Stromata Blog

Abraham Lincoln, Mark Tushnet and Dred Scott

You may have heard of an “open letter” to the Biden Administration, co-authored by Mark Tushnet, an emeritus professor at Harvard Law School (self-described socialist and advocate of scorched earth progressivism), and San Francisco State University political science professor Aaron Belkin (whose self-description is “scholar, author, activist and dancer”), urging the President to “to restrain MAGA justices immediately by announcing that if and when they issue rulings that are based on gravely mistaken interpretations of the Constitution that undermine our most fundamental commitments, the Administration will be guided by its own constitutional interpretations”. If that screed is news to you, you can read critiques here and here and here and many other heres.

Professors Tushnet and Belkin call their stance “Popular Constitutionalism” (a peculiar label, given that one of their main targets is Students for Fair Admissions v. Harvard, a decision that the populace strongly approves). That doctrine, they say, “has a proud history in the United States, including Abraham Lincoln’s refusal to treat the Dred Scott decision as a political rule that would guide him as he exercised presidential powers”. That is true in a mushy sort of way, but not the way that the professors assert. They see it as justification for massive resistance.

For example, President Biden could declare that the Court’s recent decision in the affirmative action cases applies only to selective institutions of higher education and that the Administration will continue to pursue affirmative action in every other context vigorously because it believes that the Court's interpretation of the Constitution is egregiously wrong.

That recommendation is a trifle odd. The only colleges that aren’t “selective” are those that admit all applicants; by definition they don’t practice affirmative action. It seems unlikely, too, that the professors contemplate drawing an arbitrary line between the most selective tier and the rest. They surely aren’t demanding that Harvard be cut off from the federal money spigot. Any concession that SFFA v. Harvard applied to anyone would be for display purposes only, a thin cover for an all-out push for continued discrimination.

That brings us to Abraham Lincoln, whose views on responding to Dred Scott v. Sandford are worthy of consideration. Lincoln did indeed declare forcefully that the decision was bad law. His principal statement on what its opponents should do about it was set forth in an address that he delivered on June 26, 1857, in the course of his campaign for the Senate:

Judicial decisions have two uses – first, to absolutely determine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise. For the latter use, they are called "precedents” and “authorities.”

We believe, as much as Judge Douglas, (perhaps more) in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this. We offer no resistance to it.

Lincoln was replying specifically to his opponent, Stephen Douglas, who had argued that, once the Supreme Court decides a question, “forc[ing it] upon the country as a political issue” is “a deadly blow at our whole Republican system of government”. Lincoln disagreed.

If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.

But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country.

Lincoln could have been speaking for those who believed that Roe v. Wade and the Court’s equivocal pre-SFFA affirmative action jurisprudence were “wanting in all these claims to the public confidence”. Those critics didn’t treat those decisions as “settled doctrine”, but they also didn’t defy them. States enacted laws placing restrictions on abortion, many of which the Court found to be permissible. Congress forbade spending federal funds to procure abortions in most circumstances. That law, too, the Court upheld. With regard to affirmative action, several states, including such liberal bastions as California and Washington, outlawed racial preferences in higher education by the vote of the people. All of those were acts that Lincoln would not have regarded as “factious” or “even disrespectful”.

If Professors Tushnet and Belkin advocated that species of resistance, both sexes of goose are entitled to the same sauce, but their rhetoric makes it clear that they have in mind something more vigorous. Their spirit is more Ross Barnett and Orval Faubus than Abraham Lincoln.

The Next Trump Indictment: Clarity Starts to Emerge

I had been waiting for Andy McCarthy to weigh on Donald Trump’s announcement that he is about to be indicted again by special counsel Jack Smith for something or another. Now he has (behind NRO’s pay wall, unfortunately), and, as usual, he shines light into murky corners. In particular, he suggests a possible basis for the indictment that, unlike charges stemming from the ex-President’s alleged role in the Capitol rioting, makes sense and raises no Constitutional issues.

It is said that the Trump campaign raised tens of millions of dollars on the representations that the money would go to a legal fund that would fight the election fraud by which Trump claimed the election was being stolen. Yet, at least according to the January 6 committee (see, e.g., final report at p. 770 & ff.), there was no such fund and at least some of the money was diverted to other purposes (such as, the New York Times reports, more than $200,000 spent at Trump hotel properties).

If Smith can prove that, then he is in the ballpark of traditional fraud.

“In the ballpark” rather understates the case. If this accusation is true, Mr. Trump’s conduct is unconscionable, a betrayal of his most loyal supporters that was evidently motivated by simple greed. Exposing it and sending the perpetrator to prison would be an act of justice and would also, as Mr. McCarthy goes on to note, have other beneficial effects:

To be sure, if [Smith] has decided to go down that road, the next Republican Justice Department is going to be spending a great deal of time scrutinizing what Democrats and their allied outfits such as Black Lives Matter actually do with the goo-gobs of money they raise for this or that stated cause. But if past is prologue, progressives and other anti-Trumpers do not concern themselves with the unintended consequences. What matters is nailing Trump – especially if you can get Republicans to nominate him in the process.

It’s possible, though, that the special counsel will shy away from taking this clear and direct course and will instead rely on dubious theories of “obstruction of Congress” and “fraud on the government” that have fared poorly in the courts on other occasions. Alleging financial fraud has two potential drawbacks from the Democratic Party’s point of view:

First, the January 6th committee’s claims about Trump’s conduct may be false. Nothing about that body (to call it a “kangaroo court” insults marsupials) inspires confidence in the accuracy of its findings. If Trump really did establish a legal fund and pursue bona fide efforts to expose election fraud, not even the most Javert-like prosecutor in the most favorable of venues will have much chance of securing a conviction.

Second and more important, supposing that the fraud charges are true and their truth becomes manifest, a key element of the Democratic strategy for the 2024 Presidential electinn, namely, ensuring that Donald Trump is the Republican Party’s nominee, is likely to fail. It’s hard to believe that even the most fervent forever-Trumper will retain his admiration for a grifter who tried to cheat him out of his money.

Perhaps the special counsel can maneuver around these pitfalls. Until the trial begins, the existence vel non of the alleged fraud will be uncertain. The accusation can be kept in front of the public, and Trump zealots can continue to portray their hero as a martyr to the Deep State.

What the health of our country’s politics most demands (and, alas, is not too likely to get) is not the imposition of criminal liability but an immediate presentation of the evidence of fraud. If Donald Trump is demonstrably a liar and thief, it is more important that the public know that as soon as possible, so that he can be exiled from political life, than that he undergo legal punishment. The same is true, of course, of the Democratic Party’s prospective 2024 candidate. Both parties’ slates need thorough disinfection.

An Indictment That I Won’t Believe Even After I See It

Donald Trump has announced that he expects to be indicted soon for his role in the Reichstag fire riot at the Capitol Building in January 2021. Per the Epoch Times:

Former President Donald Trump said that he received a letter on July 17 informing him that he is a target of the special counsel investigation of the Jan. 6 Capitol breach.

Mr. Trump said the Sunday letter from special counsel Jack Smith gave him four days to report to a grand jury. In a message posted on his social media platform, Truth Social, the former president suggested that the short deadline may mean he would be arrested and indicted.

Mr. Trump called the letter “HORRIFYING NEWS for our country” and framed it with the backdrop of the two other indictments he is facing amid a heated presidential reelection campaign in which he dominated the GOP field.

Well, maybe special counsel Jack Smith has uncovered evidence, hitherto unknown, that Mr. Trump directed the actions of the cosplay insurrectionists. As Andy McCarthy has pointed out, the seditious conspiracy indictments on which the government won convictions earlier this year rejected that theory.

It is not enough to say that the government did not allege that Trump directed the Proud Boys, and that the government never alleged that Donald Trump was an unindicted coconspirator in the Proud Boys prosecution. In fact, prosecutors fought off the defendants’ self-serving attempts to argue that they were being used as scapegoats for Trump and others wielding power.

All that the then-President did – and it was disgraceful enough – was make a rabble rousing speech and sit idly by when it had consequences that he may or may not have foreseen or intended. Long ago, in Brandenburg v. Ohio, the Supreme Court set very stringent criteria for punishing even the open advocacy of illegal acts. In the words of the Court’s syllabus summarizing its unanimous decision:

Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

To my mind the likelihood is nil that an experienced prosecutor would expect an indictment based on Trump’s speech to the January 6th crowd to lead to a conviction. If one is in fact handed down (again, assuming no newly found evidence of a Trump-led conspiracy), it will be a political rather than a legal document, put forth in the hope of affecting the next election and with the sure knowledge that it has no chance of passing muster with the courts.

As a political act, an indictment would serve the Democratic Party’s purposes well, as it would validate Donald Trump’s claims of martyrdom and all but guarantee his nomination as the Republican Presidential candidate, to be followed by his all but guaranteed defeat. That would be an odious and dangerous game for Mr. Smith to play, though I suppose that we have entered an era in which nothing is unimaginable.

Abortion, the Sacrament of the Left

The House of Representatives has passed a Defense authorization bill that, if enacted, would end the Pentagon’s policy of free abortions for service members and their families. In response, a spokesman for the National Security Council has declared that access to abortion is “a foundational sacred obligation”.

So much for separation of Church and State.

Get Ready for Massive Resistance

Suppose that, on the day after the Supreme Court decided Brown v. Board of Education, President Eisenhower had declared that the Court had “walked away from decades of precedent” and that he would not “let this decision be the last word”, had gone on to propose a “new standard” that would keep segregation in place de facto while nominally complying with the Court’s ruling, and had added, in response to a reporter’s question, “This is not a normal court.”

That was the essence of President Biden’s reaction to Students for Fair Admissions v. Harvard, the Court’s latest affirmation of the principles of the Fourteenth Amendment. “We cannot let this decision be the last word. I want to emphasize: We cannot let this decision be the last word.”

What did the President propose as the alternative to the Supreme Court’s “last word”? His tactic for evading the decision is as flimsy as those of the Southern governors in 1954. Here is the Presidential “guidance” for schools that are determined to continue making race a major factor in admissions decisions:

They should not abandon their commitment to ensure student bodies of diverse backgrounds and experience that reflect all of America. What I propose for consideration is a new standard, where colleges take into account the adversity a student has overcome when selecting among qualified applicants. Let’s be clear, under this new standard, just as was true under the earlier standard, students first have to be qualified applicants.

The President defines applicants as “qualified” if they have –

the GPA and test scores to meet the school’s standards. Once that test is met, then adversity should be considered, including students’ lack of financial means, because we know too few students of low-income families, whether in big cities or rural communities, are getting an opportunity to go to college.

That is dim even for a Biden. “Adversity” is a conveniently subjective standard, and there is no obvious reason why those who haven’t been “lucky” enough to experience it ought to be put at a disadvantage. Sometimes obstacles call forth resources of character and lead to extraordinary achievement. (Clarence Thomas, descendant of slaves, born into an impoverished backwater community where English was a foreign language, is a shining example.) But sometimes, sadly, they leave those who undergo them ill-prepared for the challenges of a top-tier university.

A university that gave “adversity” the weight that Harvard gives to membership in a favored minority would make sob stories a valuable asset for applicants. A study of admissions data for Harvard and the University of North Carolina, obtained through discovery in the Students for Fair Admissions case, found that –

At Harvard, the admit rates for typical African American applicants are on average over four times larger than if they had been treated as white. For typical Hispanic applicants the increase is 2.4 times. At UNC, in-state African Americans’ admit rate is over 70% higher. For out-of-state applicants, the increase is more than tenfold.

As a striking example, a student of Asian descent in the top decile academically had a lower chance of admission to Harvard than a black applicant in the fourth-lowest decile.

One may be confident that, were the Biden standard to be adopted, “advisors” of the “Varsity Blues” ilk would soon be helping ambitious parents craft tales of youthful suffering that would make David Copperfield’s childhood seem idyllic.

There would also be an ironic consequence. Another of the cited study’s headline findings was, “At both institutions, racial preferences are larger for those from more advantaged backgrounds.” To the extent that the new regime continued to favor racial minorities, it would push upper- and middle-class children to the back of the admissions queue. The unjustifiable favoritism that they have hitherto enjoyed would turn into an equally unjustifiable handicap.

I presume that college administrators will come up with cleverer work-arounds than Joe Biden’s speech writers. No doubt we are in for a period of “massive resistance” of the kind that greeted Brown. We may hope that the Supreme Court will remain as firm now as it did then.

Note: The original version of this post was written before a transcript of President Biden’s statement was available. I relied on a CBS News report for details. I have now made some not too material revisions.

Further reading: Jonathan Turley, “Biden’s ‘Normal’: The President’s Constitutional Takes are Becoming More Unhinged from History”
Paul Caron, “Legal Education’s Reaction To The Supreme Court's Affirmative Action Decisions”

A Rather Simple Scandal

Is there a “Biden Crime Family”? Two House Oversight Committee staff reports (March 2023 and May 2023) reveal that communist-controlled Chinese companies and other unsavory entities and people paid millions of dollars to close relatives of Joe Biden while he was Vice President and thereafter. Recipients included, among others, Mr. Biden’s son, brother, sister-in-law, and three current or former daughters-in-law. The payments were remitted via a series of limited liability companies whose only apparent reason for existence was to shuffle funds from one Biden to another.

There has so far been no dispute about those facts. The Oversight Committee obtained them from subpoenaed bank records, some of which the May report reproduces (with redactions of sensitive information). The only issue is what to make of them. Are they records of income from innocent business activities or evidence of a large-scale influence peddling scheme or something in between?

The innocent explanation is that the President’s son Hunter and brother Jim rendered valuable services to overseas clients, were paid what their services were worth, and passed some of the proceeds to objects of their bounty. Hunter is a lawyer, as well as a crackhead and putative artist, while Jim –

has cycled over the years from nightclub owner to insurance broker to political consultant and fundraiser to startup investor and construction company executive. But the through line of his resume was his bond with his brother, a Democratic Party stalwart in a position to push legislation or make government contracts happen.

“My sense is that Jim really has been trying to peddle himself on the Biden name for some time,” said Curtis Wilkie, who covered the Bidens as a Delaware political reporter.

(That assessment comes not form Fox News or the Washington Examiner but from the left-wing investigative site ProPublica.)

The likelihood that any of the other recipients has ever done anything that was worth as much as a tiny fraction of a million dollars is vanishingly small.

If the Biden duo was paid fairly for legitimate services, the nature of those services is at this point unknown. Matters could be cleared up quickly through disclosure. If none is forthcoming, it might not be unreasonable to suspect that something is amiss, particularly in view of the opaque channels through which money flowed from the payors to the ultimate beneficiaries.

The semi-innocent explanation is that Hunter and Jim were paid for their perceived political influence but didn’t deliver anything. In brief, they cheated Chinese and other foreigners out of millions of dollars, but the whole escapade was their own frolic and detour; Joe Biden played no role in it. This appears to be the position of pro-Biden commentators, which they support by citing the absence of evidence that Joe Biden himself received any money.

Since the Bidens’ activities continued for years, this explanation assumes that the victims of their scheme were thick-headed dolts. They paid and paid and received nothing and continued paying.

The non-innocent explanation is that Joe Biden was well aware of the “family business” and cooperated in furthering it. Whether he took a share of the profits for himself is irrelevant.

Far be it from me to pass judgment without the benefit of more data, but it seems clear at this point how the balance of probabilities tilts.

Further Reading: Jonathan Turley, “America’s state media: The blackout on Biden corruption is truly ‘Pulitzer-level stuff’”

Getting the Trans to Run on Time

I swiped the idea for this post’s title from Steven Hayward, who reads tweets by people who don’t know X from Y and are proud of it, so that the rest of us don’t have to. Quite remarkably, the transtweeters whom Mr. Hayward cites are mad at the Biden Administration for “legitimizing transphobia”.

What the Administration did was publish a proposed regulation declaring that schools presumptively violate Title IX of the Education Amendments Act of 1972 and thereby lose their eligibility for federal funds unless they allow males and females to play on the same sports teams. The obvious intent is to counter state laws protecting the right of girls and women to play on a level field with competitors of the same sex. Since the whole point of Title IX is to give women greater opportunity in sports, it might seem like like a self-evident violation of the statute to set up a nominal women’s event, then let men enter and dominate it. But we live in strange times. The high priests of wokery believe, with all the fervor of priests of Moloch, that the right worship of the great idol Bostock demands that males who can’t win against other males be granted the right to enter the lists against women.

