Dobbs v. Jackson Women’s Health, in Washington, D.C., December 1, 2021.
Politics & Policy

George Washington on Respecting the Constitution as Written

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Statue of George Washington inside the Virginia State Capitol building in Richmond, Va., February 8, 2019. (Jay Paul/Reuters)

George Washington’s Farewell Address is one of the most famous speeches (actually, an address published in the newspapers) in American history. It is usually remembered for its warnings against foreign entanglements, against descent into partisan faction, and against the loss of morality, virtue, and their grounding in religion. We do not think so often of Washington’s views on the Constitution, but he was, after all, the presiding officer of the Constitutional Convention, the document’s first signer, and the man who gave form to many of its powers. Washington took the written law seriously: He once withdrew a Supreme Court nomination after it was pointed out to him that his nominee had voted for the creation of the Supreme Court and was thus ineligible for the job until there was an intervening election. He also took seriously the norms of behavior that allow the written law to prevail; he set the norm of presidents leaving office after two terms, and not until the 1940s was that norm violated, requiring a constitutional amendment to enforce it.

In the Farewell Address, Washington first urged the American people to respect and obey their constitution and oppose any effort to undermine the execution of federal law:

You have improved upon your first essay [the Articles of Confederation], by the adoption of a constitution of government better calculated than your former for an intimate union, and for the efficacious management of your common concerns. This government, the offspring of our own choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers, uniting security with energy, and containing within itself a provision for its own amendment, has a just claim to your confidence and your support. Respect for its authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true liberty. The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government. All obstructions to the execution of the laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency.

He moved on to explain that changes to the Constitution should be undertaken only with the greatest of care and the deepest respect for experience and tradition:

Towards the preservation of your government, and the permanency of your present happy state, it is requisite, not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretexts. One method of assault may be to effect, in the forms of the Constitution, alterations which will impair the energy of the system, and thus to undermine what cannot be directly overthrown. In all the changes to which you may be invited, remember that time and habit are at least as necessary to fix the true character of governments as of other human institutions; that experience is the surest standard by which to test the real tendency of the existing constitution of a country; that facility in changes, upon the credit of mere hypothesis and opinion, exposes to perpetual change, from the endless variety of hypothesis and opinion; and remember, especially, that for the efficient management of your common interests, in a country so extensive as ours, a government of as much vigor as is consistent with the perfect security of liberty is indispensable.

This brought Washington to the conclusion of his discussion of the Constitution, in which he warned against disturbing the separation of powers and other features of the constitutional order by temporary emergencies or any other method besides an amendment approved by the people:

It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.

Many of the words here were those of Alexander Hamilton, who drafted the address, as well as perhaps those of James Madison, who submitted an earlier draft. But the final draft reflected Washington’s own views. Washington recognized the need for changes; in his lifetime, he had been a leader both of the Revolution against British rule and the replacement of the Articles of Confederation. He acknowledged that innovations might sometimes be for a good purpose in the short term. And he repeatedly endorsed the amendment process. But he intended his words on this topic, as on others, as a standing warning to posterity: The Constitution was his generation’s gift to future Americans, and they should never let anyone else change it except by their own participation in amending it.

Politics & Policy

Joe Biden’s Faulty Memory about Israel

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President Joe Biden departs the White House in Washington, D.C., October 5, 2021. (Kevin Lamarque/Reuters)

President Biden, speaking during a menorah lighting in celebration of Hanukkah yesterday:

I was saying to a couple of younger members of my staff, before I came over, about the many times I’ve been to Israel.  I said — and then, all of a sudden, I realized, “God, you’re getting old, Biden.”  (Laughter.)

I have known every — every prime minister well since Golda Meir, including Golda Meir.  (Applause.)  And during the Six-Day War, I had an opportunity to — she invited me to come over because I was going to be the liaison between she and the Egyptians about the Suez, and so on and so forth.

Biden did indeed meet Golda Meir in 1973 — six years after the Six Day War — but that is . . . not how the Israelis remember that meeting, at least according to a contemporaneous classified Israeli memo from that time:

Biden warned that Israel’s actions in the territories it had captured during the Six Day War, including the West Bank and the Gaza Strip, were leading to “creeping annexation.”

Since he believed Israel was militarily dominant in the region, he suggested the Jewish state might initiate a first step for peace through unilateral withdrawals from areas with no strategic importance.

The official said Biden criticized the Nixon administration for being “dragged by Israel,” complaining that it was impossible to have a real debate in the Senate about the Middle East as senators were fearful of saying things unpopular with Jewish voters.

Meir rejected Biden’s call for unilateral steps, launching into a speech about the region and its problems (possibly the spiel Biden alluded to in his own comments years later).

The official added his own personal impressions regarding the young senator at the bottom of the document, saying Biden was full of respect toward the Israeli leader and repeatedly said he had come to learn, “and yet while speaking displayed a fervor and made comments that signaled his lack of diplomatic experience.”

Joe Biden may have thought he was going to be the liaison between Meir and the Egyptians about the Suez, but there’s no indication Meir saw Biden as her liaison.

Law & the Courts

Did Jussie Smollett Get What He Wanted?

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Jussie Smollett arrives at court on the first full day of his trial for six counts of disorderly conduct on suspicion of making false reports to police, in Chicago, Ill., November 30, 2021. (Kamil Krzaczynski/Reuters)

Oscar Wilde once said that “there is only one thing in life worse than being talked about, and that is not being talked about.” Perhaps that is also the view of Jussie Smollett, who allegedly paid two brothers, Abimbola and Olabinjo Osundario, $3,500 to stage a racist and homophobic attack in January 2019.

The story Smollett told the police had a lot of holes. Not only were the perpetrators black men — a departure from Smollett’s original claim that at least one had been white — but, when tracked down, they told the police that Smollett had paid them to stage the attack. In his jury trial this week, Smollett is facing six counts of felony disorderly conduct for filing a false report.

No matter how the trial turns out, at least Jussie Smollett is now much more famous than he was in 2019.

Law & the Courts

‘Roe’ v. Reality

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Abortion supporters and pro-life advocates demonstrate on the anniversary of the Supreme Court’s 1973 Roe v. Wade decision, Washington, D.C., January 24, 2011. (Jim Young/Reuters)

On the Economist’s “Intelligence” podcast, one of that venerable newspaper’s contributors described Justice Amy Coney Barrett as indicating by her questions that she does not “believe that a constitutional right to abortion is justified or needed.”

That may be true. But there is a prior question here that needs to be addressed — not whether there should be a constitutional right to abortion but whether there is one. The question is not whether such a right is justified or needed but whether it exists as a matter of law.

The contention of Roe critics is not necessarily or not exclusively that abortion is a great evil (it is a great evil) but that Roe is an illegitimate decision, having no actual basis in the Constitution. Illegitimate precedent gets no deference — that is why Plessy is no longer the law of the land. That Roe is an abuse of judicial power is something that honest analysts admit, including honest advocates of abortion rights. The question of whether Roe is legitimate does not depend on your view of abortion as such.

If abortion-rights activists believe there should be a right to abortion in the Constitution, then they should work for an amendment. If we imagine that limiting or prohibiting abortion would be a grave injustice (it would not), that fact alone would not create a constitutional right. Slavery was a grotesque injustice — and it took a constitutional amendment to abolish it as a matter of law. Slavery was always evil, but it wasn’t unconstitutional until the 13th Amendment made it so.

What the law should say is a question for legislators. The question for judges is what the law says.

And what the Constitution actually says about abortion is . . . nothing. If the Supreme Court does its job (never a sure bet, unfortunately) then abortion-rights advocates will still have the opportunity to argue that there should be legal protection for abortion rights. They’ll have the chance to argue for their position in every state legislature and, if it comes to a constitutional amendment, in Congress. The people who call themselves Democrats will have many opportunities to submit their position to the judgment of the people as part of the democratic process.

Progressives have grown too used to having the federal courts do their political work for them. As Barack Obama once put it: Try winning some elections.

Politics & Policy

The Biden Administration Comes Full Circle on Recommending Boosters to Everyone

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President Joe Biden makes remarks during a visit to the Flatirons Campus Laboratories and Offices of the National Renewable Energy Laboratory in Arvada, Colorado, September 14, 2021. (Leah Millis/Reuters)

Back in August, President Biden went before the country and announced that every fully vaccinated adult American would need a booster shot: “Our medical experts announced a plan for booster shots to every fully vaccinated American — adult American.”

“If you got your second shot on February 15th, you’re eligible to get your booster shot on October 15th,” Biden declared. “If you got your second shot on March 15th, go for your booster starting on November 15th. And so on. Just remember, as a simple rule — rule: Eight months after your second shot, get a booster shot. It will make you safer and for longer. And it will help us end the pandemic faster.”

But within a few weeks, the FDA and CDC contradicted Biden’s vision, recommending boosters only for the elderly and the immunocompromised. And we later learned that CDC director Dr. Rochelle Walensky overruled her own agency’s advisory panel and recommend boosters for workers who interact with the public a lot. Clearly, not every bright medical mind in the government agreed on who should get boosters and when.

