During the confirmation hearings of now Justice Amy Coney Barrett, I repeatedly objected to the clearly false narrative that she was nominated to vote to strike down the Affordable Care Act in the pending case of California v. Texas. The case was highly unlikely to result in such a decision and the Democrats knew it. The case was focused on a highly technical and limited issues of severability. It would either be resolved on that limited basis or dismissed for standing. While Barrett might view the ACA as unconstitutional (as many do), I noted that she was more likely to dismiss the challenge or sever the individual mandate than to strike down the Act in the case. That is what she did in joined the 7-2 decision to dismiss the case. Continue reading “Will The Senate Democrats Now Apologize To Justice Barrett?”
Below is my column in USA Today on the controversy involving the acquisition of metadata evidence on members of Congress and the media in the leak investigation launched during the Trump Administration. We recently discussed the questionable reporting by the New York Times concerning the lead prosecutor, but far more serious questions remain if we are going to reach any resolution on protecting journalists, including the question of what is a journalist.
Here is the column:
Below is my column in The Hill on decisions issued by the Supreme Court in recent weeks and how they have served as a retort to those who are calling for court packing or major changes in the institution. As noted below, we expect to see more ideological divisions emerge this and next week in some of the outstanding “big ticket” decisions. However, the Court seems to have front-loaded a line of cases refuting the arguments that it is dysfunctionally and hopelessly divided along ideological lines. Today, the Supreme Court issued two more nearly unanimous decisions (with only Justice Sotomayor concurring and dissenting in part in both decision). The decisions were Terry v. United States and Greer v. United States.
Here is the column:
For over a year, there has been one fact that has been repeated in literally thousands of news stories: former Attorney General Bill Barr ordered the clearing of Lafayette Park on June 1, 2020 to allow former President Donald Trump to hold his controversial photo op in front of St. John’s Church. From the outset, there was ample reason to question the claim echoed across media outlets. As I noted in my testimony to Congress on the protest that month, the operation was clearly a response to days of violent and destructive protests. Now the Inspector General has completed its investigation and the report debunks the conspiracy theory that the Lafayette Square area was cleared to make way for the Trump photo op.
Below is my column in the Hill on the future of the filibuster and why this may be the most credible period for the use of such a compromise-forcing rule. There have always been good-faith arguments against the use of such a rule as inhibiting democratic voting. After all, the rule blocks bare majority voting. However, with a razor-thin margin in both houses, the use of such a rule can help force greater dialogue and compromise in Congress, which most voters indicate that they want in polls. It now appears that Sen. Joe Manchin (D., W.V.) will block the federal voting rights legislation even without a filibuster. As a result he was attacked as a “not very bright” aider and abetter and “cowardly, power-hungry white guy” by the left. Sen. Dick Durbin’s press secretary on the Judiciary Committee even curiously declared that democracy should not be “in the hands of a man who lives in a house boat.” The furious response explains why Manchin has been one of just two Democrats willing to demand compromise. The Republicans have roughly the same number willing to push from that side. However, combined these senators are seeking bipartisan agendas in a deeply divided nation. Killing the filibuster will remove the key pressure to seek bipartisan approaches.
Here is the column:
Below is my column in The Hill newspaper on the Supreme Court accepting a major new challenge over abortion with Dobbs vs. Jackson Women’s Health Organization. After years of exaggerated coverage of the threat of past cases, this could well be “the big one” for pro-life advocates seeking to substantially curtail Roe and Casey.
Here is the column:
The media went into a frenzy this weekend when the bonny Prince Harry gave a huge Hurrumpf to the First Amendment. On a show appropriately called “the Armchair Expert,” Harry declared the First Amendment “bonkers” and expressed frustration of how it protects the media in its “feeding frenzy” over his life. Harry’s criticism of the First Amendment can be dismissed as the unfamiliarity of a royal refugee. However, it is actually far more serious than that. Harry and his American wife Meghan Markle have attacked media rights in England and succeeded under the laws of the United Kingdom. They are now joining a growing anti-free speech and free press movement in the United States. Continue reading “The “Bonkers” Interview Of Bonny Prince Harry: Why The Attack On The First Amendment Should Concern Americans”
Below is my column on the recent Colonial Pipeline attack. President Joe Biden and his Administration (as well as the media) has referred to the actors as “criminals” and “hacker” but notably not “terrorists.” Many cyberattacks are forms of extortion. They seek money from businesses to release data. This is different. This was an effort to coerce a population; to cause economic chaos.