The document containing the proposed regulation devotes 99.14 percent of its wordage to bowing before Bostock. In the course of their homily, the priests insist that they are taking a reasonable middle ground. The accompanying press release states emolliently:

The proposed rule would establish that policies violate Title IX when they categorically ban transgender students from participating on sports teams consistent with their gender identity just because of who they are. The proposed rule also recognizes that in some instances, particularly in competitive high school and college athletic environments, some schools may adopt policies that limit transgender students’ participation. The proposed rule would provide schools with a framework for developing eligibility criteria that protects students from being denied equal athletic opportunity, while giving schools the flexibility to develop their own participation policies.

The proposed rule consists of a single paragraph, from which schools are to divine “a framework for developing eligibility criteria”:

If a recipient [of federal educational funding] adopts or applies sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female team consistent with their gender identity, such criteria must, for each sport, level of competition, and grade or education level: (i) be substantially related to the achievement of an important educational objective, and (ii) minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.

Is there any way to satisfy those standards? The preamble to the proposal says this about the meaning of “important educational objective”:

The Department recognizes that prevention of sports-related injury is an important educational objective in recipients’ athletic programs and that – as courts have long recognized in cases involving sex-separate athletic teams – fairness in competition may be particularly important for recipients in some sports, grade and education levels, and levels of competition. The Department anticipates that some uses of sex-related eligibility criteria would satisfy the standard in the proposed regulation in some sports, grade and education levels, and levels of competition. [emphasis added]

Whoever wrote that paragraph should be dragooned into a one-on-one basketball game with Stephen Curry. Fairness in competition is the essence of sports. Unfair competition is bullying or war. Deliberately entering a contest against outmatched opponents is the essence of bad sportsmanship, and a man who, unsatisfied with his mediocre skill at swimming or track or tennis, declares himself a woman so that he can collect goat feathers for undeserved triumphs is a cad and a bounder, qualities that educational institutions ought not to be encouraging.

The regulation writers obviously disagree with the idea that sportsmanship is an “important educational objective” of all school sports, for every “sport, level of competition, and grade or education level”. Note, too, the word “recipients”. The standard of an “important education objective” is apparently whether it has value to the entity that is receiving federal largess. The interests of the students have nothing to do with it. I don’t think that it’s too cynical to foresee that the educrats will approve sex-distinct women’s teams that bring in money, as in college women’s basketball, and demand adherence to gender identity ideology for women’s events that are less remunerative, like swimming and track and practically all the rest.

In brief, the proposed regulation is perfectly attuned to the Biden Administration’s trans-extremism. Yet it isn’t enough for at least some of the President’s allies. Once reason is abandoned, impulse and emotion are never content. Bostock is jealous and implacable.

The Great Distraction

During my absence from this blog (occasioned by the demands of paying work), the news has been even more ominous than usual:

• Our Second Cold War adversaries, Communist China and Russia (same as the First Cold War, with the senior and junior adversaries reversed), have shattered the anti-Iran front that has long been a pillar of U.S. Middle East policy by brokering a reconciliation between Saudi Arabia and Tehran.
• Meanwhile, President Biden barged into the politics of America’s other Middle East pillar, Israel. Not only did he announce his opposition to proposed judicial reforms and declare that he would shun Israel’s prime minister for an indefinite period, but the U.S. ambassador to Israel took a leading role in coordinating the anti-reform campaign. I’ll forgo discussion of the merits of the proposals, which now appear to be stalled. John Podhoretz has penned an informed discussion of the political background, showing inter alia how aberrant it is to claim that Israel’s governing coalition is flouting, rather than practicing, democracy.
• Notwithstanding the array of Ukrainian flags on Twitter feeds, the Russo-Ukrainian War has ground to a stalemate, as the Biden Administration continues its dual policies of fervent rhetorical support for Kiev and tardy, desultory action.
• Silicon Valley Bank and Signature Bank, two significant if not gigantic institutions, have collapsed. They were the victims of either inflation or a preference for left-wing politics over sound banking practices. However that may be, the federal government reacted with a de facto extension of insurance coverage to all bank deposits, the equivalent of a fire insurance company’s announcement that it’s fine to scatter oil-soaked rags around your house while smoking cigarettes. Either this is a moral hazard blunder that will lead to more bank failures in the future or</.em> it is a special deal for politically connected bankers that won’t be repeated when community banks in flyover country experience runs. Either alternative is unsettling.
• A mob of thugs who have somehow been admitted to Stanford Law School shouted down a federal judge who had been invited to speak to the campus Federalist Society chapter. The dean in charge of diversity, equity and inclusion (who else would it have been?) sided with the hooligans, warning the judge to consider whether, when it comes to freedom of speech, “the juice is worth the squeeze”. That ought to be the metaphor to be pondered by the “students”: Is the joy of harassing heretics worth the squeeze of expulsion? But, needless to say, none of them will receive any punishment more severe than being required to attend a half day seminar on the First Amendment, at which they will jeer.
• Nashville was the site of what may have been our country’s (and probably the world’s) first incident of “stochastic terrorism”. That’s an idea that has been floating around the Left, to wit, that disagreeing with leftists leads mentally ill individuals to target the persons disagreed with. The theory’s proponents overlook two points: First, there’s no reason why disagreeing with conservatives or moderates wouldn’t have the same effect. Second, the more hysterical the cause, the more plausible the effect. There’s currently no cause more given to hysterical overstatement than “transgender rights”. A few days ago, a psychotic young female who desired to demonstrate that she was really a male (and a toxic male at that) massacred six human beings of both sexes who taught at or attended a Christian school. Thus we see the chain leading from rabid denunciation through mental illness to murder of the denounced. It’s worth noting that the anti-biology zealots have rushed to declare that the “trans community” is the real murder victim. If “stochastic terrorism” is something real, won’t that narrative beget the next slaughter?
• Oh, by the way, the trustees of the Social Security System have released their annual report, which is as gloomy as ever. The time when either benefits will have to be slashed or taxes hiked is a year closer. The somewhat misnamed Center on Budget and Policy Priorities assures us that there’s nothing much to worry about: Full benefits are safe until 2035 (or maybe 2034), and that’s a dozen years away. Something will turn up, as financial wizard Wilkins Micawber used to say.

Well, then, as I emerge from my burrow, what is everyone talking about? Former President Trump has been indicted for what is, to all appearances, conduct that no one even pretends would be criminal if committed by anybody not named Donald John Trump. That’s not good, but Mr. Trump is hardly the first public figure to be subjected to unmerited prosecution. Franklin Roosevelt’s minions devoted thousands of hours of effort and millions of dollars of tax money to trying to jail Andrew Mellon. More recent the farcical indictments of John Connolly, Ray Donovan and Tom DeLay (and Senator Ted Stevens, whose conviction was obtained through prosecutorial misconduct). Before declaring that America’s Constitutional order has broken down, perhaps we see how our judicial system operates under pressure. Mr. Trump isn’t without resources. He can defend himself and doesn’t need for every amateur lawyer in the county to weigh in on his case.

China, Russia, the Middle East, Israel, Ukraine, the banking system, enemies of reasoned discourse, looming financial commitments that our country lacks the resources to meet: Those deserve more attention, I think, than the legal tangles of a billionaire.

What the Student Debt Story Tells Us

Business Insider, an anti-capitalist web site, has posted a screed designed to make what its socialist-leaning editors think is a telling point in favor of President Biden’s attempt to forgive student loans through the exercise of his caudillo authority: “The Supreme Court justices deciding whether to end Biden's student loan relief program paid an average of $42,539 to go to college. Today, they'd have to pay around $320,531.”

Anyone old enough to have been a college student in the 1960’s or 1970’s doesn’t need to be told that higher education costs have inflated at a much faster rate than almost any other expense. In my freshman year at Yale, tuition, room and board cost $2,800. Today, the price is around $70,000. The increase is approximately three times the rise in the cost of living over that period.

Business Insider’s scarcely veiled subtext is that the Justices lack empathy with students who, knowing the prices that their colleges were charging, financed their educations by taking on huge debt burdens. It would be more sensible to ask why education has grown so much more expensive. Has there been vast improvement in the quality of the product that universities deliver? (pause to let the laughter die down)

There are two glaringly obvious reasons for the price spiral. First, the federal government has freely poured vast sums of money into subsidizing higher education, without any regard to what students were getting in return. Because financial aid and low-interest loans have been so widely available, colleges have been able to charge more. The profits have by and large been used to pad endowments and hire phalanxes of administrators, not for any purpose that would improve students’ return on their educational investments.

Second, the drumbeat of propaganda for universal college attendance has increased demand. Adolescents who in an earlier era would have entered the job market, married and started families now spend several years going through the motions of paideia, emerging with a meaningless credential and often without even that.

One doesn’t need a Ph.D. in economics to figure out that meeting increased demand with an expanding supply of dollars leads to escalating prices. That is the moral of the student debt story.

Photo of the Day

A friend sent me this no-doubt-authentic Air Force photograph:

Put Not Your Trust in Serial Liars

Seymour Hersh, whose deceit-filled journalistic career is replete with “bombshell narratives” based on unidentified sources (in D.C. circles, it is generally believed that only the anonymous tell the truth), has a new narrative to bedazzle the gullible: “that Navy divers, operating under the cover of NATO’s annual BALTOPS exercise last June, planted remotely-operated explosives that were detonated months later, last September” and thereby put the Nord Stream pipelines out of operation for an indefinite period.

Right-of-center commentators who ought to blanch at the name “Hersh” have picked this story up with minimal skepticism (e. g., “BOMBSHELL: Yep, It Looks Like Team Biden Blew up Europe’s Nord Stream Pipeline”), presumably because the story makes the Biden Administration look bad (albeit cunning and competent, the first indicator that it’s all make-believe). The post under the headline just cited concludes:

In the reader comments a while ago, I responded to one reader with something like, “This is exactly the kind of stupid move the kids in the White House might think is really clever.”

Hersh is not always the most reliable source, but between Nord Stream and Keystone XL, it’s fair to ask: What does this administration have against energy pipelines, anyway?

Many comments on that post and on an Instapundit item linking to it took it for granted that of course the sabotage must be “Team Biden’s” doing. Some even applauded it.

Now, I yield to no one in my confidence in the ability of the incumbent Administration to act foolishly, but Hersh’s tale stretches credulity beyond the snapping point.

According to Hersh, “the planning took place late in 2021 and into the first months of 2022”, that is, after President Biden had waived sanctions on companies that were constructing Nord Stream 2, thereby making it possible for that pipeline to be completed, and before the Russian invasion of Ukraine.

Hersh has an elaborate and unbelievable explanation of why, having forgone the easy route to blocking Nord Stream 2, the Biden Administration decided to destroy it secretly. To add to the implausibility, an inter-agency task force – evidently of considerable size, “men and women from the Joint Chiefs of Staff, the CIA, and the State and Treasury Departments” – discussed and approved the operation. Some of those in the know were, according again to Hersh, strongly opposed to it. Nonetheless, it remained a deep, dark secret in leak-rampant Washington, D.C. until an unknown person told his story to Seymour Hersh months after the fact.

That putative source is, by the way, well-informed about every aspect of the project’s planning and implementation. There was seemingly no concept of limiting information to those with a need to know. The source knows the details of debates among the planners, of discussions with the Norwegian navy, of the way in which the bombs were planted and detonated, and so on. The Houston Astros had better operational security.

Mr. Hersh has, in short, written the scenario for a thriller rather than a credible account of events that happened in real life. This isn’t his first time. He has not with age become less of a monger of hate-America fiction.

Further Reading: Jim Geraghty, “Joe Biden, the Unilateralist Cowboy Warmonger? Really?”, rounds up more reasons to relegate Hersh’s story to the shelf reserved for fairy tales.

The Crimean Conundrum

Here is an interesting report, dated yesterday:

President Joe Biden announced on Wednesday that the U.S. would for the first time send 31 of the sophisticated [M1 Abrams] tanks to aid Ukraine’s war effort. Speaking anonymously during a press briefing, a senior administration official acknowledged that those tanks could roll on Crimea.

“We want to make sure that [the Ukrainians] have the capabilities to not only defend themselves against the Russian onslaught … but also that they have the ability to retake, to reclaim their sovereign territory, and that means everything that is recognized by international borders,” the official said.

The official was asked to clarify whether they meant retaking territory in Crimea or in Ukraine’s eastern Donbas region, where Russia purported to annex several areas last year.

“Crimea is Ukraine,” the official responded. “We’ve never recognized the illegal annexation of Crimea. But where the Ukrainians decide to go and how they decide to conduct operations in their country, those are their decisions to make.”

That “senior official” may be an outlier. The Biden Administration’s enthusiasm for Ukrainian victory seems to wax and wane unpredictably. The decision to equip Ukraine with our top-of-the-line armored fighting vehicles followed days of insistence that the country’s armed forces didn’t need and couldn’t effectively use M1’s. Still, the quoted statement raises a question that isn’t often addressed but will need to be answered if the current war is to come to a satisfactory conclusion: What should happen to Crimea?

Neither Ukraine nor Russia has strong historical ties to the peninsula. After the Mongol invasions in the 13th Century, it fell under the rule of the Golden Horde, then of the Ottoman Empire, then, briefly, of an independent Crimean Tatar state. In 1783, Catherine the Great annexed it to the Russian Empire. During the Russian Civil War, it was a White bastion under a democratic Tatar regime. After the Bolshevik triumph, it became the “Crimean Autonomous Soviet Socialist Republic”. Agriculture was collectivized with the usual communist brutality. The Tatars were subjected to forced Russification. During World War II, they were deported en masse to the Russian far east. After the war, the “autonomous republic” was demoted to an oblast.

In 1954, Nikita Khrushchev transferred Crimea from the Russian Soviet Federated Socialist Republic to the Ukrainian Soviet Socialist Republic, an action of zero political significance. It wasn’t a recognition of any Ukrainian character. According to the 1959 census, ethnic Ukrainians made up only 22 percent of the population.

In the referendum on Ukrainian independence in December 1991, Crimea had the lowest voter turnout (68 percent versus 84 percent for Ukraine as a whole) and the lowest percentage of “yes” votes (57 percent in Sevastopol, 54 percent in the rest of Crimea; next lowest voting district was 83.9 percent). Those figures suggest tepid enthusiasm for the Ukrainian connection.

In 1992, the Crimean parliament voted to declare independence from Ukraine, then retracted the declaration the next day. In 1994, Yuri A. Meshkov, a supporter of Crimean independence and closer ties with Russia, won the Crimean presidency. A referendum endorsed greater autonomy for Crimea and dual Russian-Ukrainian citizenship for its residents, but the movement fizzled out as the separatists turned to fighting among themselves. The Crimean parliament and presidency were subsequently abolished (ironically, by a Ukrainian president known for his pro-Russian sympathies).

Also in 1994, Russia and Ukraine agreed to the Budapest Memorandum, which recognized Crimea as an integral part of Ukraine in exchange for Ukraine’s surrender of its nuclear weapons. That agreement seemed to settle Crimea’s status – until Russia’s “little green men” invaded in 2014 and, almost bloodlessly, seized control. A referendum in March 2014 supposedly gave 97 percent approval to annexation to Russia, but polls taken shortly before the Russian takeover showed majority opposition to joining Russia, and “a report by Russian human rights experts that was posted on the website of the Russian Presidential Council for Civil Society and Human Rights found that turnout was only 30 to 50 percent, with just 50 to 60 percent of participants voting in favor of annexation”.

Now it is 2023, Ukraine and Russia are at war, and among Ukraine’s overt war aims is the recovery of Crimea. The strongest basis for the Ukrainian claim is the Budapest Memorandum. If this were the 18th Century, when sovereigns exchanged territories like trading cards, that argument would have heavy weight, but the notion has since developed that the inhabitants of a region should have a major say in who rules them. One can hardly say with confidence what the Crimeans, given a free choice, would prefer, and no alternative looks very satisfactory.

The first idea that comes to mind is a referendum. Let Crimeans vote for Ukraine or Russia. That would indeed resolve the issue if one side or the other won decisively, but there’s no good reason to expect that outcome. A close vote would leave the losers discontented and determined to try again, a pattern that we’ve seen in Scotland and Quebec, while nationalists in the losing party’s preferred partner would press their government to work for a reversal (not necessarily peaceful) of the electoral verdict.

Unpromising as a solution via referendum is, annexation without any formal expression of popular consent, or with a phony plebiscite like the farce of 2014, would be worse, for reasons that are too obvious to need stating.

What about independence? In different circumstances, an independent Crimea with its own national identity might obviate the current ethnic divisions. In the world as it exists, there are drawbacks. Eastern Europe doesn’t need a minuscule state (about the size of Houston in population and Vermont in area) in a strategic location, encircled by neighbors (Russia, Ukraine, Turkey) with motives for interfering in its affairs.