This week, the CDC issued updated guidance recommending that every adult get a booster — back to the original position that President Biden announced in August. For what it’s worth, two recently retired top FDA officials who specialized in vaccines, Philip Krause and Marion Gruber, still aren’t convinced that everyone needs a booster. “We continue to think that while boosting can improve immune responses and can even further increase already very high levels of protection in some people, the need for a boost remains restricted to people who are at high risk of serious disease (including the elderly) or those at risk of exposing vulnerable household or workplace contacts if they get infected.”

In fact, the pair, along with Paul Offit, a member of the FDA vaccine advisory committee that voted against boosting for all adults last month, contend that rolling out a booster campaign that involves a third dose of the same vaccine may be counterproductive: “Our views aren’t changed by the data available so far about the potentially dangerous new omicron variant. To the contrary, the possible need for a booster shot targeting a potentially vaccine-resistant variant is a reason to hold off on a booster targeting the original variant.”

Krause, Gruber, and Offit might be wrong. But it’s hard to argue they’re not experts, or that they don’t know what they’re talking about, or that they’re nuts. (If they are nuts, it means that the FDA’s Office of Vaccine Research and Review has been run by a pair of nutjobs for about a decade.) And their objections and counter-arguments are probably worth considering, even if the broader consensus is that rolling out boosters for everyone will do more good than harm.

But at the White House today, it’s full speed ahead on rolling out boosters for every adult American — with no acknowledgement that some medical experts aren’t yet convinced that everyone needs one. Even if giving boosters to every American is the right policy, the public is not well served when the government pretends that counter-arguments and well-informed skeptics don’t exist.

And this White House wonders why so many Americans have started to tune them out when it comes to policies relating to the pandemic?

Law & the Courts

Justice Barrett and the Burden of Parenthood

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Judge Amy Coney Barrett reacts during her confirmation hearing on Capitol Hill in Washington, D.C., October 14, 2020. (Jonathan Ernst/Reuters)

As I noted yesterday afternoon, the oral arguments in Dobbs at the Supreme Court yesterday morning featured an exchange between U.S. solicitor general Elizabeth Prelogar and Justice Amy Coney Barrett about the burden of parenthood as it relates to abortion.

Prelogar, who argued on behalf of the U.S. against Mississippi’s 15-week abortion ban, told Barrett that “safe haven” laws — which shield mothers from prosecution if they surrender an unwanted child to a safe haven — are insufficient to guarantee women’s bodily integrity and autonomy. Being able to terminate parental rights, in other words, does not sufficiently diminish the burden of parenthood.

It struck me as especially ironic that Prelogar would suggest to Barrett, a mother of seven who sits on the highest court in the country, that the burden of parenthood is an insurmountable obstacle to women’s success.

World

The Power of One

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Peng Shuai returns a shot at the 2008 Beijing Olympics. (Toby Melville / Reuters)

In Impromptus today, I lead with jury duty, which leads to Balkanization in our country — have you filled out your “juror information” form? — which leads to politics, which leads to . . . you know how it goes. Personalities in my column include Thomas Jefferson, Jim Harbaugh, and Mark Roth. (The last of those was a bowler.) (The second is a former quarterback and current coach.) (The first is a statue, removed.) Among the countries I discuss are Taiwan — it’s still a country, for now — Ukraine, Hungary, and India. Here on the Corner, I’d like to say something about China — great, vast China — and one Chinese citizen, in particular: Peng Shuai.

She is a tennis player, who was raped by a government official and said so. As a consequence, she was banished from view. A lot of people want to know where she is. Her case has galvanized the tennis community and segments of the general public, in various countries.

A reader of mine writes something like this: “Wouldn’t it be neat if some athlete, in some democratic country, said, ‘I’m not going to the Olympics while Peng Shuai is missing’? Wouldn’t it be even more neat if an entire team said, ‘We aren’t going, as long as she is missing’?”

That would indeed be amazing.

The Chinese state pulverizes people every day — people who are anonymous, except to their loved ones, and themselves. The state brutalizes the Tibetans, brutalizes the Uyghurs. Brutalizes ordinary Han Chinese. That’s what a dictatorship does: brutalize. And yet, the case of this one young woman has caught the attention of many people. People can understand it, wrap their minds around it: tennis player has been raped by a government official and has been disappeared. I know what she looks like. There’s her picture.

You recall the statement attributed to Stalin: “One death is a tragedy; a million deaths are a statistic.”

Yelena Bonner, the wife of Andrei Sakharov, the great physicist and dissident, told me that her husband disliked talking about human rights in general. He preferred to talk about individual cases — especially cases he was involved in personally. People could relate to that. Not “human rights.”

Over 25 years or so, I have written a lot about human rights in China — human rights in general, in that country. (By the way, there is an organization, founded in the 1980s, called, simply, Human Rights in China.) But I have also written about, say, Grace Gao. Hers is a story that people can relate to, I would think. I have written about the Uyghurs. Generally. But I have also written about Gulchehra Hoja and her family — personally.

Hong Kong is interesting. Interesting and important. So are Tanya Chan and Nathan Law, individually.

I have written a lot about Russia — and about Ildar Dadin, say, or Oyub Titiev, personally.

In Saudi Arabia: Raif Badawi and Ensaf Haidar, and Loujain al-Hathloul. In Venezuela: Antonio Ledezma and Leopoldo López. In Nicaragua: Félix Maradiaga and Edipcia Dubón. In Iran: Manouchehr Honarmand and Masih Alinejad. In Cuba: Juan Carlos González Leiva and Danilo Maldonado.

And so on.

Syria is a place so dark and terrifying and murderous, it can scarcely be imagined. But one can narrow in on the life of, for example, Waad al-Kateab.

There are a billion and a half people in China. You can’t know them all. But Peng Shuai — “You know that tennis player?” I hope she does a lot of damage to that nasty, foul, life-opposing regime. It is an enemy of all mankind.

Education

The Endless Lies and Deceit over CRT

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Hans Bader turns over a rock in this Liberty Unyielding piece when he writes that, “Schools say they teach critical race theory, even as education reporters falsely deny it.”

Here’s another slice:

The Post’s Sarah Pulliam Bailey claimed that critical race theory is “an intellectual movement that examines the way policies and laws perpetuate systemic racism and is not part of the public school curriculum.

But it is in some schools’ curriculum, and it is not just an “intellectual movement” aimed at addressing racism or discrimination. Critical race theory is a radical ideology that is hostile to the free market economy, equating it with racism: “To love capitalism is to end up loving racism. To love racism is to end up loving capitalism. . . . Capitalism is essentially racist; racism is essentially capitalist,” says the best-selling book promoting critical race theory, How to Be An Antiracist. That book is a “comprehensive introduction to critical race theory,” gushes the leading progressive media organ Slate.

Read the whole thing.

Regulatory Policy

Another Imperial Regulator on the Way?

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Federal Reserve in Washington, D.C. (jjgervasi/iStock/Getty Images)

One of the features of the first year of the Biden administration has been the way that regulators are increasingly trespassing into territory more properly reserved for legislatures.

If it is true that Richard Cordray is going to be nominated to the Federal Reserve as vice chair for supervision, which is what current talk now suggests (his name is certainly under consideration), it could mean that another imperial regulator may well be on the way to being appointed.

The Wall Street Journal’s editorial board summarizes Cordray’s career here. Let’s just say that it doesn’t make entirely reassuring reading. Let’s also note that Elizabeth Warren is something of a fan.

What does the job entail (in theory)?

CNBC explains:

The Fed’s vice chair for supervision, a role created in the aftermath of the 2007-09 financial crisis, serves as one of the nation’s top bank watchdogs and is responsible for ensuring the health of the nation’s largest lenders like JPMorgan Chase, Goldman Sachs and Citi. The official monitors banks’ balance sheets, capital reserves and broader systemic risks that could arise in the event of an economic downturn.

That sounds sensible enough, but keep an eye on that phrase “systemic risk,” something that has come to mean rather more than it should, notably when it comes to climate issues, as John Cochrane discussed in a recent Supply & Demand post for Capital Matters. Here’s an extract:

A “risk to the financial system” does not mean that someone, somewhere, someday, might lose money on an unwise investment. A risk to the financial system means an event like 2008: a shock so big, so pervasive, and so fueled by short-term debt that it sparks a widespread run, a wave of defaults, and threatens the ability of the whole system to function. “Financial regulation” means looking at the assets and liabilities of financial institutions to mitigate such a risk. It can at best look a few years in the future.

So, if we use plain English, a “climate risk to the financial system” that “financial regulators” can contain must mean the climate might change so drastically, so abruptly, and so unexpectedly, in the next five years, that the economy tanks so terribly that financial institutions blow through the cushions of equity and long-term debt, to spark a widespread systemic crisis like 2008 or worse.

The trouble is, there is absolutely nothing in even the most extreme scientific speculations to support that possibility. Climate is the probability distribution of weather: the chance of heat and cold waves, floods, fires, and so forth. We know with great precision what the climate will be for the next five years. Nobody writing insurance in Florida is unaware of the chance of hurricanes. The chances of extreme weather are not going to change unexpectedly in even ten years. The sea level is rising. It will continue to rise, about 4 millimeters per year – 2 cm in the next five years – slowly and predictably. Risk is the unknown. This is known.