Notably, DarkSide announced that it would shutdown its operations after receiving the ransom, an announcement heralded by many. It is a dubious claim. First, the declaration serves assure the public and to tamp down calls for a global hunt for the culprits. Second, it is meaningless. Whether DarkSide continues as a moniker or as a functioning organization, we just paid off terrorists. We long maintained a policy not to yield to terrorism because it fuels more attacks. DarkSide and other such attacks have proven how ineffective we are in preventing such attacks or defying such demands. These are despicable people willing to cause deaths and social disarray, but they are also rationale actors. For the moment, cyber terrorism works and the success of this attack is not going to lead to a unilateral ceasefire from cyber gangs.
We have been discussing the effort in Congress to punish dissenting viewpoints among members on issues ranging from the Jan. 6th riot to the pandemic to racism. This has included sweeping calls for members to be disbarred or expelled for their criticism of the 2020 election or continued questioning of election irregularities. Rep. David Cicilline (D., R.I.) has been one of those calling for punishment of members who have the temerity to disagree with his view of the election or the riot. Now, Cicilline is asking Democratic colleagues to sign on to a resolution to censure three House Republicans who are accused mischaracterizing the Jan. 6 riot, including refusing to call it an “insurrection.” It is the latest attempt to regulate how members and others discuss issues, dictating viewpoints by controlling speech used to express views.
Below is an updated version of my column in The Hill on Facebook’s decision to uphold the ban on former president Donald Trump. Notably, this weekend, Twitter took it upon itself to add a gratuitous response to an observation made by Donald Trump Jr. after he tweeted “Biden isn’t the next FDR [Franklin Delano Roosevelt] he’s the next Jimmy Carter.” Twitter took it upon itself to say that many are “confused” by the remark since Carter was a great humanitarian and noble prize winner. It was a telling moment. These companies now act as either censors as officious intermeddlers when it comes to comments made on the platforms. They view themselves as a party to any postings and that viewpoints must be corrected or clarified to advance the corporate position.
Here is the column:
Below is my column in The Hill on the Supreme Court’s rejection of the case of a former West Point cadet who was barred from suing over the handling of her alleged rape. The case would have allowed a reconsideration of the Feres Doctrine, one of the most damaging and pernicious doctrines ever created by the Supreme Court. Continue reading “The Supreme Court Fails To End The Feres Doctrine . . . Now It Is Up To Congress”
The decision of the board to uphold the decision to ban Trump but reconsider his lifetime ban may seem transparently convenient for many. However, there is precedent. One of my favorite trial accounts is from Ireland where an Irishman was accused by an Englishman of stealing a pair of boots. The guilt of the defendant was absolutely clear but the Irish jury could not get itself to rule for the Englishman. Instead, it acquitted the Irishman but added a line, “We do believe O’Brien should give the Englishman back his boots.” Case closed. Continue reading “Facebook Upholds Trump Ban But Admits Permanent Ban Lacked Any Objective Standard”
In 1964, Stanley Kubrick released a dark comedy classic titled “Dr. Strangelove or: How I Learned to Stop Worrying and Love the Bomb.” The title captured the absurdity of getting people to embrace the concept of weapons of mass destruction. The movie came to mind recently with the public campaign of Facebook calling for people to change her attitudes about the Internet and rethink issues like “content modification” – the new Orwellian term for censorship. Continue reading “Evolving With Big Tech: Facebook’s New Campaign Should Have Free Speech Advocates Nervous”
The House Democrats, with the support of President Joe Biden, are set to vote to approve the establishment of the “State of Washington, Douglass Commonwealth” as our 51st state today. I had testified and written about D.C. statehood for decades and, as noted in a recent column, I believe that the best interests of both the country and the district residents is found in retrocession, not statehood. Continue reading ““State of Washington, Douglass Commonwealth”: House Democrats Set To Approve D.C. As The 51st State”
The fallout over the comments of Rep. Maxine Waters (D., Cal.) continued as Democrats were asked to condemn her call for protesters to stay in the streets and get more confrontational. I recently wrote a column on how Waters had become the best possible witness for Donald Trump in her own lawsuit against him. Waters was denounced by Judge Peter Cahill for undermining not just any conviction in the trial of Derek Chauvin but the court itself in seeking to carry out its constitutional function. It would seem a simple matter for responsible people to condemn Waters’ inflammatory remarks but Speaker Nancy Pelosi (D., Cal.) defended her and refused to criticize the comments. Earlier this year, Pelosi condemned Trump for criminal incitement and pushed through his impeachment for using similar words on Jan. 6th. Waters was also defended on CNN where media figures supported her call for protesters to stay in the streets and get “more confrontational.” Continue reading “Pelosi Refuses To Criticize Waters Despite Court Denouncing Her Remarks For Undermining The Chauvin Trial”