All in all, it seems that Crimea is not a “problem”. Problems have solutions. Crimea may have none. If, as somebody in the Biden Administration thinks would be a good idea, Ukraine recovers it by force of arms, that won’t bother me at all, but the event will be just another stage in the conflict, not its end.

Breaking: More Biden Documents Found

Even if you’re one of those people who thinks that National Review is an arm of the Demopublican uniparty, you’ll want to read Rich Lowry’s news update. If nothing else, it will lighten your day.

P.S.: I wonder how long it will be before Politico and Glenn Kessler and Snopes “fact check” Mr. Lowry’s piece. Most likely, they already have. At least, he won’t be banned by Twitter.

Marking Time

On August 30, 2021, just before midnight, the last American troops scuttled from Afghanistan, leaving behind at least scores, perhaps hundreds, of American citizens and thousands of Afghans who had assisted our forces and were now marked for vengeance by the Taliban.

Jim Treacher has been patiently counting the number of days that our countrymen have been stranded in the Taliban realm. Today is Day 500. The media have lost interest in their fate. We don’t know how many survive, how many have been murdered, how many of died of disease or starvation, how many linger in captivity.

A quarter century after the end of the Vietnam War, our government was still looking for living MIA’s and recovering the bodies of the dead. The Biden Administration’s search seems to have fizzled after a quarter of a year, if not sooner. Amnesia is now its preferred state of mind.

A Strange Answer to an Anticipated Question

Rather than be the ten thousandth commenter on the discovery of classified documents in President Biden’s private office at the University of Pennsylvania, I’ll limit myself to looking at his first public statement about the incident. At a press conference following his meeting yesterday with the aspiring dictator of Canada and the president of those portions of Mexico not under the control of drug cartels, President Biden was asked, as part of a portmanteau query that also included questions for Messrs. Trudeau and López Obrador and one for Biden about border security, to “explain how classified documents ended up in one of your offices? And should the public get – have been notified sooner?”

In response, Mr. Biden read from a prepared statement. Here is the White House transcript:

Well, let me get rid of the easy one first. People know I take classified documents and classified information seriously.

When my lawyers were clearing out my office at the University of Pennsylvania, they set up an office for me – a secure office in the Capitol, when I – the four years after being Vice President, I was a professor at Penn.

They found some documents in a box – you know, a locked cabinet, or at least a closet. And as soon as they did, they realized there were several classified documents in that box. And they did what they should have done: They immediately called the Archives – immediately called the Archives, turned them over to the Archives. And I was briefed about this discovery and surprised to learn that there were any government records that were taken there to that office.

But I don’t know what’s in the documents. I’ve – my lawyers have not suggested I ask what documents they were. I’ve turned over the boxes – they’ve turned over the boxes to the Archives. And we’re cooperating fully – cooperating fully with the review, and – which I hope will be finished soon, and will be more detail at that time.

The President’s ghostwriter evidently didn’t anticipate, or didn’t care to answer, the second part of the question: Why was disclosure delayed for more than two months? The answer to the first part, to the extent that there is an answer, is confined to a single paragraph, and that paragraph is confused and uninformative. To quote again:

When my lawyers were clearing out my office at the University of Pennsylvania, they set up an office for me – a secure office in the Capitol, when I – the four years after being Vice President, I was a professor at Penn.

Three events are mentioned: (1) lawyers “clearing out my office at the University of Pennsylvania, (2) “they” (the same lawyers?) setting up “a secure office in the Capitol” for him, (3) the “four years after being Vice President” during which he “was a professor at Penn”. On the surface, the sequence is (3), (1), (2) – except that the “secure office in the Capitol” can have existed only while Biden was Vice President. The Veep has an office in the Capitol, because he is President of the Senate; the President of the United States does not. Therefore, the actual sequence is (2), (3), (1). There’s not a word about how classified documents got from the Capitol to the university. (Note, again, that the President was speaking from a prepared statement, not ad libbing. Some staffer, doubtless several decades younger than Joe Biden, wrote that garbled run-on sentence and thought that it made sense.)

Mr. Biden professes to “take classified documents and classified information seriously”. He’s not like that guy whom he condemned as “irresponsible” for having classified documents in his possession after leaving office. One presumes that serious attention to classification would have included procedures to prevent classified materials from being commingled with personal documents, so as to ensure that the former didn’t migrate from the “secure office in the Capitol” to “my office at the University of Pennsylvania” along with the latter. If the President had been prepared to answer the reporter’s question, he would have told us what procedures he had in place and would have announced that he had launched an investigation into why they failed.

I infer that he doesn’t want the question answered; he just hopes that it will go away. And it probably will, as the media and the Democratic Party (pardon the redundancy) rally behind the least implausible Presidential candidate that they have for 2024.

Addendum: Well, this happened fast, per NBC (posted at 1:11 p.m. PST):

Aides to President Joe Biden have discovered at least one additional batch of classified documents in a location separate from the Washington office he used after leaving the Obama administration, according to a person familiar with the matter.

Since November, after the discovery of documents with classified markings in his former office, Biden aides have been searching for any additional classified materials that might be in other locations he used, said the source, who spoke on the condition of anonymity to provide details about the ongoing inquiry.

The White House did not return a request for comment. The Justice Department had no comment.

Donald Trump is no doubt very happy, even though, as Andy McCarthy points out, we don’t know, so far, that Joe Biden was an equal scofflaw where classification rules were concerned.

Second Addendum: In a post later than the one linked above, Andy McCarthy observes, “The president doesn’t seem to have gone about this in the manner of someone who ‘take[s] classified documents and classified information seriously’.” He notes in particular that the President, ostensibly on the advice of his lawyers, has disclaimed any interest in learning anything about the documents that were in his possession for four years.

Biden is the president of the United States, the official most responsible for national security. If top-secret information may have fallen into the wrong hands – a possibility that must be indulged when classified intelligence is maintained in an unauthorized place – then it is Biden’s responsibility to know what is in the documents so that he can assess the potential damage. That’s not just his duty; he is in the unique position of knowing who had access to his private office, what the security, visiting, and maintenance arrangements were in the years that the documents were apparently maintained there, and so on.

Mr. McCarthy also presents the most charitable explanation of Biden’s conduct that is at all plausible:

Biden first did what he habitually does, which is to assert that “people know” some supposed attribute of his that, in fact, is neither an attribute of his nor believed by “people” to be one. In this instance, he said, “People know I take classified documents and classified information seriously.” We don’t know any such thing. The most sensitive thing Biden is known to have handled in his long political career is the pullout from Afghanistan, an utter catastrophe of his own making. He is a notorious plagiarist and résumé inflater whose best-known trait is to say with brimming confidence things that are not only untrue but easily demonstrated to be untrue. Everything about him screams sloppy and erratic, which is why White House aides charged with damage control hold their breath every time he speaks. There is absolutely no reason to believe he is any more careful in his handling of classified intelligence than in his handling of anything else.

Less charitable hypotheses are also plausible.

Were the Jobs Really There? An Economic Mystery Story

A case for Sherlock Holmes, Economist: The Bureau of Labor Statistics reported in July 2022 that the U.S. economy had added an estimated 1,121,500 jobs in the second quarter of the year. In the same quarter, the GDP fell for the second quarter in a row, the popular definition of a recession. The Biden Administration and its supporters used that robust job growth as evidence that recession talk was just Republican gaslighting.

But was the job growth in fact robust? Last week the Philadelphia Fed’s research department published a revised estimate.

Our estimates incorporate more comprehensive, accurate job estimates released by the BLS as part of its Quarterly Census of Employment and Wages (QCEW) program to augment the sample data from the BLS’s CES that are issued monthly on a timely basis.

The result of the reevaluation:

In the aggregate, 10,500 net new jobs were added during the period rather than the 1,121,500 jobs estimated by the sum of the states; the U.S. CES estimated net growth of 1,047,000 jobs for the period.

Payroll jobs in the nation remained essentially flat from March through June 2022 after adjusting for QCEW data.

The Society for American Baseball Research has an ongoing program of reviewing the data underlying baseball statistics to correct inaccuracies. Here the discrepancy between the initial BLS estimate and the Philadelphia Fed revision is rather like changing a player’s batting average from .350 to .125. That has naturally led to suspicions that the numbers were cooked for the benefit of a particular political party.

I’m highly skeptical of the skulduggery explanation. While it’s likely that most BLS employees are liberal Democrats (the only one whom I know personally is), not all of them are. The risk that a whistleblower would expose the plotters is high, and what would the malefactors get for putting their careers in jeopardy? Joe Biden might win a news cycle.

It’s conceivable, of course, that the mistake is the Philadelphia Fed’s, that it somehow misinterpreted the BLS’s updated data. That seems just as unlikely as the conspiracy theory. All in all, we have an enigma. Perhaps it will someday be unraveled. Meanwhile, this incident is a useful reminder that statistics aren’t always what they seem to be.

Laugh of the Day

John Kirby has the unenviable job of serving as flack for Joe Biden’s National Security Council. The Defense Department’s just-released annual report to Congress on “Military and Security Developments Involving the People’s Republic of China” aggravated his woes. Its discussion of Communist China’s use of “a wide range of diplomatic tools throughout 2021 to erode U.S. influence globally and subvert U.S.-backed security partnerships” includes this:

PRC officials and state media outlets also repeatedly condemned the U.S. withdrawal from Afghanistan and cited the withdrawal as evidence that the U.S. is an unreliable partner and declining power.

It’s only one sotto voce sentence, but it calls up recollections that must be painful to Foggy Bottom denizens who boast of their “smart power”. Mr. Kirby was sent out this morning to convince the world that, far from being a sign of weakness and unreliability, the American scuttle from Afghanistan was a triumph. Asked by Fox News about the DOD assessment, he declared (cross-talk omitted):

Nations like China and Russia took a look at what we did in Afghanistan . . . and had to marvel at the speed, the efficiency of the effectiveness [sc. with which] that very small number of troops are able to move that many Afghans safely out of that country. No other nation in the world can do that.

Even if one forgets about the chaotic scramble to get onto flights out of Kabul and the thousands of Americans and Afghan allies who were left behind, an evacuation under fire is not an impressive display of military prowess. Nor is it a testament to American reliability that our soldiers slipped away in the night, abandoning bases without notice to the Afghans, leaving billions of dollars of equipment behind, and rendering it impossible for the Afghan army and air force to continue effective combat operations. For those afflicted by amnesia, here is one of the many contemporary summaries of the debacle.

“No other nation in the world can do that.” Once we have identified the “that”, it is certainly accurate to say, “No other American President would have done that.”

As for John Kirby, he has clinched this year’s Baghdad Bob Award.

Why Do Leftists Hate Uncles?

The White House has twitted (why hasn’t it yet migrated to Mastodon?) a list of “some talking points when ‘that Uncle’ comes ‘at you’ about @POTUS”. I leave mockery of the substance (and it is eminently mockable) to others. What immediately strikes me is the assumption that “Uncles” (capitalized to emphasize the menace, I suppose, like “The Thing”) are particularly prone to start disruptive arguments at family gatherings.

I am an uncle myself, several times over, and I can say with confidence that the most disruptive thing I’ve ever done at a Thanksgiving feast is hog more than my fair share of the stuffing and dark meat. I also know scores of uncles, some of them my own, who are models of gentlemanly conduct on all occasions. No doubt there are fathers’ or mothers’ brothers who are rotten apples in the kinship barrel, but so too does the barrel contain annoying sisters and cousins and aunts.

So why do uncles get singled out when progressives send around their festal sound bites? The superficial answer is that most uncles are persons who were “assigned” to the male “gender” at birth and have stuck with it rather than celebrating fluidity. There’s also the fact that paradigmatic uncles are exemplars of toxic masculinity (Uncle Sam), the unequal division of wealth (Uncle Scrooge and Rich Uncle Pennybags) and racism (Uncle Tom, Uncle Remus, Uncle Ben).

Still, those explanations seem to me inadequate. Doesn’t the real offense lie in the fact that, in a world where humankind is a cancerous growth that aggravates Climate-Related Disasters and thus threatens the planet, no uncle is an only child. They are, by definition, brothers and hence unnecessary to the Utopia where birth will be the rare exception to abortion. Progressives who glimpse uncles are, I surmise, overtaken by rage against these despoilers of Gaia. Uncles are ideal villains for a day marked by such evils as meat consumption, carbon-emitting travel, homage to English colonizers and inattention to the urgent need to save our democracy by outlawing misinformation and hanging Donald Trump.

By the way, I killed a few excess brain cells reading “President Biden’s Top Accomplishments” as proclaimed by Chief of Staff Ron Klain. Under the heading “Despite global challenges, WE’RE MAKING PROGRESS”, one sees, “And NO taxes on people making above $400K – he kept his promise”. Maybe Slow Joe isn’t alone in his dotage.

The Great Climate Giveaway

As you may have heard, a United Nations convocation called “COP27” (an appropriate acronym for a body that seeks to police the lifestyles of us lesser beings) has established (that is, has agreed to engage in talks about someday establishing) a fund to compensate poor nations for the damage allegedly inflicted by Global Warming Climate Change Climate-Related Disasters. Joe Biden, following the Hobbit custom of giving presents to others on one’s birthday, has promised to kick in a billion dollars (to be provided by American taxpayers, not taken from Jim and Hunter Biden’s influence-peddling profits). A billion dollars doesn’t sound like much these days, but it’s only earnest money. The Dystopia Mafia wants much, much more.

Last July, a Dartmouth professor and one of his graduate students published a paper, “National attribution of historical climate damages”, that purports to quantify the costs that high-carbon-emitting nations have inflicted on the rest of the world. As summarized by an enthusiastic and credulous CNN report:

Researchers in a new study have put actual dollar figures on economic harm caused by the countries most responsible for the climate crisis, and the ground-breaking data could serve as a starting point for legal action against the world’s wealthiest nations.

The Dartmouth College study found that just five of the world’s top emitters of planet-warming gases – the United States, China, Russia, India, and Brazil – caused around a $6 trillion loss in gross domestic product from 1990 to 2014, adjusted for 2010 dollars, or about 11% of total global GDP.

The study also shows the US and China – the two biggest contributors to the climate crisis – individually caused global economic losses of more than $1.8 trillion each during that same period.

Despite much statistical jargon, it is pretty obvious that these conclusions are derived from speculation piled on top of surmise piled on top of guesswork, but even if they were unassailable, the paper’s methodology has a glaring and fatal flaw. It estimates how much richer the negatively impacted countries would be if the United States and other major carbon emitters had emitted much less in the past and yet had become just as rich. The hidden premise is that America’s $15 trillion economy would be the same size if coal, oil and natural gas didn’t exist.

That scenario is absurd. Without the use of fossil fuels for the past century or so, what is now the “First World” would be direly impoverished, and all the countries that Climate-Related Disasters affect would be poorer, too. Much of such wealth as they have is attributable to their dealings with rich countries: exports, offshored services, remittances from citizens working abroad, tourism, foreign aid. A true accounting would look not just at what climate change subtracts but at what energy produced by fossil fuels adds.

The point of analyses like the Dartmouth duo’s is not, however, to gauge economic consequences. Rather, they seek to furnish a rationale for turning the global economy into a gigantic lottery in which the winning tickets have been assigned to favored “victims” and responsibility for making the payouts has been imposed on alleged transgressors. There could be no surer way to cast away the economic progress of the past two hundred years.

A Progressive’s Constitution

Briahna Joy Gray, who was the press secretary of Bernie Sanders’s 2020 Presidential campaign, contends that Joe Biden’s “loan forgiveness” plan was never intended to take effect. In her opinion –

They used the promise of student debt cancellation to induce young voter turn out -- knowing it wasn't going anywhere bc they relied on faulty legal authority.

Hard to convince me the Biden admin didn't do this intentionally.

As you probably know, last Thursday a federal judge ruled, in Brown v. U.S. Department of Education, that the President has no authority to forgive student loans without Congressional approval. The Administration has defended its action against a barrage of lawsuits not by arguing that Congressional authorization isn’t needed but that no one has the right to take the question to court.

The Brown plaintiffs found an ingenious way around the Administration’s theory (as summarized in the court’s opinion) “that no one has standing to challenge the Program because where the government is providing a benefit, nobody is harmed by the existence of that benefit” (which implies that the President has unlimited power to provide benefits to anyone and to any extent that he wishes). The plaintiffs’ counterargument was that they are student borrowers whose loans the Administration had not purported to forgive and that the Department of Education’s failure to allow the public to comment on the action before putting it into effect, as required by the Administrative Procedure Act, deprived them of their opportunity to make the case for more favorable treatment of their own indebtedness. The court held that these facts resulted in a concrete injury that can be redressed by a favorable court decision. Those are the elements needed to establish standing to bring a lawsuit.