Moreover, even weather extremes just don’t move the economy that much. We have had many financial crises in history. Not one was sparked by an extreme weather event. Our modern, national economy is remarkably immune to weather. . . .

The Wall Street Journal:

Chairman Jerome Powell has said he will defer on regulation—which would include climate change—to whomever Mr. Biden appoints as vice chair of supervision. Was that part of the understanding when he was reappointed? Mr. Cordray, backed by vice chair nominee Lael Brainard, would have enormous power to impose a progressive agenda on big banks.

This could include making too few loans to minorities or too many to fossil-fuel companies. With control over bank capital standards and dividend policies, he would have enormous sway over Wall Street. As Nebraska Sen. Ben Sasse put it in a press release Tuesday, “Richard Cordray is a wannabe king.”

A king? Perhaps, although another Republican senator, Louisiana’s John Kennedy, has described Cordray as being to the “left of Lenin.” Either way, the message is clear. If appointed, Cordray could not be relied upon to keep within the boundaries of what this job is meant to be. In a democracy, regulators should regulate, not legislate. In the Biden era, that cannot, sadly, be taken for granted, meaning that the legislators in the Senate would not be doing their jobs if they approved Cordray or, if he’s not chosen, any other nominee who might be tempted to use his or her power to advance an agenda that ought to be decided by the elected, not the selected.

World

WTA’s Right: Athletes in China Face Risk of Arbitrary Detention

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Shuai Peng of China returns serves against Varvara Lepchenko at the U.S. Open tennis tournament at USTA Billie Jean King National Tennis Center in Flushing, N.Y., August 26, 2019. (Jerry Lai-USA TODAY Sports)

There’s a lot to be said about the Women’s Tennis Association’s commendable move to suspend its participation in tournaments in China, following the disappearance of tennis star Peng Shuai. WTA chairman Steve Simon’s statement gets at the heart of the most important issues here — foreigners who travel to China are putting themselves at significant risk, particularly if they come from a country that is at odds with Beijing politically.

Simon described this as one of the factors that prompted his organization to suspend its activities in China:

As a result, and with the full support of the WTA Board of Directors, I am announcing the immediate suspension of all WTA tournaments in China, including Hong Kong. In good conscience, I don’t see how I can ask our athletes to compete there when Peng Shuai is not allowed to communicate freely and has seemingly been pressured to contradict her allegation of sexual assault. Given the current state of affairs, I am also greatly concerned about the risks that all of our players and staff could face if we were to hold events in China in 2022.

Athletes competing in China already faced a significant risk before the Peng Shuai saga — and now they have even greater reason to fear the risk of arbitrary detention. Under the National Security Law that Beijing imposed on Hong Kong in 2020, the city’s authorities are able to seek the arrest of anyone, anywhere in the world, for any perceived offense against the Chinese Communist Party.

Even before that expansive law’s promulgation, Beijing has shown few qualms about detaining foreigners on fabricated charges to serve as political bargaining chips, as Chinese authorities did when they detained two Canadian citizens in 2018. A number of U.S. citizens have also been subject to “exit bans,” in which they were forced to remain in the country until the Biden administration brokered prisoner swaps this year. The State Department’s China travel advisory warns that Beijing uses exit bans to “compel individuals to participate in PRC government investigations” and “gain bargaining leverage over foreign governments.”

WTA’s made the smart move here, but this only casts a harsher light on the International Olympic Committee, which has shown a callous disregard for Beijing victims and attempted to help the Chinese party-state cover up Peng’s apparent detention. The IOC doesn’t seem to care about Olympic athletes — who are slated to compete in the Winter Games in a mere three months. And there’s even a lower likelihood that they’ll heed warnings that athletes competing in China could face the risk of arbitrary detention.

Former secretary of state Mike Pompeo warned about precisely this scenario in an interview with me in March, predicting that athletes who speak out about the Uyghur genocide could be prevented from leaving China:

“I can’t imagine any athlete from anywhere in the world not knowing what’s going on in Western China, and not wanting to be able to talk about that. And yet, if they chose to do so inside of China today, I think, a likely outcome is the Chinese Communist Party would deny them their exit,” Pompeo said. “That’s just dangerous and unacceptable. We shouldn’t force athletes to suffer that choice.”

Politics & Policy

Yet Another Pro-abortion Historians’ Brief

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Anti-abortion and pro-abortion rights activists protest outside the Supreme Court building, ahead of arguments in the Mississippi abortion rights case Dobbs v. Jackson Women’s Health, in Washington, D.C., December 1, 2021. (Jonathan Ernst)

Our legal and journalistic cultures being what they have been for the last few decades, opponents of Roe v. Wade have had an uphill climb in getting our arguments across. One set of criticisms of Roe has been an exception to this rule. The ideas that Roe has blocked the possibility of compromise on abortion, poisoned our politics, and deformed the judicial-confirmation process have become something close to conventional wisdom — probably because they strike most people as obviously true. Even Justice Ruth Bader Ginsburg partly agreed.

But because these truths are inconvenient to the pro-choice side of the case now before the Supreme Court, Dobbs v. Jackson Women’s Health Organization, a group of historians has filed a legal brief saying that this common view of the political history of the last few decades is “inaccurate.” They succeed only in refuting a straw-man version of the argument.

The imaginary argument that the brief refutes goes like this: A compromise on abortion acceptable to both sides of the debate would have been easy to achieve; when Roe came down, the politics of abortion immediately became bitterly polarized on partisan lines; and everyone would quickly come together in a spirit of mutual cooperation if only Roe were overruled. Mississippi is, of course, advancing nothing like this argument. Nobody is.

Left untouched by the brief are these points:

ONE: Roe and its companion case Doe v. Bolton explicitly struck down Georgia’s attempt at a compromise on abortion. Subsequent court decisions struck down other compromise laws that had some support even from people who consider themselves pro-choice. In the current case, the pro-choice side is trying to strike down a law that a) allows abortion at the times the vast majority of abortions take place and b) has strong majority support in polling, again including support from many people who consider themselves pro-choice.

TWO: The Court’s nationalization of the abortion debate, its imposition of an extreme version of one side’s preferences on the issue, and its lack of any convincing constitutional argument for its action all contributed to a slow process of polarization in American politics. The historians’ brief argues that the polarization of the parties, e.g., based on religion, is what caused judicial confirmations to grow more contentious; it is studiously incurious about whether there might be a relation between that polarization and the Court’s decisions. Religious polarization just happened.

THREE: Roe began a process that culminated in abortion’s becoming the top issue in every Supreme Court nomination debate and a lot of lower-court nomination debates as well.

All of this took time. It took time for elected Democrats to become uniformly supportive of abortion; it took time for groups with ancestral ties to the Democratic Party to decide that the newly abortion-enthusiastic party no longer fit with them; it took time for the mirror-image processes to happen among Republicans; it took time for first one group of voters and then another to realize that the stakes of judicial confirmations had changed; it took time for norms about judicial confirmations to erode. The brief repeatedly attacks Mississippi for saying that the Court’s abortion jurisprudence “poisoned the national discourse” but doesn’t even register an elementary feature of the metaphor: As Carrie Severino points out, some poisons take a while to work their harm.

During the last three decades, several presidential nominees have explicitly pledged that their judicial picks would vote in a particular way in abortion cases. They haven’t made similar pledges about the death penalty or affirmative action. Abortion is the issue that has warped judicial politics. The historians would have you believe that the fights over the nominations of Robert Bork, Samuel Alito, and Brett Kavanaugh, among others, would have been just as intense if the Supreme Court had never occupied the field of abortion policy. If they really believe this themselves, they’re just about the only people who do.

Politics & Policy

Atomic-Veterans Survivors’ Benefit Program Expires in Seven Months

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“Shot Grable,” the first and only test of the Atomic Cannon using a live 280mm nuclear artillery shell which took place at the Nevada Test Site in 1953. (United States Air Force's Lookout Mountain 1352d Photographic Squadron/via Reuters)

My father, Wesley L. Smith, died for his country. He wasn’t shot or blown up in war — although he was wounded in World War II and was awarded a Silver Star and two Bronze Stars for valor. No, when the Korean War broke out, he was called back into active service and sent to the Nevada Atomic Test Sites — where he was exposed to deadly radiation. He also lost his hearing in a test.

Dad died of cancer in 1984. But when Mom applied for survivor’s benefits as Dad asked her to do, she was refused repeatedly. And the VA lied about his service, first saying he was never in Nevada and then — after I proved through documentation and his hearing loss from a bomb blast that he indeed was — they lied about his never having been exposed.

It has been a festering wound in my soul all these years. So last Memorial Day, I wrote about how many “atomic veterans” were cheated and denied the recognition they deserved by the VA for their ultimate sacrifice. (If you want to read the unjust details, hit this link.) I received an outpouring of responses — many quite emotional — from others who had experienced the same shameful denial of just benefits and patriotic recognition.

In writing that piece I did a little research and discovered that there is a little-known program through the Justice Department that provides a tax-free payment to atomic veterans or their survivors as compensation for their sacrifice. I applied, and today I received the benefit. It requires proof of cause of death, exposure to the risks identified in the statute, and relationship to the person who became ill or died from radiation-caused illness.