Standing is a complex and contentious subject. Discussing the merits of the court’s opinion in Brown goes beyond the scope of this post. What interests me at the moment is Miss Gray’s reasoning. Back in December, she declared, “Biden absolutely does have the power to cancel all student debut by executive order. No congressional involvement required.” After Brown, she elaborated, saying that the President “could’ve immediately canceled student debt instead of making it a means tested program, in which case there wouldn’t have been these opportunities for people to obstruct”. The Brown plaintiffs, for instance, would have lacked standing, because their loans would have been “forgiven”.

Note that her analysis doesn’t rest on the Constitution but only on the idea that the Constitutional mandate “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law” can, through clever maneuvering, be rendered unenforceable, in which case, she evidently believes, a progressive President has no duty to abide by it.

Briahna Joy Gray is just one progressive, but does anyone imagine that she is an outlier? We’ve heard a lot this year about how “democracy is in danger”. Doesn’t the enthusiasm of a large political movement for arbitrary, unconstitutional executive action carry a whiff of dictatorship?

Biden After Tuesday

The midterms defied expectations and, contrary to my prediction, are sure to strangle the Democratic “push Joe out” campaign in its cradle, especially if, as is not at all improbable, the Georgia runoff leads to another 50-50 Senate split. If that happens, the Democrats will need a Vice President to break ties, and Kackling Kamala is the only Veep they’ve got or will be able to get.

The problem is that the President’s mental decline is palpably accelerating. One may (and should) sympathize with a man facing the seventh and last of Shakespeare’s ages of man (“second childishness, and mere oblivion”), but sympathy is no argument to keeping him in the most important office on the planet. In an article bluntly titled “Biden’s Lost Marbles”, Jim Geraghty lists many, but not all, of the President’s recent mental stumbles.

Back in July 2021, as the U.S. presence in Afghanistan was ending in disaster and Biden’s public appearances were limited to short statements and he was refusing to take questions, John Ellis, formerly of the Boston Globe, summarized how it was acceptable to acknowledge Biden’s age and mental condition if you used certain euphemisms.

“Somewhere along the way of the last few years, Biden transitioned from ‘young old’ to ‘old,’” Ellis wrote. “Veteran reporters describe the transition in code. ‘He’s lost a step or two.’ Or: ‘He’s lost something off his fastball.’ You’re not supposed to talk about it. If you do, and you’re a Democrat, you’re scolded for aiding and abetting the enemy. . . . The problem is that it’s there for all to see. Pretending not to see it is untenable.”

And yet the White House pretends no one can notice Biden wandering around oddly at public events, see the vacant look in his eyes at times, or hear the meandering stories and mumbling. Anyone who has watched a parent or relative succumb to the ravages of age is familiar with the sad, inevitable decline. Biden is not well, and he’s not going to get any better. The presidency ages the most energetic and dynamic of men, and Biden was not among them when he took the oath of office.

The President does, however, retain the last faculty to go: a stubbornness that refuses to acknowledge the inroads of time. He has become the White House Norma Desmond. We must hope and pray that our country doesn’t share the fate of Joe Gillis.

Those Masterly Biden Tacticians

The Washington Post, doubtless prompted by State Department officials who are Leaking As Instructed, has reported that the Administration wants Ukraine to show the world that it is willing to negotiate with Russia (non-paywalled summary here). The aim isn’t, however, to bring about actual talks between the warring parties.

“The request by American officials is not aimed at pushing Ukraine to the negotiating table, these people said. Rather, they called it a calculated attempt to ensure the government in Kyiv maintains the support of other nations facing constituencies wary of fueling a war for many years to come.”

What better way to maintain the support of war-worried friends than to announce to readers of the Post that you have launched an insincere peace initiative?

Not that a sincere peace initiative would be any better. It would only feed Tsar Vladimir’s belief that the decadent West will give up if he just fights on long enough. When one is fighting Joe Biden and his coven of America Lasters, that belief isn’t as absurd as it ought to be.

Joe Biden Gets the CNN “Fact Check” Treatment

There could be no clearer foreshadowing of the coming campaign to ease Joe Biden out of office than the strange new disrespect shown by CNN’s “fact checker”. For the first time ever, the President’s statements are being evaluated as if he were a Republican.

“Fact check: Biden’s midterms message includes false and misleading claims” embraces nine items. Some are the sort that any semi-honest fact checker would have to rate as false: Gasoline prices weren’t over five dollars a gallon when Biden took office. He didn’t get Congress to pass his student loan giveaway “by a vote or two” or by any other margin. The tax cuts enacted in 2017 didn’t benefit “only the top one percent of the American public”. The Biden spending splurge hasn’t reduced the federal debt.

The interesting fact checks are those of the kind ordinarily reserved only for the GOP, namely, those that attach “false” labels to allegedly false conclusions based on undeniably true statements and to trivial factual muddles. For example, it is true that the 2023 increase in Social Security payments will be the largest in many years. (The fact-checked statement says ten; the actual number is forty-two. The President was unwontedly modest.) That Biden presents the increase as an accomplishment of his Administration is a dubious interpretation, but the conclusions to be drawn from facts are outside the fact checker’s bailiwick.

On the trivial side is Biden’s claim that he has traveled “17,000 miles” with Communist dictator Xi Jinping. That’s an obvious muddle – untrue but insignificant.

Combining both facets of bad fact checking is the response to “Unemployment is down from 6.5 to 3.5%, the lowest in 50 years.” CNN sniffs that 3.5 percent unemployment is only tied for the lowest in half a century, then points out that the other months with that low a figure were during the Trump Administration, before the panicdemic struck. Once again, the error is trivial, and the “fact check” – assigning significance to it because “Biden uses these campaign speeches to favorably compare his own record to Trump’s record” – is argumentation rather than blue penciling.

Lest there be any misunderstanding, I think that CNN outargues Biden at every point. But a month ago, it wouldn’t have argued with him at all. Soon, I imagine, it will begin highlighting the spoors of his diminishing mental capacity. And then the guy whom Art Buchwald called “the Great Mentioner” will begin speculating about primary challenges, voluntary retirement, the Twenty-Fifth Amendment, perhaps even Impeachment. The Left’s Overton Window is opening. Joe soon will feel the breeze.

Update (November 7, 2022): CNN isn’t alone. This morning, the Washington Post’s fact checker awards President Biden “a Bottomless Pinocchio”, which sounds like a description of a Meta avatar. (If you don’t want to pay for access, you can read a summary here.)

I begin to wonder whether Slow Joe will make it all the way to 2023.

Warning People That They’re Being Discriminated Against Is Racist!

So says today’s Seattle Times in a story headlined, “Mailers spur debate over claims of discrimination against Asian Americans”. The America First Legal Foundation, about which I know not a thing (the Times says that it “is led by Stephen Miller, former senior advisor to President Donald Trump”), has sent a leaflet “to voters in Washington and across the country this week, appearing to target Asian American voters”.

One side of the mailer says that President Joe “Biden and the left want to decide who gets hired – and who gets fired according to their skin color,” and features pictures and headlines from news stories.

The other side says “Joe Biden and left wing officials are engaged in widespread racial discrimination against white and Asian Americans … even though it’s against the law.”

The reporter then quoted various Democratic partisans, who declared that such statements were “racially divisive and inflammatory” and “attempting to drive a wedge between Asian Americans and other communities of color”. A Republican Party official married to a Filipino was given a sliver of space to say that her husband “kind of just agreed with it” and that both of them opposed affirmative action. Aside from that, all was denunciation.

Guess what was never mentioned: the two cases that the Supreme Court heard last Monday challenging Harvard’s and the University of North Carolina’s blatant discrimination against Asian-American applicants, a practice energetically defended by the Biden Administration. According to the evidence presented by the plaintiffs, an Asian-American applicant to Harvard in the upper ten percent of academic performance has a worse chance of admission than an African-American applicant in the bottom 40 percent. Indeed, the Asian-American admit rate is below all other groups in every decile.

Might not a mention of that litigation furnish a scintilla of context? Is it possible that Asian-Americans are in fact targets of discrimination by the woke identitarians who nowadays dominate the Democratic Party? Or is the only acceptable “anti-racist” response to close one’s eyes tightly shut?

What Student Loan Forgiveness?

Is your mortgage a burden? Are you falling behind in your credit card payments? Did you learn too late that your health insurance doesn’t cover your facelift? Well, I’ve got a deal for you! Buy one of my stories (list here), and I’ll wipe out your debt.

Okay, maybe you have doubts about whether that will work. If so, ask yourself how my “forgiveness” of your mortgage differs from Joe Biden’s “forgiveness” of student loans. “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” So says Article I of the United States Constitution. Forgiving debts owed to the United States, that is, destroying the value of government assets, is just as much a drawing of money from the Treasury as sending checks to the debtors. The Biden Administration has conceded as much by claiming that Congress has authorized the President’s action, an argument so preposterous that I direct your attention elsewhere if you want to see that butterfly mangled and torn to pieces.

As everybody who has even superficially followed this issue is aware, the Bidenoi aren’t relying on that broken legal reed. Instead, they count on the difficulty that objectors face in establishing that federal courts have the authority to hear their objections. The doctrine of “standing”, founded upon the Constitution’s grant to the courts of authority to hear only “cases” and “controversies”, mandates that, in order to get into court, “The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). That has so far been a high hurdle for challengers to the Biden diktat.

Does that mean that no one can stop Joe Biden from spending half a trillion dollars on his own ipse dixit? Not quite. It means, assuming that lack of standing does bring all lawsuits to an end, that no one can stop Joe Biden from saying that half a trillion dollars of unpaid loans have been forgiven, just as no one can stop me from saying that you no longer have to make payments on your mortgage. Since neither I nor Mr. Biden has any legal authority to cancel the debts in question, however, they remain, and creditors can enforce collection.

As soon as a Republican President takes office, his obligation to “to take Care that the Laws be faithfully executed” will oblige him to direct the Department of Education to resume collecting student debt delinquencies, which will, during the phony Biden moratorium, have accrued additional interest and penalties.

One could go further. Mr. Biden’s action isn’t easily distinguishable from embezzlement of government funds, prompted by base political motives. There are many reasons why he is not even remotely likely to be indicted on criminal charges, but it is clarifying to think that he is just as guilty, in principle, as a bank clerk who excises the record of a loan from his employer’s books. It is an act that history will adjudge infamous. In five hundred billion ways, it is worse than Watergate.

“When you are not with where a majority of Americans are”

Last month, President Biden’s press secretary earned fifteen minutes of notoriety with her definition of “extremism”: “And so, when you are not with where a majority of Americans are, then, you know, that is extreme. That is an extreme way of thinking.”

This month, the Biden Administration will go before the Supreme Court to defend the practice of making race and ethnicity major factors in college admissions. The Pew Research Center recently surveyed Americans’ views on how much weight those factors ought to have. This table, to which Pew gave a classic lede-burying caption, summarizes the results:

Evidently, there are some issues about which the Bidenauts think it’s hunky-dory to be “extreme”, even if only seven percent of Americans and nine percent of Democrats concur.

[Hat tip to Ed Whelan]

Another Triumph of “Smart Diplomacy”

Nothing that happens in the U.N. Human Rights Council is of much significance, which is good, because the Council is rotten to the core. It’s basically a pack of wolves charged with watching out for the welfare of lambs. Nonetheless, because Donald Trump pulled the U.S. out of that snake pit, the Bidenites rushed to get back in. They assured us that American “engagement” with the likes of Red China, Cuba and Venezuela would do something to promote the Rights of Man.

Yesterday, the U.S. delegation moved to open a debate on communist atrocities in Sinkiang (Xinjiang). The motion failed: 17 yea, 19 nay, 11 abstentions.

One could hardly ask for a better illustration of the ineptitude of the Blinken corps of “smart diplomats”. Looking at the vote count, one doubts that Donald Trump would have done worse, and he wouldn’t have been trying.

• Ukraine abstained. The U.S. has poured billions of dollars into saving that beleaguered country from Russian tyranny. Red China, the target of the resolution, is Russia’s only noteworthy ally. But the Bidenites couldn’t get a “yes” vote from Kiev.
• The principal victims of communist atrocities in Sinkiang are Moslems. Only one Moslem-majority country (Somalia) voted “yes”.
• Somalia was also the only “yes” vote from the continent of Africa.
• Brazil and India, with which our relations were improving during the Trump era, abstained. Brazil has a strongly anti-communist government (at least for a little while longer), and India has no reason to cozy up to Peking.

To call this outcome a diplomatic fiasco might be an overstatement, but it’s certainly no sign that “adults” are back in charge at Foggy Bottom.

The Case of the Leaking Pipelines

The leaks in the Nord Stream natural gas pipelines have attracted the attention of Internet Nero Wolfes, and why shouldn’t I join the investigation? Let us review the facts, Archie.

• Two pipelines running underneath the Baltic Sea connecting Russia with Germany have sprung major leaks.
• The leaks were preceded by seismic events in their vicinity, one measuring 1.8 on the Richter Scale, the other 2.3. The director of the Swedish National Seismic Network says that there is “no doubt” that the events were explosions rather than earthquakes. By earthquake standards, the blasts were puny, but as explosions they were more than a pipeline would likely be able to withstand.
• The pipelines are not currently doing anything useful, because Russia has cut off deliveries via Nord Stream 1, and Nord Stream 2 has yet to start up.
• There are no estimates of how long repairs will take. It doesn’t sound like they will be completed swiftly.
• Within the past few days, a natural gas pipeline connecting Norway and Poland via Denmark has begun operations, and Germany has secured supplies of liquified natural gas from Abu Dhabi.

Applying the reader-tested mantra of “motive, method, opportunity”, what can we make of this?

The suspects that have so far been suggested are Russia, the United States, Poland and Ukraine. All four surely possess the means to sabotage the pipelines. It doesn’t appear to be an overly complex operation. The Baltic is shallow. Properly equipped divers could reach the lines and plant explosives without great difficulty.

Opportunity is questionable for Ukraine. It has no access to the Baltic and would be very foolish to take the risk of hiring third parties who might betray the plot.

Motive is murky. If we rule out insanity, the ancient question cui bono offers little insight.

• Nord Stream gives Russia its major leverage over a Western Europe that is nearing an energy-short winter. That leverage is now gone. Russia can’t wave offers to resume the natural gas flow as a lure to freezing Germans. I have seen the suggestion that Putin wanted to demonstrate that he has the ability to render pipelines inoperable, in order to discourage competitors like the Norway–Poland line, but (i) who ever doubted that?, and (ii) if that were the motive, wouldn’t Putin be advertising what he did rather than denying it?
• The United States may be pleased that Tsar Putin has lost an important card from his deck, but the card is diminishing in importance. More seriously, inflicting damage of this kind on his country would be monumentally short-sighted. Someday Putin will no longer be in power, and it will be in our interest to repair relations with Russia. If the U.S. had a hand in this operation, the odds are high that it will come to light, as have so many secrets that would be better kept in the cupboard. That will certainly do nothing to foster amity. In any event, it stands not within the prospect of belief that the timorous fools around Joe Biden would take any bold action.
• Poland has very little to gain from shutting down Nord Stream. Its own new line would have an operational Nord Stream as a competitor, but there is plenty of demand for natural gas to go around, and any hint of Polish involvement would destroy its already frayed relations with other EU members.

Where does that leave us? We are looking for a suspect that (i) has reasons to keep Nord Stream from operating, (ii) has the capability of sabotaging it and (iii) would not be deterred by the prospect that its role might become known. Let me hazard a guess at a culprit that fits that description.

Eco-extremists loathe natural gas. They would like to see it replaced by wind and sunshine and fairy dust. They aren’t scrupulous about how they achieve their ends. Knocking out two major pipelines is a step toward their energy-free utopia.

Some eco-extremist groups are very well-funded. The cost of a few ships, trained divers and explosives would be well within their means.

Most importantly, these groups have demonstrated that they are utterly unafraid of adverse public reactions to their exploits. Being quasi-religious fanatics, they are willing to be martyred for their cause.

Of course, this is all theorizing in my study, and I have no Archie to do the leg work. Nonetheless, it seems to me to be a theory worth thinking about.

Praising GOP Governors with Faint Damns

The New York Times “Morning” newsletter, which it delivers en masse to nonsubscribers, presumably in hopes of persuading them to provide monetary support to the Sulzberger wing of the Democratic Party, today addressed “Republican governors’ immigration stunts”. It didn’t praise Governors Abbott and DeSantis. The writers (the piece took the form of one Times reporter interviewing another) took it for granted that it is unsavory for Texas and Florida to provide illegal immigrants with the means to travel to other parts of the country. Lest any reader misapprehend their opinion, they describe the governors’ motives thus:

Ultimately, it’s about optics. It’s in part about securing support from his right-wing base. They back cracking down on unauthorized immigration; punishing people who, in their view, didn’t come to the U.S. the right way; and placing the burden of helping the migrants on Democratic cities and states.

Nonetheless, the substance of the condemnation is hard to distinguish from praise, beginning with the full subhead: “Republican governors’ immigration stunts are actually helping some migrants.”

The writers note that a large proportion of the current wave of immigrants comes from Venezuela: “a broken country, where political dissent is repressed and the economy has collapsed. There are shortages of food, medicine and other staples” (no mention of what economic system did the breaking).

So these migrants were willing to basically risk their lives to reach the United States. They braved the lawless jungle out of Venezuela and passed through seven countries to ultimately reach the United States out of despair, out of a desire to make a living and support their families.

Bear in mind that, according to the Times, the motive for sending these desperate displaced persons to hellholes like Martha’s Vineyard is to punish them. How did that turn out?

Ironically, it’s benefiting many of the migrants.

For example: I met a Venezuelan migrant named Lever Alejos. He had used up all the money he saved to make the trek to the U.S. from Venezuela. He took one of the buses to Washington, D.C., where he found a bed in a shelter. In a matter of weeks, he has managed to not only find work; he has started sending money back to Venezuela to support his 7-year-old son. He said his son’s life is 100 percent better. He has also saved to buy a cellphone and plans to buy a used 2012 Honda Civic.

The incredulous interviewer asks, “Is this backfiring for Abbott, if the migrants are doing well and they’re filling an economic need for Democratic areas?” As already noted, the writers assume that the objective is to inflict pain on the aliens rather than to reduce the pain suffered by the border towns that have to cope with the influx (and also, indeed, to call attention to the disastrous failure of the Biden Administration’s border-neglect policy).

In the absence of a workable immigration law, spreading out the new arrivals is probably the best that can be done. The Biden Administration seems to feel the same way, since it has flown thousands of illegal immigrants to distant parts of the country, but, unlike Governors Abbott and DeSantis, under cover of darkness and with as little publicity as possible.

While some illegal aliens are criminals, terrorists, drug smugglers or economic opportunists, a great many are trying to escape intolerable conditions in their native lands. One can hardly blame a Venezuelan for thinking that life in U.S. shadows is better than trying to evade the spotlight in Maduro’s dictatorship. Unfortunately, letting in everybody who wants to cross the border is no solution. The experience of the past couple of years has proven that.

Moreover, the Democratic Party’s utter indifference to the problems created by uncontrolled immigration and non-enforcement of the law has created a political environment in which reasonable colloquies are all but impossible. Long ago, I came up with my own proposal, aimed at providing economic opportunities to foreigners who are willing and able to work, without throwing the border wide open. It no doubt had its flaws, but fifteen years ago it fit into mainstream thinking about the issue. Now the opposing camps will consider nothing but their own absolutes.

The present and the immediate past Administrations stand on opposite sides of the divide. It would be false to the point of comedy to call either one’s policy a “success”. At this point, I’m inclined to think that the Trump Administration, for all its rhetorical excess and not infrequent blundering, was the lesser failure, but that is hardly an encomium. Perhaps, after the “Big Guy” leaves office, we can hope for something better than a choice of follies.

A Scandal in Minnesota

Power Line has been covering a massive diversion of federal funds intended for Covid-19 relief into the hungry maw of an outfit called “Feeding Our Future”. The story has gotten little notice outside of Minnesota, but, even in this jaded era of trillion dollar spending programs, the numbers deserve attention. A preçis:

Briefly, Feeding Our Future (“FOF”) was a fraudulent nonprofit that accessed an astonishing $240 million in federal money, ostensibly to feed needy children in Minnesota. Under the supervision of Minnesota’s Department of Education, FOF distributed that money to a network of Minnesota nonprofits who allegedly delivered the actual meals to children. But it turns out that the money mostly went to luxury purchases, fancy cars, overseas vacations, gold and jewels, new houses, and property in places like Kenya and Turkey. FOF kept a slice of the $240 million and added to it by charging kickbacks. The entire fraud has now unraveled in a series of 48 or more indictments announced last week by the U.S. Attorney in Minnesota. [Link added]

The latest development changes this from another tale of graft into something worse.

Throughout, the public officials on whose watch this massive fraud occurred have relied mostly on a single defense: in 2021, the Department of Education, having become suspicious, tried to cut off funding to some of FOF’s clients. But a state court judge rejected MDE’s arguments and ordered the Department to resume funding what turned out to be one of the biggest frauds on record. That was the story.

Minnesota’s governor, Tim Walz, up for reelection this year, cited that decision after the FOF indictments were announced.

“I would hope there would be an investigation into that,” Walz told reporters Thursday. “I was speechless, unbelievable that this ruling could come down. (I) did not really know what to say. Obviously, we had to honor it but at that point I said, we have got to continue to push the federal government and the FBI to do the investigation.”

Today the Minnesota Judicial Branch took the unusual step of releasing an official statement about the case. After recounting the history of the litigation, the statement concludes:

On February 26, 2022, the Star Tribune reported on a federal investigation of FOF. The article included the following false statement: “In April 2021, Ramsey County District Judge John Guthmann told the department it didn't have the authority to stop payments and ordered the department to resume payments.” Since February, that Star Tribune quote has been repeated or paraphrased on many occasions by many other media outlets. The same media sources reported that, in her April 4, 2022, testimony to the Minnesota Senate, the Commissioner of the Education stated that the MN Department of Education tried to stop payments to FOF, only to be ordered by Judge Guthmann to resume payments. That is false. Then, when federal indictments were announced this week, many new reports were published. On September 22, 2022, Governor Tim Walz told the media that the Minnesota Department of Education attempted to end payments to FOF because of possible fraud, but that Judge Guthmann ordered payments to continue in April 2021. That is also false.

As the public court record and Judge Guthmann’s orders make plain, Judge Guthmann never issued an order requiring the MN Department of Education to resume food reimbursement payments to FOF. The Department of Education voluntarily resumed payments and informed the court that FOF resolved the “serious deficiencies” that prompted it to suspend payments temporarily. All of the MN Department of Education food reimbursement payments to FOF were made voluntarily, without any court order.

It should be noted that the local news report quoted above (by a FOX affiliate, no less) disputes the Judiciary’s account, asserting that the judge “ruled that Minnesota education officials lacked the legal authority to stop payments” and “held the Education Department in contempt of court for failing to process 143 applications from Feeding Our Future for new meal sites”. I imagine that we’ll soon learn soon enough where the truth lies. I doubt that the judges misrepresented the record.

One clear point is that the state’s Department of Education did sniff something rotten in FOF’s activities as early as two years ago. Another is that the DOE didn’t regard stopping the fraud as very urgent. Its excuses for forgoing an appeal of the judge’s purported decision, recited in the FOX article, are feeble: An appeal would have run up more legal fees. If the DOE had lost on appeal, more sanctions might have been imposed. Those are good reasons only if the department had little confidence in its position. It is obvious now that FOF’s activities were highly suspicious. The failure to appeal gave a massive benefit of the doubt to the organization, a benefit that it patently didn’t deserve and one that diligent protectors of the public purse would never have entertained.

The Times’ Anti-Democratic “Democracy”

This morning, the executive editor of the New York Times declares, “Representative government faces its most serious threats in decades.” You won’t be surprised to learn that, in the paper’s view, all threats come from the Right. You also won’t be surprised to learn that the Times’s definition of “representative government” doesn’t bear much resemblance to James Madison’s.

Identified as “the two biggest threats to American democracy” are “first, a movement within the Republican Party that refuses to accept election defeat; and, second, a growing disconnect between public opinion and government power”.

Claims that the 2020 Presidential election was “stolen” aren’t based on any large body of evidence – no more than were the same Democratic claims about the elections of 2016, 2004 and 2000 (i. e., every Presidential election that Democrats have recently lost). The Times hypothesizes that GOP office holders who “falsely claim that the 2020 election was rigged . . . may be willing to overturn a future election”. How they would or could do that is left obscure, nor is it obvious that people who decry what they perceive as election rigging are merely disappointed that they couldn’t do the rigging themselves.

There is, in fact, an easy way to shut up “election deniers”: Conduct elections under transparent rules that (i) ensure that only eligible voters will cast ballots, (ii) guarantee ballot secrecy and (iii) are not subject to partisan change at the last minute. The 2020 election satisfied none of those criteria. It was our country’s good luck that the Electoral College vote wasn’t close enough to sow much wider suspicion that the wrong candidate was declared the winner.

The Biden Administration’s ideas for election reform go in the opposite direction: toward forcing every state to make elections less secure. The proposed “For the People Act” and “John R. Lewis Voting Rights Act” would, among other assaults on election integrity, mandate universal voting by mail and forbid requiring would-be voters to prove that they are whom they claim to be. Elections would be conducted entirely on the honor system. American history suggests that honor isn’t the leading characteristic of those who oversee the polls.

The adoption of the Biden proposals would cast a pall of suspicion over every election that wasn’t a landslide, even if politicians forswore opportunities for fraud and the effective repeal of the secret ballot didn’t alter any outcomes. That is a graver peril to democracy than Donald Trump’s or Stacey Abrams’s sore-loser tweets. Republican efforts to reform slovenly state election procedures buttress democracy rather than undermine it.

The second “threat to democracy” perceived by the Times is a defining feature of the American Constitution: It is very, very hard to enact fundamental changes to the nation’s laws without first obtaining a wide consensus in their favor. That is what the Times calls “a chronic threat: The power to set government policy is becoming increasingly disconnected from public opinion.”

Naturally the Times does not mean that laws are increasingly made by an unelected, rarely accountable Administrative State. Rather –

Two of the past four presidents have taken office despite losing the popular vote. Senators representing a majority of Americans are often unable to pass bills, partly because of the increasing use of the filibuster. And the Supreme Court is dominated by an ambitious Republican-appointed bloc even though Democrats have won the popular vote in seven of the past eight presidential elections – an unprecedented run of popular-vote success in U.S. history.

If one measures “popular vote success” purely by Presidential elections, that sounds superficially plausible. What it overlooks is that one can’t infer a great deal about public opinion “across the fruited plain” from the results of an election held every four years in which two atypical and not seriously contested states (California and New York) account for the Democratic Presidential majority. As a further, contemporary complication, Joe Biden didn’t run on the agenda that he is now trying to enact, and there isn’t much evidence that public opinion is thrilled with it. One might ask why, if Biden policies are overwhelmingly popular, he and his appointees are so zealous to stifle criticism.

One item in the Times’s litany of laments deserves special attention: “Senators representing a majority of Americans are often unable to pass bills.” Equal state representation in the Senate has that effect. It is one of the ways in which the Constitution hinders sweeping, non-consensus upheavals. Eliminating it through Constitutional means would be extraordinarily difficult, requiring not just an amendment but the unanimous consent of the states: “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” As a practical matter, “democratizing” the Senate is possible only by overthrowing the Constitution. That doesn’t sound like the most democratic of ideas, but it is the only road ahead if the Times regards the Senate as a genuine menace to democracy.

Taken all in all, the Times harbors a concept of democracy that is seriously at odds with our present form of government. Could its professed fear of “insurrection” be an instance of projection?

Echoes of Robespierre

Law & Liberty has posted an interesting review by Daniel J. Mahoney of the English translation of the awkwardly titled Robespierre: The Man Who Divides Us the Most (Robespierre: L’homme qui nous divise le plus) by French political philosopher Marcel Gauchet. The Italian translation has a more descriptive title: Robespierre: L’incorruttibile e il tiranno. Tra libertà e Terrore: le memorie divise della Rivoluzione francese. If I had been the publisher, I would have called it Robespierre: The Union of Liberty and Terror.

Maximilien Robespierre (1758-1794) began his career as a provincial lawyer and advocate of humanitarian causes. One of his early works was “Discours sur les peines infamantes” (1784), which denounced the degrading punishments meted out by French criminal courts. In March 1789, he was elected to the Estates-General, the body that fomented the French Revolution. He swiftly became one of its most prominent members and rose to the top of the political scrum during the turbulent years that followed. By 1793, he was the leading member of the Committee of Public Safety and the most eloquent proponent of the Reign of Terror.

His ascendancy didn’t last. On July 27, 1794 (9 Thermidor, Year II, in the Revolutionary calendar and, ironically, exactly one year after he took his place in the Committee of Public Safety), the National Convention, France’s legislative assembly, accused him of tyranny and ordered his arrest. The next day, after one of the wildest and most memorable nights in all of French history, he and a score of his followers were executed by the guillotine, that emblem of Revolutionary “justice”.

As Professor Mahoney observes, “Robespierre and the Jacobins have their contemporary partisans (and even imitators)”, both inside and outside of France.

For Robespierre is no ordinary tyrant, no man of unhinged ambition striving for power at any cost. In the early years of the Revolution, Robespierre spoke of nothing but the “rights of man,” of popular government, and the need to eschew any compromise with the remnants of the ancien regime. In his view of things, before 1789 one sees only tyranny, darkness, and oppression; on the other side of the chronological divide there is liberty, emancipation, and the dawn of the reign of the “rights of man.” But the transition required rivers of blood to flow. The “killing machine” that Robespierre became is inseparable from his uncompromising dedication to the “rights of man.” The “hero” and the “monster” are one and the same man fanatically dedicated to the same principles. This ought to give us pause.

Several of Robespierre’s traits have eerie echoes in our present day turmoil.

Immense political power was not accompanied by much interest in the mundane tasks of government. “In place of governing, Robespierre and his allies searched for enemies, discerning corruption and conspiracy everywhere.” Rarely attending sessions of the Committee or the Convention, paying scant attention to such crises as spiraling inflation, Robespierre warned in speech after speech that everyone who questioned his opinions was a conspirator against the principles of the Revolution. He often sounded much like Joe Biden excoriating “MAGA Republicans” while ignoring trivial matters like a looming rail strike, a porous Southern border and, by the bye, inflation.

Another audible echo is Robespierre’s rejection of all tradition and history. His principles were, like those of the today’s Woke fanatics, plucked out of his own head. He attributed them to Reason, while the Woke regard rational thought as one of the evils of Western civilization, but the consequences are the same in each case: a set of dogmas that rests on ipse dixit and justifies, indeed demands, the persecution of dissenters. Contemporary persecution is milder than Madame Guillotine, but exclusion from the Public Square and the destruction of livelihoods are far from benign.

Robespierre believed, too, that the nation should possess “une volonté une” (“one single will”). He would have nodded in agreement with the White House press secretary’s declaration, “If you are not with where the majority of Americans are, that is extreme.”

I wouldn’t go so far as to aver that the parallels between President Biden and Citizen Robespierre are exact. For one thing, the “Big Guy” doesn’t qualify for Robespierre’s sobriquet, “l’Incorruptible”. Nor does he possess Robespierre’s intellect, energy, eloquence and charisma. Nor is he in much danger of a Ninth Thermidor, however stridently he may proclaim the imminent danger of insurrection. He is the Revolutionary tyrant recreated as a Twenty-First Century caricature.

“Protecting” Democracy Through Censorship

Today I devoted quite a few neurons to thinking about something to say about 9/11 and decided that I have nothing new and interesting to add to the flow of discourse on that topic. I did, however, notice an essay behind National Review Online’s paywall (Kenin M. Spivak, “The Biden Administration Is Engaged in a Massive Censorship Campaign”) that is 9/11-adjacent and deserving of close attention. It recounts, in startling detail, the Biden Administration’s strenuous efforts to subject online speech to what can only be called “censorship”, as revealed by evidence presented by the plaintiffs in one of the several ongoing court cases styled Missouri v. Biden, this one seeking to “to enjoin the defendants [an array of Executive Branch agencies] from taking any steps to demand, urge, pressure, or otherwise induce any social-media platform to censor or restrict access to content”.

The evidence shows that at least 80 senior officials have participated in a concerted federal enterprise involving at least eleven federal agencies, including the White House, Department of Health and Human Services (HHS), Department of Homeland Security (DHS), Centers for Disease Control and Prevention (CDC), Office of the Surgeon General, Census Bureau, and FBI. The manifestly unconstitutional public–private partnership between the administration and Big Tech disregards Chief Justice Warren Burger’s warning that it is “axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.”