I write because there are many family members of atomic veterans who are entitled to receive compensation but, like I was, may be unaware of the program. This issue is pressing because — unless renewed by Congress — it expires in July of 2022, only seven months from now! There are bills to renew, but no guarantee that they will pass.

If you are the surviving family member of an atomic veteran who died from cancer, leukemia, or other radiation-related disease, or worked to build these weapons or mined uranium, you may be entitled to a benefit. Here is the link to the statute (see page 4988). There are attorneys and assistance organizations that can help you for a modest contingency fee. I used one, and it greased the skids considerably.

Here is the preamble to the statute that pays tribute to those who protected this country and contracted terminal illness from their service:

‘‘SECTION 1. SHORT TITLE. ‘‘This Act may be cited as the ‘Radiation Exposure Compensation Act’. ‘‘SEC. 2. FINDINGS, PURPOSE, AND APOLOGY. ‘‘(a) FINDINGS.—The Congress finds that— ‘‘(1) fallout emitted during the Government’s atmospheric nuclear tests exposed individuals to radiation that is presumed to have generated an excess of cancers among these individuals; ‘‘(2) the health of the individuals who were exposed to radiation in these tests was put at risk to serve the national security interests of the United States; ‘‘(3) radiation released in underground uranium mines that were providing uranium for the primary use and benefit of the nuclear weapons program of the United States Government exposed miners to large doses of radiation and other airborne hazards in the mine environment that together are presumed to have produced an increased incidence of lung cancer and respiratory diseases among these miners; ‘‘(4) the United States should recognize and assume responsibility for the harm done to these individuals; and ‘‘(5) the Congress recognizes that the lives and health of uranium miners and of individuals who were exposed to radiation were subjected to increased risk of injury and disease to serve the national security interests of the United States. ‘‘

(b) PURPOSE.—It is the purpose of this Act to establish a procedure to make partial restitution to the individuals described in subsection (a) for the burdens they have borne for the Nation as a whole. ‘‘

(c) APOLOGY.—The Congress apologizes on behalf of the Nation to the individuals described in subsection (a) and their families for the hardships they have endured.

This doesn’t end the pain of losing my father way before his time, but the country’s recognition of his sacrifice does ease the bitterness. Here’s to you, Dad! Your grateful nation salutes you.

Law & the Courts

It’s Morning in America!: The Great Hope of Dobbs Is a Beautiful Challenge to Us All

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The weather was so beautiful outside the Supreme Court. I don’t know how many of us got out there bright and early to secure our spots for the pro-life rally organized by the Mississippi Attorney General’s office (who are just lovely people, based on my interactions). Hope was palpable where I was. Students for Life of America have talked for a while about a post-Roe America, and it is undeniably a possibility today. In remarks I gave today, I talked about the love women desire that some of the pro-life resources help provide. I specifically talked about the Sisters of Life who love women and girls back to life. I didn’t even get into their post-abortion healing work. My remarks are here. I’ll have more to say after some interviews. I was just incredibly encouraged after more than a quarter-century of pro-life work. We may be about to turn a page. There is a lot more work to be done, but today’s proceedings should impress upon everyone who would like to see less abortion in America that we have to step up to the challenge of making sure women and girls — and men and boys — know that parenthood is possible, and rewarding. We should not be ashamed of adoption. Abortion needs to be implausible. The pro-life movement needs to inundate the country with the love it represents.

What a powerful morning we had in America today!

Law & the Courts

What Justice Kavanaugh Told Senator Collins

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Then-nominee Brett Kavanaugh testifies before the Senate Judiciary Committee in Washington, D.C., September 27, 2018. (Michael Reynolds/Reuters)

We’re hearing a lot, and are going to hear more, to the effect that Justice Kavanaugh got on the Supreme Court by assuring Senator Collins that he would respect Roe v. Wade as a precedent and that voting to overturn it would mean he had lied to her. The Washington Post already ran a story making this case back in September.

Let’s check the tape. We are relying on Senator Collins’s description of the conversation, but it’s notable that she has never said, “Kavanaugh promised me that he would not vote to overrule Roe,” or anything similar. He didn’t, that is, make the kind of firm commitment to rule a particular way in a possible future case that most legal analysts would consider grossly improper. Collins herself said that Kavanaugh had not made any such commitment.

Here’s what Collins has said, according to the Post:

“As the judge asserted to me, a long-established precedent is not something to be trimmed, narrowed, discarded, or overlooked,” Collins said. “Its roots in the Constitution give the concept of stare decisis greater weight simply because a judge might want to on a whim. In short, his views on honoring precedent would preclude attempts to do by stealth that which one has committed not to do overtly.”

And here’s Politico’s account:

“We talked about whether he considered Roe to be settled law,” Collins told reporters. “He said that he agreed with what [Chief] Justice [John] Roberts said at his nomination hearing in which he said that it was settled law.”

What Roberts said at his hearing was that Roe was a precedent of the Supreme Court entitled to respect as such, “like any other precedent of the Court.” Obviously Roberts did not deny that precedents can ever be overruled, and he specifically avoided declaring that he would vote to re-affirm Roe and Casey, as several senators were pressing him to do.

If Kavanaugh votes to overrule Roe and Casey, presumably it will not be merely because he thinks they were wrongly decided as an original matter; he will grant that their holdings deserve more weight than they would if the Court were coming at them fresh. He will treat them as precedents of the Court to be considered. But if he concludes that there are nonetheless good reasons to overrule them, he won’t be contradicting anything that Collins has said that he said. (Whether she will agree with his decision is of course another matter.)

The Supreme Court has given pro-lifers ample reason to be suspicious of any nominee to it. But the vast majority of pro-lifers didn’t get upset about any of Kavanaugh’s statements in 2018 — because he didn’t say what a lot of pro-abortion commentators now want to pretend he did.

Law & the Courts

Full Transcript and Audio of Dobbs Arguments Now Up

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The Supreme Court Building in Washington D.C., August 5, 2021 (Brent Buterbaugh/National Review)

For those who missed the oral arguments in Dobbs vs. Jackson Women’s Health and who already digested our liveblog, a full transcript is now available here.

Also, C-Span has posted the full audio.

Law & the Courts

Sotomayor’s Ridiculous Birth-Control Argument

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Associate Justice Sonia Sotomayor poses during a group photo of the Justices at the Supreme Court in Washington, D.C., April 23, 2021. (Erin Schaff/Pool via Reuters)

During her “questioning” in the Dobbs case today, Sonia Sotomayor argued that 19 percent of Mississippi women went without access to birth control because they were uninsured.

It is certainly true that there can be some planning by some people about pregnancy. People who are raped don’t have a choice, whether it’s by an outsider or their own husband. And not everybody can afford contraceptives, contrary to the — the — your adversary’s brief. In fact, 19 percent of the women in Mississippi are uninsured, so they don’t have money to pay for contraceptives.

They can’t pay for contraceptives, but they can pay for abortions?

This is a truly stupid talking point that has been popularized over the past decade or so. Now even if we concede for the sake of argument that the government has some civic responsibility to subsidize your birth control, people without means have Medicaid, which covers contraception. Second, Democrats have, in many cases, compelled business owners — even those who have personal and religious objections — to subsidize abortifacients and birth control for their employees. Third, birth control is relatively inexpensive discretionary purchase, not a medical necessity, that can be found virtually anywhere in the country even if a person doesn’t have employer-provided or government health-care coverage. And the main arguments for continuing to subsidize Planned Parenthood with hundreds of millions of taxpayer dollars every year is to help women obtain birth control.

But, of course, we have no constitutional obligation to provide our neighbors — men or women — with contraception. But can you imagine a justice making the argument that Americans don’t really have “access” to guns — a right explicitly protected in the Constitution — because the state isn’t subsidizing their AR-15s? It’s a ridiculous standard, and we shouldn’t allow this framing to be normalized.

Politics & Policy

Is Fauci a Good Representative for Science? Should He Try to Be?

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My Bloomberg Opinion column today.

Anthony Fauci, President Joe Biden’s chief medical adviser and the longtime head of the National Institute of Allergies and Infectious Diseases, keeps saying that his critics are “really criticizing science because I represent science.” Maybe he even believes it. But it might be time for science to find another spokesman. . . .

Law & the Courts

The Daily Beast Smears Justice Barrett

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Associate Justice Amy Coney Barrett poses during a group photo at the Supreme Court in Washington, D.C., April 23, 2021. (Erin Schaff/Reuters)

Reporting on today’s Supreme Court oral arguments in Dobbs, the Daily Beast asserts that Justice Amy Coney Barrett had “indicated she might not be inclined to protect a woman’s right to an abortion, suggesting it wasn’t necessary thanks to the option to give a child up for adoption.” (The headline of the piece is, incidentally, “Amy Coney Barrett Suggests Forced Pregnancy Is Fine Because of Adoption.”)

No such thing happened. The exchange in question took place near the end of argument, when U.S. solicitor general Elizabeth Prelogar, arguing against Mississippi’s 15-week abortion ban, was taking questions from the justices.

Barrett raised a question that she also had put to Center for Reproductive Rights attorney Julie Rikelman, about safe-haven laws, which shield women from prosecution if they surrender an unwanted child to a safe haven.