Responses to Freedom of Information Act (FOIA) requests and emails produced in discovery show that White House, DHS, and HHS officials flagged specific content and examples of content for censorship, including factually accurate dissenting views, under the guise of suppressing “domestic terrorism.”

That President Biden would seek to use government power to silence criticism was sadly predictable, if only the electorate had been paying attention to what little he said during his basement hideaway campaign:

In January 2020, then-candidate Biden told the New York Times editorial board that Section 230 [of the Communications Decency Act] should be “revoked” because social-media companies like Facebook did not do enough to censor false information in political ads criticizing him, and that Facebook CEO Mark Zuckerberg should be subject to civil liability and possibly criminal prosecution for not censoring the Trump campaign. In June and again in September 2020, the Biden campaign demanded that Facebook censor Trump and his supporters.

Examples follow of the implementation of what was thus foreshadowed. To take just three:

At a White House press briefing on July 15, 2021, White House press secretary Jen Psaki explained: “We are in regular touch with these social-media platforms . . . through members of our senior staff.” She made explicit the administration’s unconstitutional violation of free speech when she admitted, “We’re flagging problematic posts for Facebook that spread disinformation,” and added, “They certainly understand what our asks are.”

On February 7, 2022, DHS issued a National Terrorism Advisory Bulletin that claimed that the “proliferation of false or misleading narratives, which sow discord or undermine public trust in U.S. government institutions,” constitutes a “domestic terror threat.” Then, on April 12, CISA announced that it was coordinating directly with social-media platforms to police “Mis-, Dis-, and Malinformation.” Premising its activities on unconstitutional motives, CISA stated: “False or misleading information can evoke a strong emotional reaction that leads people to share it without first looking into the facts for themselves, polluting healthy conversations about the issues and increasing societal divisions.”

At an Axios event on June 14, 2022, White House national climate adviser Gina McCarthy demanded that “tech companies have to stop allowing specific individuals over and over again to spread disinformation” – speech that contradicts federal officials’ preferred narratives on climate change – and threatened congressional action to “hold companies accountable.”

I doubt that very many Americans think that it would be a good idea for the government to take up the role of Supreme Fact Checker. The Administration probably has the same doubt, for it fought hard – unsuccessfully – to hide much of the key evidence sought by the Biden v. Missouri plaintiffs behind a wall of executive privilege.

President Biden talks a lot about “saving democracy”. There will be little democracy left to save if the incumbent regime can decide who is allowed to speak and what they are allowed to say.

Further reading: Jacob Sullum, “Biden’s Sneaky Censors”

A Straightforward Answer to What May Be a Sincere Question

The Morning Dispatch, a conservative, vehemently anti-Trump web site, asks, at the end of its account of Joe Biden’s Riefenstahl-style oration at Independence Hall:

Do Republicans blasting Biden’s speech last night as overly partisan have a point? Was there any way the president might have drawn attention to concerns about Republicans’ democratic backsliding without being accused of being divisive?

Rarely does anyone ask a question with such a simple, straightforward answer: A President who was genuinely concerned about “democratic backsliding” would take note of both parties’ trajectories. Denunciations of “MAGA Republicans” would have more credibility if the President also denounced backsliding by his own party, over whose conduct he presumably has some influence.

• Many Democrats insist that their candidates were the real winners of elections (Stacy Adams in Georgia in 2018, John Kerry in Ohio in 2004) that weren’t nearly as close as the Presidential tallies in Arizona, Georgia, Pennsylvania and several other states in 2020. Moreover, it is practically an article of Democratic faith that George W. Bush and Donald Trump were illegitimately elected, the former allegedly installed by the Supreme Court, the latter by Vladimir Putin. None of these claims rests on any more evidence than does Trump’s fantasy that he won reelection by millions of votes.
• Riots broke out when Donald Trump was nominated for President and again when he was inaugurated. Like the January 6th riot at the Capitol, they weren’t especially bloody, but they showed similar disrespect for the outcome of democratic processes.
• Definitely bloody and destructive were the riots in the summer of 2020. The unanimous Democrat response was that they were “mostly peaceful” and were motivated by a virtuous desire to call attention to injustices. Fine, but what was democratic about refusing to prosecute the unpeaceful protesters who burned police stations, vandalized businesses, terrorized innocent citizens and, in cities like Portland and Seattle, established enclaves that rejected the authority of the local, state and federal governments?
• The victories of “MAGA Republicans” in GOP primaries owe much to the support that they have received from Democratic campaign organizations. Boosting anti-democratic forces in one of the two major political parties is a strange way to promote democracy.
• Documents have come to light showing that numerous federal agencies have been working with social media companies to censor opinions that the government regards as false or dangerous. Unless one believes that freedom of speech is an expendable luxury, that is an ominous development for the future of democracy.

The case that large elements of the Democratic Party will accept democracy only so long as it produces their preferred results is at least as strong as the case against “MAGA Republicans”. Friends of democratic rule need to rebuke the authoritarians on both sides. It is safe, though sad, to say that Joe Biden has revealed himself as not one of those friends.

That is, I believe, the answer to the Dispatch’s question.

 

An Angry, Flailing, Failed Mediocrity

There is no reason to read grave portents into President Biden’s Mussolini-like rant against the “MAGA Republicans” who are supposedly attacking democracy. If he were a real Mussolini, his next step would be to mobilize the National Guard to round up the enemies of the state. But he won’t do that. The worst that will occur will be continuing collusion between federal bureaucrats and social media companies to keep critical voices off the latter’s platforms, which would mean something only if Twitter and Facebook were the real world. While the Administration’s soft censorship is despicable, it isn’t likely to have much effect.

No, the Biden harangue, set against a blood-red background and backed up by Marine guards, should be seen for what it truly is: the flailing of a man far out of his depth (which isn’t very deep) who at some level realizes that his policies are comprehensively failing but refuses to consider any alternatives and imagines that shouting into the night sky will exorcize the phantasms with which his feverish brain surrounds him.

He is a pitiful figure, no more to be feared than a lunatic ranting on a street corner. We should pray for his recovery, which will be hastened by speedy retirement from public life.

Above all, let us look to the example of Abraham Lincoln, who, entering the fourth year of a genuine insurrection, had the greatness of spirit to counsel “malice toward none, charity for all”.

A New Litigation Frontier

Time for Big Honey to get its comeuppance! Sheriff Biden will soon dodder onto the case.

The Disinformation Governance Board: Good News and Bad

The good news came some time ago, when the Department of Homeland Security shuttered its nascent “Disinformation Governance Board”. The bad news arrived today, when the Homeland Security Advisory Council explained why the DGB isn’t needed: not because the government shouldn’t be policing Americans’ opinions, but because, as Jim Geraghty summarizes, the advisors “concluded that the DHS already had enough offices in enough agencies focused on rebutting disinformation, including disinformation coming from foreign governments. The Disinformation Governance Board was superfluous.”

To put that in plain English, the DHS decided that it already has enough censors to keep wrongthink out of circulation. The Advisory Council report consists largely of recommendations for making censorship more effective. Recommendation number one is, “It is Imperative that DHS Address Inaccurate Information that Undermines its Critical Missions”.

If that meant that government officials have the right to argue in defense of their actions, no one would object, but setting up a bureaucratic structure devoted to undermining critics is not reasoned argument. The mere fact that refutation of opposing views is sometimes difficult doesn’t justify trying to keep those views from being uttered.

After all, if the mere fact that an opinion is erroneous were sufficient reason to suppress it, there are many candidates for suppression. For instance, while economists disagree on many matters, there is an overwhelming consensus (more overwhelming that any scientific consensus about climate change) that wage and price controls lead inevitably to shortages and black markets. Yet many people assert that they are a prophylactic against inflation. Should the government launch a campaign to keep the public from hearing that falsehood?

And so, as I said, today’s news isn’t good – just further evidence that the powers that be in the Biden Administration don’t in their hearts support free expression and democracy in any real sense. Their ideal is government by soi disant experts.

A Better Name for a Bad Idea

The fraudulently named “Inflation Reduction Act” is being abbreviated as “IRA”, an acronym already in use for “Irish Republican Army” and “individual retirement account” and the seldom consulted baseball statistic “inherited runs allowed”, as well as being the Latin translation of the first word of the Iliad. I’m told, too, that kids on the Internet, type “ira” for “I ran away”.

Can’t we be a bit more original? I suggest: “Infraction”, formed from “INFlationReductionACTION”. Not only unique but both more accurate and more in line with what the public anticipates.

Thoughts for an “Interesting Time”

Whenever the world seems to be plummeting toward disaster, I find encouragement in Voices from the Ming-Qing Cataclysm: China in Tigers’ Jaws, a collection of writings by people who lived through the Manchu conquest of China. That was a far more harrowing episode than any that we face. Still, although I have lived through nearly a third of the United States’ existence as an independent nation, I cannot recall any moment with so many simultaneous crises: inflation and recession in the U.S., lawlessness in major cities, a visibly incompetent President, unchecked illegal immigration, a major war in Europe whose spinoffs are potential blackouts on the European continent and famines in the poorer regions of the world, an inchoate economic crisis on the communist-controlled Chinese mainland whose spinoff could be war in Asia, the accession to power of leftist regimes in major Latin American countries and – oh, by the way – a pretty much overt campaign by the incumbent President (or his court, as he doesn’t appear up to much campaigning) to jail his predecessor.

The last of those items has, for a news cycle or two, eclipsed the rest, thanks to yesterday’s mysterious FBI incursion into Donald Trump’s home in search of undisclosed evidence of unidentified crimes. The raid (but we’re not supposed to call it that; will “banana” do?) elicited this amnesiac comment in the New York Times’s “Morning” newsletter: “The Justice Department has long been aggressive about investigating former officials whom it suspects of improperly handling classified material, including Hillary Clinton and David Petraeus.” Yeah. You remember, don’t you, the raid on Hillary’s house in Chappaqua that seized the server she had been using to send and receive classified documents?

The Times sees only two possible scenarios: (i) This is a boring, routine investigation of mishandled documents. (ii) The Justice Department has uncovered “a major new legal problem” for the ex-President. “People familiar with the search told The Times that it was not related to the Justice Department’s investigation into the Jan. 6 attack and Trump’s role in it. And it’s unlikely that Merrick Garland, the attorney general, would have allowed the search-warrant request – or that a federal judge would have approved it, as was required – unless it involved something important.”

As Matt Taibbi reminds us, we’ve been spun like this before:

It’s amazing how short our cultural memory has become. Apparently few remember all the other times this exact rhetoric was deployed in the interminable list of other Trump investigations, only to backfire later. Does anyone remember this doozy?

Applications for FISA warrants, Comey said, are often thicker than his wrists, and that thickness represents all the work Justice Department attorneys and FBI agents have to do to convince a judge that such surveillance is appropriate in an investigation.

That Washington Post story from April 11, 2017, “FBI obtained FISA warrant to monitor former Trump advisor Carter Page,” by Devlin Barrett, Ellen Nakashima, and Adam Entous, was one of the key moments in the Trump-Russia scandal. It repeatedly stressed the illustrious credentials of all involved, noting, “any FISA application has to be approved at the highest levels of the Justice Department and the FBI,” before dismounting to the crucial conclusion:

The government’s application for the surveillance order targeting Page included a lengthy declaration that laid out investigators’ basis for believing that Page was an agent of the Russian government and knowingly engaged in clandestine intelligence activities on behalf of Moscow, officials said.

The next day, the New York Times kicked the story forward by citing “a government official” who confirmed that the FISA court had obtained a warrant against Page “based on evidence that he was operating as a Russian agent.”

We now know that there was no “there” there. The FISA warrants were based on what the FBI already knew were unverifiable claims by sources of dubious reliability. The motive for monitoring Carter Page was the hope that something would turn up. My guess is that the Mar-a-Lago raid banana was a similar long shot in the dark. Maybe somewhere in Melania’s wardrobe is evidence that Donald Trump ordered the murder of Jeffrey Epstein.

A cynic might add that, in the likely event that Mrs. Trump keeps only clothes and shoes in her closet, the raid banana has gotten people (or at least twitterers) off subjects like food and fuel prices, infant formula shortages, unsafe streets, the ravages of opioids and fentanyl, and Day 346 of Americans stranded in Afghanistan. If that’s the intention, it’s succeeded, which is why this post is the last time that I intend to say anything about Donald Trump until after the November election. Whether he or his personal Javerts are right about his conduct, neither needs any assistance from me, and the future of the Republic doesn’t turn on how a one-time President spends his retirement years.

The Surest Symptom of Rotten Legislation

Two weeks ago, the “Inflation Reduction Act” <fraudulent labeling alert> not only didn’t exist but wasn’t expected ever to come into being. Then Joe Manchin decided that he was tired of being elected to office in West Virginia and signed onto a deal with Chuck Schumer. Last Thursday, the deal was revamped to furnish 30 pieces of metaphorical silver to Kyrsten Sinema’s private equity funders. Today, the Senate passed the sausage on to the House after spending all night voting.

Like everyone else, except perhaps the overworked Senate parliamentarian, I haven’t read the resulting bill. But I don’t need to. The way in which it is racing through Congress is as sure a proof of rottenness as the odor emitted by a week-old mackerel lying in the Sun.

There are emergencies in which legislatures must act quickly if they are to act at all. Here there is an “emergency” in a different sense. Congress must pass INFRACT right away, lest people have time to think about its provisions. Whether the ideas underlying it are sound or spurious, they do not respond to an urgent need. Enacting them can wait, if the objective is to fashion laws that will actually accomplish their ostensible objectives.

Let’s leave to one side the question of whether the ideas embodied in the bill are good. Whatever their merits, their implementation will be complicated. Unintended consequences aren’t just a possibility; they’re certain.

To take just one example, the bill includes a 15 percent “minimum tax” on the income of large corporations as reported on their financial statements. Financial statements are prepared in accordance with Generally Accepted Accounting Principles, which vary widely from those used by the Internal Revenue Code. As the Tax Foundation has pointed out, the minimum tax “will have disproportionate effects on specific industries, and apparently unintended penalties for various company- and industry-specific expenses”. In many cases, those effects may undercut INFRACT’s goals. The only way to minimize undesired effects is through a careful analysis, for which no time has been allotted.

Other parts of the bill – drug price controls, expansions of Obamacare, tax credits and subsidies for wind and solar power, a massive increase in IRS oversight into citizens’ lives – are equally in need of careful vetting.

The law that has been the foundation of my professional career, the Employee Retirement Income Security Act of 1974, was the product of a legislative process that lasted six years, and even then not all of the bugs were plucked out. INFRACT hasn’t spent a lot longer than six days in the legislative pot, but the country will be consuming it for years. Would it be too much to ask for a thorough nutritional review?

Defining “Recession”: Meaningless But Important

Everyone knows how his own personal economy is performing: expansion, contraction, stagnation. And everyone acts on the basis of his own microphenomena. Some people prospered during the Great Depression. One of my grandfathers never missed a paycheck, bought stock when the market was at its nadir, and accumulated a modest fortune. (My other grandfather’s experience was more Depression-like.) “Recession” is a term for what is perceived, through the fog of statistics, as some kind of average of individual economies.

If the government didn’t feel a responsibility for steering the direction of the “average economy”, labeling periods as “recessions” would be of interest only to historians. In the era of King Stork (we have forgotten that King Log ever reigned), though, labels inspire action. They also influence voters, even those whose personal economy isn’t much like what the label says.

The Biden Administration may not understand much, but it understands that. Therefore, it would very much like for the current economic climate not to be called a “recession” – at least not now. Hence, we have heard much about how the rule-of-thumb definition, two consecutive quarters of decline in the gross domestic product (generally expected to be met when the next GDP figures are announced), isn’t the real definition as formulated by the National Bureau of Economic Research, the accepted arbiter of U.S. business cycle history.

The NBER goes to some trouble to explain to the public what it means by a recession. Here is the grain of truth in Treasury Secretary Yellen’s insistence that the definition is “holistic”:

The determination of the months of peaks and troughs is based on a range of monthly measures of aggregate real economic activity published by the federal statistical agencies. These include real personal income less transfers (PILT), nonfarm payroll employment, real personal consumption expenditures, wholesale-retail sales adjusted for price changes, employment as measured by the household survey, and industrial production. There is no fixed rule about what measures contribute information to the process or how they are weighted in our decisions.

That’s a lot to evaluate, and the process takes time. Historically, the NBER has announced the beginning and the end of recessions with time lags ranging from as few as four to as many as 21 months. Perhaps the most consequential instance was the recession that began in July 1990 and ended in March 1991. The NBER announced the start date on April 25, 1991, and the end date on December 22, 1992. Throughout the 1992 Presidential campaign, Bill Clinton and the media trumpeted that the economy was in a slump. Clinton compared it to the Great Depression. That may be why he won. The Biden Administration is rather overtly hoping for the opposite: that it will be able to declare for months and months that there is no recession, because the NBER hasn’t yet said so.

When the NBER reaches its decision about the state of the business cycle as of July 2022, there is one factor that will not enter more than marginally, if at all, into its evaluation: the unemployment rate. In its judgment, “The unemployment rate is a trendless indicator that moves in the opposite direction from most other cyclical indicators.” Unemployment results from diminished economic activity, but it doesn’t coincide with the diminution. Businesses are slow to fire and slow to rehire. Hence, one cannot tell whether the economy is contracting or expanding today by looking at today’s unemployment rate. That is the product of what happened in the past.

Moreover, the current labor market doesn’t look all that robust.

Real average hourly earnings for all employees decreased 1.0 percent from May to June, seasonally adjusted, the U.S. Bureau of Labor Statistics reported today. This result stems from an increase of 0.3 percent in average hourly earnings combined with an increase of 1.3 percent in the Consumer Price Index for All Urban Consumers (CPI-U).

Real average weekly earnings decreased 1.0 percent over the month due to the change in real average hourly earnings combined with no change in the average workweek.

Real average hourly earnings decreased 3.6 percent, seasonally adjusted, from June 2021 to June 2022. The change in real average hourly earnings combined with a decrease of 0.9 percent in the average workweek resulted in a 4.4-percent decrease in real average weekly earnings over this period.

As Kevin D. Williamson puts it, “‘Americans are working more hours for less money’ is not a plausible definition of a strong job market.”

What about the two-quarter rule of thumb? Here is what the NBER says about it:

Most of the recessions identified by our procedures do consist of two or more consecutive quarters of declining real GDP, but not all of them. In 2001, for example, the recession did not include two consecutive quarters of decline in real GDP.

Hence, two consecutive quarters of decline are not necessary for a recession. Are they sufficient?

The NBER definition includes the phrase, “a significant decline in economic activity.” Thus real GDP could decline by relatively small amounts in two consecutive quarters without warranting the determination that a peak had occurred.

We’ll see when the data come out whether the first and second declines have been “by relatively small amounts”. Empirically, as economist Michael Strain observes,

Question: Out of the past 10 times the U.S. economy has experienced two consecutive quarters of negative economic growth, how many times was a recession officially declared?

Answer: 10

Addendum: The GDP shrinkage number is now out. It’s “only” a 0.9 percent decline, on top of the first quarter’s minus 1.6 percent. In its release reporting the data, the Bureau of Economic Analysis summarizes:

Real GDP decreased less in the second quarter than in the first quarter, decreasing 0.9 percent after decreasing 1.6 percent. The smaller decrease reflected an upturn in exports and a smaller decrease in federal government spending that were partly offset by larger declines in private inventory investment and state and local government spending, a slowdown in PCE [personal consumption expenditures], and downturns in nonresidential fixed investment and residential fixed investment. Imports decelerated.

That’s not 1929, but it’s definitely contraction. The factors that limited the decrease (exports and a “decrease” in federal spending that the BEA attributes to sales from the Strategic Petroleum Reserve, which are counted as offsets to spending rather than increases in revenue) are likely to be transient, while inflation will aggravate the recessionary factors. With real incomes declining, personal consumption, business investment and home buying are in for rocky times.

You can read about the White House spin here.

Another English-Improving Typo

At Ringside at the Reckoning, Paul Mirengoff writes about a possible conflict of interest at the Biden Justice Department. (See also here.) I have nothing to say about that, though I haven’t the slightest doubt that, had Donald Trump been reelected and thrown his Administration’s support behind the plaintiffs in Students for Fair Admissions Inc. v. Harvard, outrage would have boiled over if one of the lawyers who signed the government’s amicus brief had also been receiving a six figure salary from another pro-plaintiff amicus filer, even if that filer were merely a think tank rather than an entity with a very direct interest in the outcome of the case.

But conflicts of interest are, in these overlawyered times, evaluated by parsing ethics codes rather than applying moral intelligence. By the letter of the law, as Mr. Mirengoff notes, there may be no violation.

Be that as it may, the Ringside discussion includes this sentence: “Stanford has a similar policy and had filed an animus brief in the Harvard litigation before Karlan’s arrival at the DOJ.” (Emphasis added) I assume that “animus” is a typo for “amicus”, but what an excellent typo! Courts are overrun these days with briefs that are more animus than legal analysis, essentially op-eds with lawyers’ names attached. The legal system would be better off without them. If they can’t be prevented, at least we now have an adjective with which to label them.

The Quid Pro Quo?

Peter Schweizer sums up in bullet points:

• Thanks to a Treasury Department “interpretation,” Americans can still own stock in companies that were placed on a blacklist by the Trump administration because of their direct ties to the Chinese military.
• Thanks to the Biden administration, the “China Initiative” at the Department of Justice to crack down on Chinese attempts to acquire or steal American technology has been discontinued.
• Thanks to the Biden administration’s “green energy” enthusiasm, tariffs on solar panels made by Asian countries who are assembling or repackaging solar panels made in China were removed.
• The Biden administration has also signaled its intention to remove or lift other tariffs imposed by the Trump administration on Chinese products. It has also been friendlier toward Chinese companies such as Huawei and ByteDance (owner of TikTok) in recent weeks.
• And all of this has been done with zero concessions from the Chinese government on any of the outstanding diplomatic, military, strategic, health or trade issues that so concern most Americans.
• Because the Biden family has been so deeply involved and so vehemently denied their involvement with Chinese business, the next question is as inescapable as the first: Does the flow of money to the Biden family from China influence the foreign policy of the United States?

Let me add that, whatever his motives, Joe Biden couldn’t do all that by himself. If his foreign policy appointees and their civil service underlings viewed the Communist-controlled regions of China as a genuine threat, they would throw up obstacles to the President’s actions. One can only conclude that they don’t take the Chicoms seriously, at least not seriously enough to let spats with them distract from reordering the world along progressive, neo-dystopian lines. If the President were Bernie Sanders or Kamala Harris or Gavin Newsom or any other Democrat, our China policy would almost certainly be just about the same, even if the Chief Magistrate had never taken a single dirty renminbi.

Covid and Punishment

Until a few days ago, when I began making plans for a trip to Europe, I was blissfully unaware that anyone who boards an airline flight from a foreign country to the United States is required to present a negative Covid-19 test “conducted on a specimen collected no more than 1 day before the flight’s departure” or proof of having recovered from the disease within the past 90 days. So the Centers for Disease Control decreed in a 30-page ukase issued on December 2, 2021.

The December order superseded an earlier one that required tests but allowed a three-day window for performing them. The rationale for shortening the period was the appearance of the omigod omicron variant, which at that time was brand new and a topic of much fearful speculation, notwithstanding that all indications were that it was milder than earlier Covid strains. Nearly six months have passed since then. Omicron hasn’t proven to be an omega, and it now accounts for almost all cases in the U.S. The incremental risk posed by returning travelers is indistinguishable from nil.

Yet the CDC order remains in place, inconveniencing Americans on their way home and worse than inconveniencing the small number who test positive and are then trapped abroad until they recover. Even though the government is purportedly preventing their return “for the public good”, it will do nothing to ease their burden. The Administration that sends crack pipes “safe smoking kits” to drug addicts free of charge has no sympathy for citizens who may run up thousands of dollars of costs while mandatorily stranded in other countries.

What is the motive for this measure? It does nothing to protect public health, and the high priests of CDC can’t reasonably believe that it does. It would have had little chance of keeping omicron out of the U.S. if it had been issued while the strain was confined to South Africa. It is now as pointless as plugging a leak in the dike after the water has overflowed it. No other country, so far as I can tell, imposes a reciprocal requirement on travelers entering from the U.S. Does the virus act differently in Europe than in North America?

Is the CDC indifferent to the hardships that its policies entail? Or does it see Covid sufferers as sinners who deserve punishment? Or do its leaders just enjoy the exercise of arbitrary power? Whatever the answer, this episode is enough to demonstrate that the organization needs a thorough top-to-bottom overhaul, lest in the future it inflict yet graver damage on the health, safety and prosperity of the Republic.

Update (June 11, 2022): With obvious reluctance, the CDC has rescinded the Covid test requirement for entering the United States by air, effective at a minute after midnight Eastern Daylight Time on June 12th. The order rescinding the previous ukase concedes, perhaps with regret, “that the now-dominant Omicron variant, though more transmissible than prior variants, has generally caused less severe disease among those who are infected”. There’s no admission that it was irrational to try to keep out of the country a virus that is already freely circulating within it.

A Time of Troubles for the Disinformation Tsarina

This morning’s Washington Post carries the welcome news that the Disinformation Governance Board has been “paused” and may very likely die its cradle, as Bolshevik enterprises should. The piece, written by famous crybully Taylor Lorenz, laments “How the Biden administration let right-wing attacks derail its disinformation efforts” [paywalled; excerpts here and here] and quotes an Administration flunky as saying, “Nina Jankowicz has been subjected to unjustified and vile personal attacks and physical threats. In congressional hearings and in media interviews, the Secretary [Department of Homeland Security Secretary Alejandro Mayorkas] has repeatedly defended her as eminently qualified [link added by Stromata] and underscored the importance of the Department’s disinformation work, and he will continue to do so.”

Well, the prospective tsarina did have to endure mockery of her TikTok videos and criticism of her dismissal of Hunter Biden’s notorious laptop as a “Trump campaign product”, but her ideas about what disinformation is and how to combat it deserved condemnation. I went to the trouble of reading her book on the subject and summarized her recommendations, which amount to government supervision of social media, large-scale subsidies to pro-government news outlets, and tools “integrated into the user interface” designed “to change user behavior” on the Internet, that is, to make “disinformation” (as defined by the government) hard to access.

The government already has two agencies that deal with “disinformation”: the Cybersecurity and Infrastructure Security Agency (“CISA”) and the Global Engagement Center. The latter focuses on foreign governments and “non-state actors” (the approved euphemism for foreign terrorist organizations) and is a Trump Administration revival of a State Department office that President Obama shut down in 2015. It could be misused but seems harmless at the moment. CISA is a purveyor of government propaganda but not, so far as I can tell, a very effective one. Its work product includes comic books and rather silly “infographs”. As high school projects, they might get a B+.

It’s pretty obvious that the Disinformation Governance Board was created as a more robust organ, and it seems quite reasonable to infer that Tsarina Nina was chosen to head it because the DHS bureaucracy likes her ideas. To somebody like Taylor Lorenz, who seeks to confine the entire populace inside a left-wing bubble, effective pushback against those ideas is doubtless a tragedy. The rest of us have reason to be pleased.

Update (11:15 a.m.): The Tsarina has officially abdicated.

Further reading: Robby Soave, “Nina Jankowicz’s Faulty Record, Not Her Critics, Doomed the Disinformation Board”

Quote of the Day: Facts and Disinformation

Barton Swaim, “How Disagreement Became ‘Disinformation’” (Wall Street Journal, May 13, 2022):

One of the great ironies of American political life in the 2020s is that the people most exercised about the spread of false information are frequently peddlers of it. Their lack of self-understanding arises from the belief that the primary factor separating their side from the other side isn’t ideology, principle or moral vision but information – raw data requiring no interpretation and no argument over its importance. It is a hopelessly simpleminded worldview – no one apprehends reality without the aid of interpretive lenses. And it is a dangerous one.

Further on, Mr. Swaim notes how progressives, having fallen off one side of the disinformation horse, have remounted and fallen off the other:

Skeptics mostly attribute this new support for censorship to bad faith. I prefer a more charitable explanation. The new censors sincerely mistake their own interpretations of the facts for the facts themselves. Their opinions, filtered unconsciously through biases and experience, are, to them, simply information. Their views aren’t “views” at all but raw data. Competing interpretations of the facts can be only one thing: misinformation. Or, if it’s deliberate, disinformation.

It is in many ways a strange outcome. From the 1970s to the early 2000s, academic philosophies associated with “postmodernism” coursed through American higher education. They held that there was no objectively knowable truth, only subjective interpretation. As if to demonstrate postmodernism’s total impracticality, yesterday’s straight-A college students have now retreated into a risibly facile non-philosophy in which there is no interpretation, only objective “fact.”

There couldn’t be a more concise and accurate summary of the mindset of Disinformation Tsarina Jankowicz and her ideological colleagues. Odd how quickly they forgot their Foucault.

Covering for the DGB

A Washington Post editorial (which I didn’t see until it emerged from behind the pay wall) reassures readers: “Ignore the hysteria over the Disinformation Governance Board”. According to the Post, all is benign:

The Disinformation Governance Board (whose acronym is the Soviet-sounding DGB) is supposed to aid coordination among DHS offices as they counter viral lies and propaganda that pose a threat to domestic security. Done right, this is a useful function. Mr. Mayorkas mentioned campaigns by human smugglers targeting migrants to trick the Haitian community into thinking they could enter the United States without risk of deportation. Russia’s persistent efforts to influence U.S. elections are well known. Studying the “best practices” for stymying these attempts and sharing them with government actors could do a great deal of good.

What the board is not tasked to do is to establish what is true and what is false, or to push Internet services or anyone else to take a tougher line on expression in general. Indeed, the board has no operational authority at all.

Already, components of the agency are gathering knowledge about what rumors are circulating so that they might respond. They, as well as government actors charged with disseminating the facts to debunk popular falsehoods or with educating citizens on how to avoid being fooled in the first place, need to know how to execute their roles effectively – as well as how to do so without infringing on civil liberties. The board is supposed to ensure that these government authorities – from the Federal Emergency Management Agency as it counters scammers after natural disasters to the Cybersecurity and Infrastructure Security Agency as it instructs critical infrastructure companies on how to secure themselves against hackers – respect human rights.

As the Post mentions in passing, the Department of Homeland Security already includes a Cybersecurity and Infrastructure Security Agency. CISA’s efforts focus heavily on “resources that individuals; State, local, tribal and territorial (SLTT) governments; the private sector; academia; and others can use to understand the threat of malicious information activities and includes actions to mitigate associated risks from mis-, dis-, and malinformation (MDM) and foreign influence activities”. Unmentioned in the editorial is the State Department’s Global Engagement Center, whose mission is “To direct, lead, synchronize, integrate, and coordinate efforts of the Federal Government to recognize, understand, expose, and counter foreign state and non-state propaganda and disinformation efforts aimed at undermining or influencing the policies, security, or stability of the United States, its allies, and partner nations”.

What will the DGB add to the already existing agencies? Does it have a function other than giving employment to its executive director and a few other progressives? A “fact sheet” issued by the Department of Homeland Security purports to furnish the answer:

The Department is deeply committed to doing all of its work in a way that protects Americans’ freedom of speech, civil rights, civil liberties, and privacy. In fact, the Disinformation Governance Board is an internal working group that was established with the explicit goal of ensuring these protections are appropriately incorporated across DHS’s disinformation-related work and that rigorous safeguards are in place. The working group also seeks to coordinate the Department’s engagements on this subject with other federal agencies and a diverse range of external stakeholders. The working group does not have any operational authority or capability.

One who read that in a vacuum would infer that DHS has discovered that its anti-disinformation activities infringe civil liberties and need to be reined in, much as the Church Committee’s investigations led to new restraints on the CIA, FBI and other government intelligence operations. Strangely, the announcement of the creation of the DGB and initial reports about it made no mention of those alleged concerns.

The choice of the DGB’s executive director is likewise a clue to the thinking behind its creation. As I discussed in an earlier post, the appointee, one Nina Jankowicz, has written a book titled How to Lose the Information War, in which she laments the insufficiency of government anti-disinformation efforts and proposes three steps to remedy matters:

1. ”[S]et the guardrails of the internet and the social media platforms on which we share so much of our lives.” While saying that “we are hesitant to allow government bodies jurisdiction over our right to free speech”, she goes ahead and defends enhanced government supervision of social media.
2. ”Investments in journalism as a public good are critical to maintaining a healthy information environment in which disinformation can more easily be dispelled, and in which a trusted voice is readily accessible in times of chaos and turmoil.” If that doesn’t means government-funded media that will be endorsed as “trustworthy” information sources, I don’t know what she has in mind. She expresses nostalgia for the era when a handful of newspapers and television networks dominated the dissemination of news, and dissent from their monologues was confined to obscure publications on the fringes of public awareness. Americans were protected, it’s true, from claims that President Eisenhower was a communist agent and that fluoridation of water supplies would endanger children’s health – and also from the facts about Stalinist genocide in Ukraine, John F. Kennedy’s serious health problems and rampant womanizing, and the failure of the communist Tet Offensive in Vietnam. Media monopoly is a spreader of falsehoods, not a remedy.
3. Finally, Miss Jankowicz, doubting that the preceding two steps will be sufficient, advocates one more: “deep-rooted attempts to change user behavior” that are “integrated into the user interface of the platform – not buried in a help section or in a print newspaper advertisement”.