Barrett’s question was designed not to advocate adoption as an abortion alternative but rather to force Prelogar to get to the heart of what principle makes the right to abortion so essential. She was asking, in other words, whether the supposed burden of parenthood is diminished by safe-haven laws. If the aim of abortion supporters is to enable women to choose not to be a parent, why are safe-haven laws not good enough? Why must the government also sanction abortion?

Prelogar’s response was, in effect, that both continuing pregnancy and giving up a child for adoption still put too much of a burden on women, and thus abortion needs to remain an option in order for women to have a real choice and real freedom. The right to abortion, in other words, is essential not so that women don’t have to parent or can end pregnancy (which can be done without aborting the child) but so that they can affirmatively do away with an unwanted child.

It was a revealing exchange — but it certainly didn’t reveal that Barrett is poised to overturn Roe because she thinks adoption makes abortion unnecessary, as the Daily Beast suggests.

World

Who Trusts Joe Biden to Stand Up to Vladimir Putin?

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Then-Vice President Joe Biden shakes hands with Russian Prime Minister Vladimir Putin during their meeting in Moscow in 2011. (Alexander Natruskin/Reuters)

David Ignatius wrote yesterday that the CIA and the Biden administration are seriously worried about another Russian invasion of Ukraine:

Blinken is likely to warn NATO allies Wednesday that Putin may be preparing a ploy in which he falsely claims that Russian-backed forces have been attacked by Ukraine, as a pretext for taking action. Blinken said last month that Putin made such false claims when he invaded Ukraine in 2014, and that they’re part of his “playbook.”

Ignatius concludes his column by declaring, if “Putin invades Ukraine, the United States and its allies are discussing this week how to make him pay as heavy a cost as possible.”

One can forgive the Ukrainians for not feeling reassured, because the last time Vladimir Putin moved a lot of troops into Ukrainian territory and seized Crimea, one of the U.S. officials who pledged serious consequences was… Joe Biden.

Vice President Joe Biden said on Tuesday that Russia’s treaty to annex Crimea was a “blatant violation of international law” and promised more sanctions against Moscow.

Biden said Russia had carried out a “brazen military incursion” that “ratcheted up ethnic tensions,” and that Russia’s President Vladimir Putin’s annexation of Crimea was “nothing more than a land grab.”

After Russia invaded Crimea, the U.S. imposed some economic and trade sanctions, canceled military consultations, and made other minor moves like declining to send a presidential delegation to the Paralympic Games in Sochi. But those moves certainly didn’t leave Putin feeling chastened or intimidated. The actions were no more memorable or consequential than the Obama administration’s excruciatingly slow-footed response to Malaysian Airlines Flight 17 being shot down by Russian forces in Ukraine. Once a regime has escaped consequences for accidentally shooting down a passenger airliner… why should they worry about any other international condemnation? It’s all just words.

Like Obama, Biden’s instinctive response to international aggression is to meet with allies and offer a strongly worded statement denouncing the aggression. Then they enact some sanctions that don’t really hurt the autocrat who made the decision to invade… and then the world moves on. The crisis fades from the headlines. Domestic problems return to the spotlight. Eventually, the outrageous presence of Russian soldiers on foreign soil becomes part of the new status quo… until the next crisis.

It’s all reminiscent of the Biden administration’s stubborn insistence that it has serious leverage over the Taliban, leverage that never seems to show itself or generate any good results.

Law & the Courts

Roe Is Extralegal Nonsense, and Nothing Else Matters

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The Supreme Court Building in Washington D.C., August 5, 2021 (Brent Buterbaugh/National Review)

I enjoyed listening to the Supreme Court’s oral arguments in Dobbs because I like debate and I am interested in the workings of the law, but I also found a great deal of the conversation pointless because it took as its starting point the false idea that the Court owes some deference to rulings that were invented out of whole cloth. At one point, Justice Kagan insisted that “nothing has changed” since Roe and Casey were decided, and she was right. Nothing has. Those decisions were nonsense then, and they are nonsense now. Because he has to operate within the House of Cards that the Court has built, the lawyer for Mississippi could not say when asked that overturning Roe might lead to other nonsense decisions being overturned, too. But it would have been better for the country if he had. Of course Griswold should go, too. It’s fake. All the fake rulings should go. On this, and so much else, Clarence Thomas is correct.

A few months after Roe was decided, the (pro-choice) legal scholar John Hart Ely noted that Roe had created a “super-protected right” that “is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure,” and thus answered “a question the Constitution has not made the Court’s business.” Roe “is bad,” Ely concluded, “because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” And that should be enough to justify its dissolution. It doesn’t matter whether Roe is a “precedent” or a “super-precedent” or a “cucumber precedent.” It’s tosh, and always has been.

As for the consequences? Justice Sotomayor (D., Planned Parenthood) has it completely backwards. Sotomayor suggested more than once that if the Court were to overturn Roe, it might be seen as acting in a “political” manner. But it was Roe that was “political.” Overturning it, and returning it to the people, would be anti-politics. Unlike, say, jury trials or free speech or the right to bear arms, abortion was never a question for the courts, and for them to dispense with it for good would be a significant win for separation of powers. The idea that it could be “political” to take control of an intrinsically democratic question away from an unelected branch is worthy of Alice of Wonderland.

In one sense, the conversation was futile. On one side, we had Clarence Thomas asking insistently where the right to an abortion could possibly be found in the Constitution; on the other, we had a series of political speeches about whether or not abortion was a good idea. If it takes its job seriously, the Court will separate these two approaches further, and ensure that next time the second type is heard across the land, it is from the floors of the 50 state legislatures — where we all know it rightly belongs.

Politics & Policy

Why the ‘Wokeness’ Stampede?

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If you’ve been wondering why not just academia but also business is caught up in the wokeness stampede, I suggest this City Journal essay.

The author is UCLA professor Gabriel Rossman and here’s a slice:

Neo-institutionalism helps explain why we see organizations engage in practices that don’t serve the bottom line. Ultimately, legitimacy trumps efficacy. Suppose that you’re a manager who reads the academic literature, sees that the heavy-handed self-criticism styles of sexual-harassment or racial-diversity training are somewhere between useless and counterproductive, and proposes canceling next year’s training. Legal is going to complain that this will look bad if you face a wrongful-dismissal suit anytime soon. And some of your biggest contracts require that co-located employees from your firm have to be certified as having received the training. Many employees will complain that they expect the firm to express their values, which includes holding seminars featuring “privilege walks” to reaffirm the firm’s commitment to ending white supremacy and other forms of domination. These stakeholders will point to the fact that all your leading rivals in the industry hold such seminars; it is a “best practice.” So you go on propitiating the gods, even knowing full well that they don’t exist, because everyone around you believes in the spirits and even more so in the rituals that honor them and would consider neglect of such piety a sign of illegitimate leadership.

Culture

The State of Femininity

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I discussed the state of feminity with Inez Stepman of the Independent Women’s Forum for the High Noon podcast.

Law & the Courts

Pro-Abortion Attorney Fudges Facts on International Abortion

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Supreme Court Chief Justice John Roberts during a group portrait session for the new full court at the Supreme Court in Washington, D.C., November 30, 2018. (Jim Young/Reuters)

During this morning’s oral arguments in Dobbs v. Jackson Women’s Health Organization, Chief Justice Roberts asked Julie Rikelman, one of the attorneys arguing against Mississippi’s ban on abortion after 15 weeks, about U.S. abortion policy as compared to the rest of the world.

Roberts noted that the U.S. is one of only seven countries to allow abortion after 20 weeks and pointed out that most European countries limit abortion to far earlier in pregnancy.

In response, Rikelman alleged that this wasn’t true and claimed that Roberts was incorrect to say U.S. abortion policy is extreme compared to the rest of the world. She argued most of Europe allows abortion until viability.

This is simply untrue. Nearly every European country that allows abortion at all limits it to the first 12 weeks of pregnancy, and a handful allow it until 15 weeks. They do not, as Rikelman suggested, allow abortion after that point for “broad social reasons.”

Meanwhile, Roberts was correct that the U.S. is one of only seven countries — along with North Korea, China, Vietnam, Canada, Singapore, and the Netherlands — to allow abortion after 20 weeks. It’s telling that Rikelman refused to respond honestly. To do so would’ve exposed how beyond the pale her side’s argument really is.

Law & the Courts

We Need Less Transparency in the Supreme Court

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Hearing Justices Stephen Breyer and Sonia Sotomayor regurgitating partisan pro-abortion arguments and euphemisms that one can read daily on NARAL’s Twitter feed only reenforces the argument for limiting transparency in the Court. The partisan speechifying — barely a question to be found in most of it — is insufferable, but worse, it has little, if anything, to do with the Constitution.

Would these justices act like activists without the presence of live audio? Maybe. But Justice Sotomayor openly wondered this morning if a Court could “survive the stench” that overturning Roe would create “in the public perception.” In another instance, an agitated Justice Breyer explicitly asked the audience to go read pages of Casey. The Supreme Court adjudicates the constitutionality of laws. It is not charged with worrying about the popularity of decisions or the vagaries of democracy (though Sotomayor makes a good case that abortion should be handed to states and voters rather courts.)

And no one is immune from human nature. The lawyers and state advocates who participate in the arguments, many of whom may one day run for public office or seek political positions, would be more motivated to play to the cameras. Audio is bad enough, but imagine cameras in the Court — something both Republicans and Democrats have proposed instituting. It would make everyone more self-conscious about their public persona and politics. Justices do not live in hermetically sealed existences free of external influences. Making these cases spectacles of political entertainment would only further corrode our political institutions. You can read the transcript and decision later.

Check Out Our Dobbs Oral Arguments Liveblog

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Anti-abortion marchers rally at the Supreme Court during the 46th annual March for Life in Washington, D.C., January 18, 2019. (Joshua Roberts/Reuters)

It’s about time for oral arguments to get under way in Dobbs v. Jackson Women’s Health Organization, the most pivotal abortion law case in nearly 30 years.

For insight on what is happening in real time, follow our Liveblog, with expert commentary and analysis from Ramesh Ponnuru, Rich Lowry, Dan McLaughlin, Ed Whelan, Carrie Severino, Charlie Cooke, Alexandra DeSanctis, Madeleine Kearns, and others.

Media

The Fake Punishment of Chris Cuomo

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CNN’s Chris Cuomo arrives for a talk show appearance in New York, May 2, 2019. (Gilbert Carrasquillo/GC Images via Getty Images)

Wow, indefinite suspension? Kinda sounds like CNN finally fired Chris Cuomo. But not really. All that happened is Cuomo gets to take the holiday season off. Sweet deal! We know this because CNN’s own media reporters are already musing about when he’s coming back. From Brian Stelter and Oliver Darcy’s media newsletter, released hours after the grave announcement of the fake punishment:

The CNN spokesman who shared the suspension decision did not get into any further details, but it’s possible that Cuomo — who frequently ranks as the highest-rated host on the network — will remain on the bench for weeks.

So Chris Cuomo gets to take a little break for the holiday season. Nice. How is this punishment? Answer: It isn’t! It’s merely a CNN PR ploy to get people to stop talking about Cuomo for “weeks” (wow, a whole 14 days!) until the coast is clear. As a colleague puts it: If they didn’t fire Jeffrey Toobin, they aren’t going to fire Chris Cuomo. Quick reminder on how corrupt the Cuomo brothers were when every media outlet in the country was singing the praises of both:

Pretty much the definition of corruption right there. We’ve known about this for a long time, and the reaction of the lefty media was <shrug>.

CNN doesn’t care what we say about him on the right but it cares a great deal about pieces such as this one:

CNN devoted less than one minute of airtime to this yesterday, according to the Media Research Center. Make people stop talking about this is the idea, with CNN leading the way in not talking about it.

The sole purpose of the fake punishment CNN grandly announced yesterday is so that D.C. reporters will stop firing darts because they have been given the mistaken impression that Cuomo has been fired:

Education

Intolerant People Now Control Our Campuses

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The success of the “progressive” project of taking over America’s educational institutions is evident from the fact that these institutions are now dominated by authoritarians who like to punish anyone who happens to displease them. Even the slightest, most innocent deviation from wokeness is apt to lead to severe consequences.

One such event recently occurred at the University of Michigan, when a professor showed the film of Othello, where Sir Laurence Olivier appeared with his face darkened. Some nasty students saw a chance to make the professor suffer.

In today’s Martin Center article, Garion Frankel explains why “Woke Universities are Rousseau’s Children.”

American colleges and universities are gripped by a new civil religion of “woke” beliefs. Frankel writes that, “The primary philosophical source for this civil religion is Jean-Jaques Rousseau. While the founding fathers largely rejected Rousseau, educators and curriculum designers love him. Rousseau was far from an anti-racist, but his predilection for censorship and authoritarian behavior make him a patron saint for modern social movements.”

Rousseau favored censorship of views that went against his fuzzy idea of The General Will. Similarly, today’s campus radicals think themselves entitled to silence anyone who dissents from their belief system.

The American philosopher whom we should look to instead, argues Frankel, is Thomas Paine: “Fortunately, Americans have their own philosopher to battle Rousseau and the academics who emulate his censors. Nobody could think to accuse Thomas Paine of authoritarianism or dictatorship. The man was as committed to democracy as they come. More importantly, Paine was an ardent defender of free thought and expression—in education and elsewhere.”

Let’s counteract Rousseau’s authoritarianism with Paine’s liberalism.

Politics & Policy

You Don’t Have to Look Far for the Biden NLRB’s Union Label

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Amazon boxes stacked for delivery in New York City, N.Y., January 29, 2016. (Mike Segar/Reuters)

The Biden-appointed National Labor Relations Board has decided to throw out the results of a highly publicized defeat for union organizers at an Amazon warehouse in Alabama. Workers rejected unionization by more than 2-1 in April, but the NLRB ordered a re-vote after allegedly finding that company officials improperly interfered the first time.

Unions have been working for years to crack Amazon, the second-largest private employer in the country. Some 85 percent of Amazon’s workers in Alabama are African American, and a majority of that percentage are women. Union allies in the media portrayed the warehouse as a Dickensian sweat shop.

But that’s not what Amazon workers in Alabama said when reporters finally asked them their opinion — after the vote. Workers said they felt that their pay was adequate, that they were treated fairly, and that they didn’t see a reason to have hefty union dues deducted from their paychecks.

Ironically, the NLRB threw out the results of the election in large part because Amazon installed a U.S. Postal Service collection box in front of the warehouse after voting started.

The regional NLRB official who threw out the election claimed that the collection box installation “interfered with the laboratory conditions necessary to conduct a fair election.” She stated that employees might have thought the box meant that Amazon played a role in collecting and counting ballots. But Amazon didn’t access any ballots dropped into the mailbox, which resembled nothing so much as one of the “drop boxes” that liberal voter groups demanded be set up without security all over the country during the 2020 election.

Indeed, Democrats in Congress love drop boxes so much that in H.R.1, their attempt to nationalize election laws, they required states to provide voters with around-the-clock access to drop boxes for several weeks.

Given that 71 percent of Amazon’s workers in Alabama voted against forming a union earlier this year, the chances of their vote being reversed look small. But the NLRB’s twisting of federal law to overturn a democratic vote shows just how much the Biden administration is beholden to the unions.

Law & the Courts

Why Democrats Wouldn’t Pack the Court If Roe Is Overturned

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From left: Rep. Hank Johnson (D., Ga.), Sen. Ed Markey (D., Mass.), and Rep. Jerry Nadler (D., N.Y.) introduce the Judiciary Act of 2021 aimed at expanding the Supreme Court from nine to thirteen justices outside the court in Washington, D.C., April 15, 2021. (James Lawler Duggan/Reuters)

When Democrats introduced their Court-packing bill earlier this year, some of the sponsors made it pretty clear that the legislation was meant to intimidate Supreme Court justices in upcoming cases.

“The Court needs to know that the people are watching,” Democratic congressman Hank Johnson of Georgia, a co-sponsor of the Court-packing bill, said at a press conference announcing the bill’s introduction in April.

But as I explain on the homepage, the threat is empty:

  1. There are no circumstances in which the two key moderate Senate Democrats — Joe Manchin of West Virginia, who is pro-life, and Kyrsten Sinema of Arizona — will vote to abolish the filibuster, which would be necessary to pack the Court.

  2. It’s hard to predict the future, but since September 1, Texas, the second-most-populous state in the country, has effectively banned abortion later than six weeks of pregnancy, through a law whose unusual enforcement mechanism (civil lawsuits) was designed to help it evade pre-enforcement challenges. The Texas abortion law hasn’t been the most divisive political issue in the country — pandemic policy and the Afghanistan withdrawal have both been more polarizing — nor even in Texas, where the migrant surge along the border has drawn headlines.

  3. In November, two months after Texas’s law took effect, the Democrats faced a nationwide political backlash. Virginia, a state President Biden carried by ten points against Donald Trump, elected a Republican governor by two points over Democrat Terry McAuliffe, who had made Roe and abortion a centerpiece of his campaign. In Texas, a house district that Biden carried by 14 points elected a Republican by two points.

  4. A political backlash against Republicans in 2022 is possible, of course, but on the off chance that Democrats manage to hold the House and make gains in the Senate next year, there are Senate Democrats in addition to Manchin and Sinema who have said that they will not pack the Court even if Roe is overturned. Indeed, if the goal is putting an abortion right beyond the reach of legislatures, packing the Court would be a foolish and counterproductive response from abortion supporters. It would guarantee that Republicans would respond in kind the next time they control Congress and the White House. If Democrats control the House and have the votes to kill the filibuster in the Senate, a rational response would simply be to pass a federal law enshrining an expansive right to abortion.

  5. Most elected Democrats know that Court-packing is not only irrational, but politically poisonous. That’s why President Biden’s commission threw cold water on the idea, and why there are only two Democrats in the Senate co-sponsoring a Court-packing bill.