If DHS Secretary Mayorkas intends that the DGB will protect free speech, he may want to reconsider his choice of a guardian.

One may hope that the furor raised by the DGB will render it wholly ineffectual, but the only way to be sure of that is, if one may borrow Winston Churchill’s line about Bolshevism, “to strangle it in its cradle”.

The Unsung Villains of the Supreme Court Leak

Someone among the tiny group that has access to unreleased Supreme Court opinions – nine Justices, 36 clerks, 27 administrative assistants, an unknown but undoubtedly small number of IT staffers – filched a draft opinion and handed it to a Politico receiver of stolen goods. The opinion has caused a stir; the leak seems to interest only conservative commentators. President Biden’s silly statement denouncing the Court, in which he announced ex cathedra that Roe v. Wade “says what all basic mainstream religions have historically concluded”, didn’t contain even a pro forma “of course stealing judges’ papers is bad”. Asked directly, “Do you think that this leak has irreparably changed the Court?”, he ignored the question.

Chief Justice Roberts has ordered the Court’s marshal to investigate the leak. Whether the culprit will be found seems dubious, but there are three guilty parties who can be identified and who, although they almost certainly cannot be prosecuted, can be shunned by all polite company. They are Politico and the two writers whose names appear on the story proclaiming the leak: Josh Gerstein and Alexander Ward.

Neither the web publisher nor its employees innocently picked up the draft opinion from off the street. They knew that it was stolen. They knew that no Supreme Court opinion has ever, in the history of the United States of America, been released without the Court’s authorization, no matter how important or controversial its subject. They knew that, in the normal course of its activity, the Court would have published its decision within the next two months. They knew that the Justices often continue considering and refining opinions until shortly before they are announced. They knew that the Court’s effectiveness has for over two centuries depended crucially on trust among the Justices and their staff.

They knew and didn’t care. For the frisson of a “big story”, and almost certainly with the hope of assisting the Democratic Party, they peddled their ill-gotten goods and inflicted serious harm on our nation’s highest judicial body. Honorable men would have written a story beginning, “Today, a person connected to the Supreme Court attempted to give Politico confidential Court documents concerning an upcoming decision. Politico has returned the documents unread to the Court chambers and advised the Justices of the identity of the miscreant.”

One of the benefits of an unfettered press is that scoundrels eventually identify themselves. Remember their names and cover them with maledictions: Politico, Gerstein, Ward.

Addendum: It is instructive to compare progressive insouciance about the theft of a draft Supreme Court opinion to the fury unleashed against the computer repair shop owner who exposed the content of Hunter Biden’s famous laptop. In addition to being accused by prominent Democrats and former intelligence community leaders of peddling “Russian disinformation”, he “was bombarded with hate mail and death threats revolving around the idea that I was a hacker, a thief and a criminal” and eventually “was forced to close his computer repair business near the Biden family homes in Greenville, Delaware, after people started throwing vegetables, eggs and dog excrement at his store”. Messrs. Gerstein and Ward face no worse consequences than lionization for their “courage”.

Further Reading: Andrew McCarthy, “The Supreme Court’s integrity demands its leaker be prosecuted – and the decision released now”

From the Pen of the Disinformation Tsarina

If the information that we receive is going to be “curated” by the federal government, we should pay attention to the views of the curator. With that in mind, I expended ten bucks for the Kindle version of Nina Jankowicz’s book How to Lose the Information War. It’s easy to see why Biden minions wanted its author on their information control team. For the past several years, she has engaged in research on Russian disinformation campaigns. Her book includes chapters on the responses of the United States, Estonia, Georgia, Poland, Ukraine and the Czech Republic, responses that she judges to have been sadly inadequate. So she brings a plausible aura of expertise to her new post as executive director of the Department of Homeland Security’s Disinformation Governance Board (a name that could have been coined only by some bureaucrat who privately loathes it).

She has a second qualification that comes through as one browses through the book. She is a one-dimensional political partisan: There is a “near-complete lack of evidence” for “alleged anti-conservative bias on the [social media] platforms.” [p. 130] It is a “falsehood” to say “that the Biden family engaged in corrupt activity in Ukraine”. [p.149] In what is clearly a sub silentio allusion to the New York Post’s coverage of Hunter Biden’s “laptop from hell”, she commends Twitter for “no longer allow[ing] the distribution of hacked materials” (the ex post facto excuse for blocking the Post reporting). [p. 130] The Trump Administration enacted a “travel ban on people from predominantly Muslim countries”. [p. 22] The Mueller Report is mentioned but not its most dramatic disinformation-related finding, that the “Steele Dossier”, the bludgeon that Democrats wielded for three years against Donald Trump, was a work of fiction. [pp. 23 and 31] And so on.

So what prescription does Tsarina Nina have for disinformation? After six chapters of case studies, Chapter 7 deals with remedies. She quotes testimony that she delivered before a Senate committee in 2018 regarding what will not suffice:

Even if the United States Government were to acknowledge the threat posed by Russian influence campaigns today in no uncertain terms, and we were to walk out of the hearing room and secure beyond a shadow of a doubt the country’s election infrastructure; even if we hermetically sealed our information environment from inauthentic users and false or misleading information, and if social media companies finally put forth a good faith effort to put users and the security of our democracy first; even then, we would still not successfully dispel the threat our democracy faces from malign actors’ political influence operations. [p. 137]

She goes on to say –

These short-term solutions do not address the underlying societal fissures that left us vulnerable to information operations in the first place. As Estonia, Georgia, Poland, Ukraine, and the Czech Republic have learned, it’s past time to begin a generational investment to build resilience within populations and target the root causes of our weaknesses. [p. 139]

She has already observed that –

many of the countries I’ve profiled here still believe that good communications or the establishment of a compelling narrative is the key to winning the information war. They’re not alone. This sentiment is popular in the West as well. It is misguided, but persistent. [p. 134]

The “generational investment” is not, then, to go toward expounding truth and countering falsehood. The Tsarina and I almost agree here. Government investment in “narratives” generally has a low ROI, particularly where citizens are left free to dispute the narrative. That is as far as our agreement goes.

The first, near-term element of the Tsarina’s program is –

to set the guardrails of the internet and the social media platforms on which we share so much of our lives.

That begins with setting clear and unified definitions of not only the rules of the road, but the vehicles on them. . . . Imagine how difficult driving would become if neighboring states or countries defined simple concepts like right of way or speed limits differently. This is essentially how social media platforms operate today. Each has its own definition of disinformation, of hate speech, and of targeted abuse, among other concepts, and each deals with each of those concepts differently. [p. 139]

While conceding that “we are hesitant to allow government bodies jurisdiction over our right to free speech”, she justifies the intrusion by the fact that “social media platforms are highly curated, highly addictive content farms that have total control over what we see and how we communicate; it’s time they do it in a way that promotes the greater democratic good and not just their bottom line”. [pp. 139-40] The same phenomenon – “control over what we see and how we communicate” – is often cited by right-wing critics of social media. The difference is that the latter argue, rightly or wrongly, for limiting the ability of the platforms to block content that they don’t like. The Tsarina wants to expand social media censorship and give the government control over how the censors operate.

Phase two of the Tsarina’s plan is a great expansion of government-funded media.

I hope to one day see an America that invests more in journalism as a public good, not only through the variety of philanthropic initiatives to support the industry that have proliferated since 2016, but through further government investment in public broadcasters. In 2018, the US government allocated $447 million to the Corporation for Public Broadcasting, which funds the Public Broadcasting Station and National Public Radio, as well as their local affiliates. In comparison, the British Broadcasting Corporation’s budget for the same year was over $6 billion, despite the fact that Britain’s GDP is about a fifth of the size of the United States’. [p. 141]

She laments that the BBC didn’t save Britain from Brexit but happily notes that 57 percent of the British public regards it as the country’s most trustworthy news source (at least according to the BBC survey that she cites). She continues –

Investments in journalism as a public good are critical to maintaining a healthy information environment in which disinformation can more easily be dispelled, and in which a trusted voice is readily accessible in times of chaos and turmoil. [p. 142]

Put slightly differently, the U.S. government needs a propaganda arm and has been remiss about funding it. That need is all the more acute, because –

In New Jersey [where the Tsarina grew up], no one is ever very far from several bustling metropolitan areas, and the coverage afforded by any one of those cities’ newspapers or radio and television stations is applicable and useful for daily life. But imagine a similar situation in the nation’s heartland, and you begin to understand why so many people are flocking to dubious websites that replicate their worldview; the connective tissue between the local and the national or international has been lost. [p. 141]

Still, social media “rules of the road” and tax-funded subventions to friendly newspapers and TV stations aren’t enough.

Even with greater investments in quality journalism, people will still need help navigating the unending flow of information that characterizes the modern media environment, as I found in every country I visited over the course of researching this book. In Estonia, education and outreach form the backbone of the government’s renewed efforts to build an inclusive Estonian identity that is resilient to outside influence. As Irene Käossar, the head of Estonia’s Integration Foundation, told me, the government is no longer trying to express “why” ethnic Russians should pursue citizenship or learn Estonian language; instead, the onus is on the government to figure out how to “change thinking.” [p. 142]

Estonia is a tiny country threatened by a huge, hostile neighbor that conquered it once and shows many signs of seeking to absorb it again. An unassimilated Russian minority is a threat to its very existence. I will wager a good deal, though, that Nina Jankowicz would find Estonia’s policy abhorrent if pursued by a country with which she didn’t sympathize. Note that she has taken an initiative to persuade resident aliens to “pursue citizenship or learn Estonian language” as a template for a government program to furnish “help navigating the unending flow of information that characterizes the modern media environment”. These things are not quite like one another.

The nature of the “help” that the government is to provide and how it is to be inculcated are the vaguest parts of the Tsarina’s plan. She complains that the social media platforms have made only perfunctory attempts to educate their users:

So far, efforts to raise awareness of media and digital literacy best practices on the platforms have been lackluster; in its “Tips to Spot False News,” which is available online in the “Help Center” and has run in several of the world's major newspapers (arguably not the audience that most needs assistance spotting “false news”), Facebook even writes “reliance on unnamed experts may indicate a false news story,” a tip that might cause readers to discount reporting that uses anonymous or background sources, as many whistleblowing investigations do. More worryingly, the Trump administration has used this tactic to question critical reporting from a variety of outlets. [Did I mention that the Tsarina is a Thoroughly Progressive Tsarina?]

Overall, platforms’ efforts to promote media literacy awareness have been surface-level distractions, not deep-rooted attempts to change user behavior. They should be developed in broad consultation with experts in the field and be integrated into the user interface of the platform – not buried in a help section or in a print newspaper advertisement – at the platform’s expense. Like reminders to grab an umbrella or do your civic duty, social media platforms can empower users to be more discerning consumers of information. It is not a question of ability; it’s a question of volition. [p. 145, footnote omitted; emphasis added]

What the tools “integrated into the user interface” would look like is hard to discern, but it certainly sounds like a mechanism not simply to warn users about trollish Internet tricks but to make it impossible, or nearly so, to get access to government-disapproved content. That the Tsarina favors limiting choices rather than relying on users’ judgment is suggested by the scenario with which she closes the chapter, a hypothetical happy ending six years hence.

It’s Election Day, November 2028. The latest polls are close; it will probably be another nail-biter. But unlike eight or twelve years ago, this campaign hasn’t been characterized by the rancor of the past. After the scandalous foreign hack-and-leak operations that marked the 2016 and 2020 elections, affecting first the Democratic and later the Republican Party, a remarkable thing happened. Party leaders, editors-in-chief of the country’s newspapers, major broadcasters, and even the social media platforms convened to sign a Declaration on Truth and Integrity: they would not discuss, cover, or amplify content for which a legitimate source could not be established. This bipartisan effort did not eliminate all attempts at foreign interference, but rather than boosting the bogus claims, repeating them on the airwaves, printing them on front pages, and retweeting and sharing them online, it relegated them to the fringes of the internet, where they never gained much traction. The publicity surrounding the declaration served as a primer and awareness campaign for millions of Americans who believed for years that foreign interference was a specter politicians unleashed for personal gain.

In the months after the declaration, while the new administration settled into office, Congress took stock of what the document had achieved. It engendered cooperation between politicians and the fourth estate, across social media platforms, and between all these groups and law enforcement, which was notified as suspicious posts were encountered. They worked to build on the informal structure they created, creating an independent government hub to serve as coordinator, watchdog, and educator. The new body worked with civil society to write a curriculum for schools and professional development programs, doled out educational grants, and advocated for users’ rights in the development of new technologies on social media platforms. It also acted as a neutral researcher, employing an apolitical group of experts to act as a watchdog on questions of hate speech, political bias, disinformation, and “fake news,” among others. The government allocated greater funding to American public broadcasters, encouraging a more balanced news landscape.

In 2028, the information war is still not won. There were and continue to be challenges. It is not utopia; the project of democracy will never be. Online abuse, while on a downturn, is still a problem. But people are beginning to have more inquisitive, respectful conversations, based on responsible, level reporting. They are recognizing the humanity in their fellow avatars. Americans regularly have heated debates about how to protect free speech in the age of the internet. But unlike during the height of the information war, that speech is not being manipulated to drive division and chaos from without and within.

This may only be a dream for the future, but it is one that feels possible to achieve. [pp. 146-47]

The dream of the totalitarian utopians, from Rousseau and Robespierre to Marx and Lenin: All will be peace and harmony when the wise and the virtuous shape how everyone else is permitted to think.

Further Reading: Jonathan Turley, “Biden’s ‘Mary Poppins of Disinformation’ the perfect nanny to tidy up mess of free speech?”

The Disinformation Fighters

The most interesting fact, to my mind, about the Disinformation Governance Board is the silence that surrounded its creation. Secretary of Homeland Security Mayorkas announced it this afternoon at a Congressional hearing on his department’s budget for fiscal year 2023 in response to what I assume was a planted question from a Democratic representative. The new board obviously wasn’t a spur-of-the-moment idea. It has already hired an executive director, Nina Jankowicz, who tweeted after the secretary’s announcement:

Cat’s out of the bag: here’s what I've been up to the past two months, and why I’ve been a bit quiet on here.

Honored to be serving in the Biden Administration @DHSgov and helping shape our counter-disinformation efforts.

We may safely assume that DHS didn’t decide that it needed a disinformation board on Day 1 and start talking to potential staff on Day 2.

The media reaction has also been interesting. Except for a paragraph buried far down in this morning’s Politico Playbook, I haven’t been able to find a word about it anywhere except on right-leaning sites. The Daily Mail and Fox News have stories. Unless Google is falling behind, the news didn’t immediately interest the New York Times or the Washington Post or the Wall Street Journal. (As regular WSJ readers know, the news operation is distinctly left-wing; I imagine, though, that the editorial page will have something to say tomorrow morning.)

One might have thought that a governmental body with a mandate to combat “disinformation” would arouse a modicum of interest on the Left. Do progressives recall the House Committee on Un-American Activities or the Defense Department’s thankfully short-lived “Total Information Awareness Program”? One fears that they do, but as models rather than warnings.

No doubt Secretary Mayorkas and Executive Director Jankowicz are certain in their hearts that the Disinformation Governance Board will be entirely benign, but they can’t have thought that their opinion would be universally shared. The fact that they kept the DGB under wraps is strong evidence that they wanted to keep this venture into manipulating opinion out of the public eye until it was ready to roll.

The new executive director, by the bye, doesn’t seem particularly skeptical of disinformation that supports her prejudices. As the Daily Mail report observes, she was sure that Hunter Biden’s laptop was a “Trump campaign product”. She also swallowed without reservation reports that Russia was paying the Taliban bounties for killing American soldiers, an implausible tale (did the Taliban need incentives to do that?) to which the U.S. intelligence agencies eventually assigned “low to moderate confidence”.

The idea that the government has a legitimate role in identifying false statements about political issues and cleansing them from the public square has nothing to recommend it. I’d like to think that, somewhere in the recesses of their minds, Alejandor Mayorkas and Nina Jankowicz and the serried ranks of left-wing journalists sense that. Their silence may be a sign of guilty consciences. Unfortunately, guilt may not be a sufficient deterrent to crime.