 

Law & the Courts

Joe Biden’s Mandates Aren’t Doing So Well in Court

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President Joe Biden delivers remarks on the coronavirus response and vaccinations during a speech at the White House, August 23, 2021. (Leah Millis/Reuters)

Joe Biden’s effort to use the federal government to mandate the COVID vaccine is not faring very well in the courts. In early November, the Fifth Circuit halted the Occupational Safety and Health Administration’s vaccine mandate almost as soon as it was announced. After hearing briefing and argument, it extended the stay. Now, we have a battery of additional decisions from the federal district courts.

Today, a federal judge in the Eastern District of Kentucky, Gregory van Tatenhove (a George W. Bush appointee), issued an injunction blocking the vaccine mandate for employees of federal-government contractors and subcontractors. The injunction applies throughout three states (Kentucky, Ohio, and Tennessee), the state governments of which were plaintiffs in the case. The court, citing the Fifth Circuit’s opinion in the OSHA case, was unconvinced that the Biden administration had the authority to do this:

While the statute grants to the president great discretion, it strains credulity that Congress intended…a procurement statute to be the basis for promulgating a public health measure such as mandatory vaccination. If a vaccination mandate has a close enough nexus to economy and efficiency in federal procurement, then the statute could be used to enact virtually any measure at the president’s whim under the guise of economy and efficiency…Although Congress used its power to delegate procurement authority to the president to promote economy and efficiency federal contracting, this power has its limits…If OSHA promulgating a vaccine mandate runs afoul of the nondelegation doctrine, the Court has serious concerns about the FPASA, which is a procurement statute, being used to promulgate a vaccine mandate for all federal contractors and subcontractors. [Bold added.]

Yesterday and today, federal judges in Louisiana and Missouri entered injunctions against vaccine mandates for the staff of 21 types of Medicare and Medicaid health-care providers, enacted by the Centers for Medicare and Medicaid Services (CMS) and planned to go into effect next Monday. Monday’s ruling was by Judge Matthew Schlep of the Eastern District of Missouri (a Trump appointee), and applies to ten states (Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming), all of which were plaintiffs in the case. Judge Schlep, too, cited the lack of statutory authorization:

While the Court agrees Congress has authorized the Secretary of Health and Human Services…general authority to enact regulations for the “administration” of Medicare and Medicaid and the “health and safety” of recipients, the nature and breadth of the CMS mandate requires clear authorization from Congress—and Congress has provided none…Courts have long required Congress to speak clearly when providing agency authorization if it (1) intends for an agency to exercise powers of vast economic and political significance; (2) if the authority would significantly alter the balance between federal and state power; or (3) if an administrative interpretation of a statute invokes the outer limits of Congress’ power. Any one of those fundamental principles would require clear congressional authorization for this mandate, but here, all three are present… [E]ven if Congress has the power to mandate the vaccine and the authority to delegate such a mandate to CMS—topics on which the Court does not opine today—the lack of congressional intent for this monumental policy decision speaks volumes. [Bold added.]

He also noted the long delay in issuing a mandate, which — as in the case of OSHA’s mandate — undercuts the Biden administration’s claim of urgency and its basis for acting in high-handed fashion without full consideration of comments from affected parties:

[T]wo vaccines were authorized under Emergency Use Authorization (“EUA”) more than ten months before the CMS mandate took effect, and one vaccine was fully licensed by the FDA well over two months before…[S]ince the onset of COVID, CMS has issued five…mandates, such as the one here; the most recent on May 13, 2021…One could query how an “emergency” could prompt such a slow response; such delay hardly suggests a situation so dire that CMS may dispense with notice and comment requirements…and the important purposes they serve.

The COVID pandemic is an event beyond CMS’s control, yet it was completely within its control to act earlier than it did…CMS looked only at evidence from interested parties in favor of the mandate, while completely ignoring evidence from interested parties in opposition…In fact, CMS foreclosed these parties’ ability to provide information regarding the mandate’s effects on the healthcare industry, while simultaneously dismissing those concerns based on “insufficient evidence.”…But facts do not cease to exist simply because they are ignored, and stating that a factor was considered is not a substitute for considering it. [Bold added; quotations and citations omitted.]

He further observed that “the failure to take and respond to comments feeds into the very vaccine hesitancy CMS acknowledges is so daunting” and found it irrational that “CMS rejected mandate alternatives in those with natural immunity by a previous coronavirus infection.” Should judges be flyspecking the reasoning of administrative agencies? Maybe if they stuck to ordering things they clearly had the power to order, that would be a fairer question.

Finally, today, Judge Terry Doughty of the Western District of Louisiana (a Trump appointee) enjoined the CMS mandate in the other 40 states. The nationwide scope of his injunction is more debatable, although fourteen states (Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, and Ohio) were before the court as plaintiffs, and the ruling is clearly properly tailored to the parties to the case. Judge Doughty is in the Fifth Circuit, so he felt himself bound by the similarity of the CMS mandate to the OSHA mandate. He was similarly critical of the process:

It took CMS longer to prepare the interim final rule without notice than it would have taken to comply with the notice and comment requirement. Notice and comment would have allowed others to comment upon the need for such drastic action before its implementation.

He was also unpersuaded that CMS had the authority to issue such far-reaching rules without anything resembling a specific authorization from Congress:

None of these statutes give the Government Defendants the “superpowers” they claim. Not only do the statutes not specify such superpowers, but principles of separation of powers weigh heavily against such powerful authority being transferred to a government agency by general authority…if the Government Defendants have the power and authority they claim (to mandate vaccines for 10.3 million workers), these government agencies would have almost “unfiltered power” over any healthcare provider, supplier, and employees that are covered by the CMS Mandate. If CMS has the authority by a general authorization statute to mandate vaccines, they have authority to do almost anything they believe necessary, holding the hammer of termination of the Medicare/Medicaid Provider Agreement over healthcare facilities and suppliers. [Bold added.]

We have a government of enumerated powers. Congress is supposed to make laws that are to be executed in enumerated ways. Assuming that it has such an extraordinary power as mandating that Americans take a vaccine, it should either pass a law to exercise that power, or at least pass a law that unambiguously delegates to the executive branch the decision when to exercise it. What we have seen instead is the Biden administration scouring the books for any law – no matter how general or how unrelated to the topic – that seems vague enough to cover the situation. We will see in the end how the Supreme Court resolves these issues, as it inevitably will. But we still have only one legislative branch, and it is not run by the president.

The Economy

Labor Negotiations Looming at West Coast Ports

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Shipping containers sit on the dock at a container terminal at the Port of Long Beach-Port in Los Angeles, Calif., April 7, 2021. (Lucy Nicholson/Reuters)

As if things couldn’t get any worse at our West Coast ports, it’s also a contract year for the International Longshore and Warehouse Union. The ILWU represents dockworkers at West Coast ports in the U.S. and Canada, including Los Angeles and Long Beach. The current contract expires in July 2022, and the ILWU rejected an offer to delay negotiations to 2023, the Wall Street Journal reported.

In sports, it’s conventional wisdom that athletes will try to perform better in contract years to justify a higher salary in free agency. In a perverse sense, the ILWU has done the same this year. Even as Los Angeles and Long Beach have ground to a halt with record numbers of ships waiting offshore, the ILWU has not given an inch on its opposition to automation, which is a key cause of the backups that are slowing down the nation’s entire economy. Congress went so far as to write into the bipartisan infrastructure law that the money appropriated for port improvement must be used for “human-operated equipment or human-maintained technology.”

Past contract negotiations in less fraught times have been knock-down, drag-out affairs. The Journal says:

During the talks that began in 2014 and dragged into 2015, dozens of ships backed up off Southern California causing delays that cost individual retailers millions of dollars in increased costs and lost sales. In 2002, employers locked out workers for 10 days at one point before President George W. Bush invoked the Taft-Hartley Act covering oversight of union activities to open up ports.

Before you shed a tear for the downtrodden, blue-collar dockworkers, consider this:

The average dockworker with more than five years’ full-time experience in 2019 earned almost $190,000. Several supervisors that year earned $500,000 or more. Benefit costs for most full-time dockworkers during the decade through 2019 increased to about $110,000 per worker from $82,500, according to PMA data.

One of the reasons those numbers are so high is that in past negotiations, terminal operators have exchanged modest moves toward automation for increased salaries. The ILWU has shed members in recent years, just as unions have nationwide. ILWU membership in 2001 was 37,000; today it’s 29,000. As long as ships are still backed up, longshoremen are crucial, so they have more leverage than normal.

But wait a minute: Longshoremen control how fast ships get unloaded, so they can make backups worse if they want to. And they have in the past. The tactic is called “hard-timing,” which a 2002 article in the Los Angeles Times describes as follows:

Cranes move at half speed. Paperwork gets lost. And break times are assiduously observed. All of it can create a backup of ships waiting to unload, triggering losses for cargo companies that can quickly climb into the millions of dollars.

Terminal operators characterize a union slowdown as a “strike with pay” and claim the tactic is routinely used by the International Longshore and Warehouse Union when contract talks stall.

The ILWU’s president, Willie Adams, has already told his members to put on their battle faces. The Journal reports:

The ILWU’s Mr. Adams, during an interview on a union-focused podcast called “The Docker” in August 2020, told dockworkers to save up money ahead of the forthcoming talks. “There may be a battle in 2022,” he said. “Be prepared.”

Rarely are concentrated benefits and dispersed costs so clearly on display. One union in one region of the country has the power to disrupt national supply chains to further enrich its already extraordinarily well-paid members. It has held back technological progress on our ports for decades and made them vulnerable to exactly the kind of problems we are currently experiencing.

Oh, and take a wild guess which party the ILWU Political Action Fund donates to.

Media

‘Alleged’

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(Prathaan/Getty Images)

“Alleged” is a funny word in journalism. Writers and editors believe, superstitiously, that it will confer legal protection on them. It doesn’t. If you write that X is an alleged child molester, it is going to matter a great deal who is doing the alleging. Is X charged with the crime? Is there public accusation of some sort? Police report? This matters, because any halfway indecent reporter can go out into the street and find a raving lunatic to allege anything about anyone. But if I write that somebody I don’t like is an alleged embezzler or an alleged neo-Nazi, and the only people doing the alleging are me and some random person with no special knowledge, then “alleged” won’t save me in court.

So I laughed a little when reporters writing about a shooting in my hometown—a shooting caught on video — described William Kyle Carruth as the “alleged shooter” of Chad Read. My friends at the New York Post ran a sequence of video captures of the incident, with the first caption describing Carruth’s “alleged shooting” of Read. Alleged shooting? The second one read: “Footage shows Kyle Carruth pulling the trigger and shooting Chad Read.” The third: “Kyle Carruth proceeds to lay down his rifle after shooting Chad Read.” The fourth: “Footage shows a wounded Chad Read laying on the ground after being shot by Kyle Carruth.”

That first “alleged” is looking a little lonely, and a little silly.

There are variations, too: The local newspaper, the magnificently named Lubbock Avalanche-Journal, described Carruth as “the man suspected of shooting” read. But no one has suggested that there is any question about whether Carruth shot the other guy. The question is whether it was a criminal act. We know who shot whom — no alleging necessary.

Weirdly, Lubbock seems to specialize in murders caught on video. In another case, 26-year-old Anthony Brad Resendez, who has been charged with murder, was described in the local paper as an “alleged shooter” after another incident that was recorded on video. In this case, too, there wasn’t any question about who shot whom, only a question about whether it was murder.

But our friends at NPR have outdone the usual print journalese, with Lakshmi Singh reporting today that police had seized an “alleged firearm” after an awful shooting. I think we can probably say with some confidence that the gun-looking thing that police identified as a gun at the scene of a shooting is, in fact, a firearm, rather than hedge our bets with “alleged firearm.” If it turns out that the gun-looking thing taken from the scene of the horrific shooting wasn’t a gun at all but a tactical tuna-fish sandwich, I will be very interested to read about it.

Health Care

The Counterproductive Authoritarian Fantasy of Just Forcing Americans to Get Boosters

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CNBC analyst Jim Cramer talks with a reporter at the NASDAQ Marketsite shortly after the opening bell in New York City in 2008. (Brendan McDermid/Reuters)

The hyperactive CNBC host and financial analyst Jim Cramer offered an eye-opening and rather unconstitutional proposal on his program, urging the federal government to require all citizens to get vaccinated or demonstrate their proof of exemption in court, and to have the vaccination program run by the U.S. military.

JIM CRAMER, CNBC: With the new Omicron Variant sweeping the globe, how do we finally put an end to this pandemic? How do we save lives and get business back to normal so everybody can put dinner on the table?

Simple, the federal government needs to require vaccines, including booster shots, for everyone in America by, say, January 1st.

There are still some things that need to be done at a national level and this is one of them. But as we brace for another wave of new deaths, it’s time to admit that our government has lost the ability, or the will, to make our people do the right thing. Nobody wants to be the bad guy, so we’ve allowed a pastiche of uncoordinated health organizations to dictate an on-again, off-again series of measures that mostly just leave us baffled and confused.

We haven’t centralized the issue to the point the White House seems to take responsibility.

…It’s time to admit we have to go to war against Covid. Require vaccinations universally. And have the military run it. If you don’t want to get vaccinated, you better be ready to prove your conscientious objector status in court, and even then you need to help in the war effort by staying home until we finally beat this thing.

SARS CoV-2, the virus that causes COVID-19, is going to be around in one form or another for a long while. Roughly 44 percent of the earth’s population is still waiting for their first shot of any vaccine.

Vaccination protects you from hospitalization and death, but the vaccines’ effectiveness will wane after a while. We don’t know exactly when; besides factors such as age and comorbidities, the immune system’s ability to fight off versions of the virus varies significantly from one individual to the next.

There’s a chance that at some point, a variant of the virus may emerge that our vaccines aren’t as effective in fighting. It’s theoretically possible, but not likely, that some variant may emerge that the current vaccines aren’t effective against at all.

At this point, it’s far too early to tell if the Omicron variant is significantly different enough from other versions of the virus to require new, different versions of the existing COVID-19 vaccines.

Drugmakers such as Moderna are already working on new vaccines specifically designed to work against the Omicron variant. Pfizer and BioNTech said they could develop an Omicron-specific vaccine within six weeks and ship initial batches within 100 days if needed.

When a booster or a new version of the vaccine becomes available, some Americans will eagerly be first in line. Some Americans will procrastinate a bit but eventually get around to it. Some Americans will want to see how others react to it before getting it themselves. And some Americans will refuse to get it entirely.

Public-health officials and elected officials should read those four sentences again and commit them to memory. There is no scenario in which every American quietly and obediently lines up and gets their newest round of shots just because the government tells them they must do it. You have to encourage and persuade everyone who is persuadable, and hope the rest encounter some experience or trusted figure who changes their mind. We cannot punish our way to greater vaccination rates, and declaring that “the military is taking over this whole thing” is a counterproductive authoritarian fantasy.

If COVID-19 is going to be around in one form or another for the next few years, and we require regular boosters to ensure that our bodies can effectively fight off the virus, then we will be running vaccination programs continuously, indefinitely. This will require us to be understanding of people’s vaccination fatigue and to patiently explain why another booster is needed. After all, the official guidance and assessments of the experts can change pretty quickly:

Those two former FDA officials are still not convinced, writing in the Washington Post yesterday, “the data does not show that every healthy adult should get a booster. Indeed, the push for boosters for all could actually prolong the pandemic. First, such a campaign diverts focus away from the goal of persuading the unvaccinated to get their shots (and persuading parents to get their eligible children shots). Second, and relatedly, exaggerated descriptions of the waning efficacy of the vaccines undermine public confidence in them, and some people may be less likely to accept vaccines that they regard as less effective than originally advertised.”

This doesn’t mean that Krause and Gruber are right, or that boosters are not a good idea. It does mean that the bumper-sticker slogan “follow the science!” is meaningless because bright, well-informed scientists disagree on the best course of action.

Finally, if the definition of “fully vaccinated” is changing before our eyes — as Ron DeSantis accurately predicted — this illustrates the absurdity of a government mandate attempting to get the unvaccinated or insufficiently vaccinated fired from their jobs for not meeting a particular deadline. And it appears even the Biden administration can see that now, declaring that despite the previously stated deadline of November 22, unvaccinated federal workers will not face unpaid suspensions or firing, until at least early next year.

Politics & Policy

Biden’s Lockdown Answer

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In response to President Biden: Lockdowns Are Off the Table, ‘For Now’

As Jim Geraghty noted, yesterday President Biden responded, “Yes, for now,” when asked whether lockdowns are “off the table.” Critical attention has focused on that ominous “for now.” Here’s how Biden should have answered: “Obviously, I do not have any legal authority to impose a lockdown on the country. Remember when the previous president said he had ‘total authority’ over lockdowns and everyone said he was being either ridiculous or scary? The president’s powers haven’t changed since then. It’s not my table to set.”

White House

On COVID, President Biden Needs Normal Friends

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President Joe Biden takes off his mask in the Roosevelt Room of the White House in Washington, D.C., May 13, 2021. (Kevin Lamarque/Reuters)

I wrote yesterday that President Biden is “hamstrung” on COVID-19 in part because he has “allowed himself to be captured by monomaniacal, neurotic, agoraphobic pantywaists.” And, right on cue, the Washington Post demonstrates what I was talking about:

President Biden and his aides have long asserted that ending the pandemic would revive his political fortunes, as Americans give him credit for lifting covid’s threat and begin to appreciate his other accomplishments, from climate to infrastructure.

And yet:

“We’re never going to go back to normal. Personally, I don’t think I will ever get on a plane without wearing a mask,” said Patti Solis Doyle, a Democratic strategist who worked closely with Biden during the 2008 presidential campaign.

This is a ridiculous and irrational thing to say. And, unfortunately for Biden, it’s typical of the sort of people with whom he spends his time. There is scant reason to wear masks on planes even now, let alone once the pandemic is over. And who, pray, is the “we” in “we’re never going to go back to normal”? If Patti Solis Doyle wants to live her life like that, good luck to her. But does she really think everyone else is itching to join her? If, tomorrow, you told a plane full of Americans that they no longer needed to wear their masks, how many do you think would still have them on by the time you’d hung the intercom back on its hook? Twenty? Ten? Three?

With friends like these, Biden’s recovery will be a slog. If, that is, he can ever get “back to normal” at all.