SCOTUS moves against the Bureaucracy

 Jan Wolfe and Dave Michaels at the Wall Street Journal.

It's probably a good thing to curb the power of Administrative Judges. Too often, they just side with the bureaucracy that employs them.

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Supreme Court Opens Path to Curbing FTC, SEC Powers

The Supreme Court on Friday issued an opinion that will make it easier for businesses to challenge the way government enforcers use special in-house courts to block mergers, punish stockbrokers and money managers, and go after allegedly unfair business practices.

In a unanimous decision, the justices said people and businesses subjected to administrative proceedings at the Federal Trade Commission and the Securities and Exchange Commission can seek to enjoin, or block, those proceedings by suing in U.S. District Court and raising constitutional arguments there.

The opinion dealt with two related cases, Axon Enterprise v. FTC and SEC v. Cochran. While it addressed a narrow jurisdictional question, it highlighted the court’s increasing skepticism toward administrative tribunals run by federal agencies.

“This foreshadows hard days to come” for the FTC, said William E. Kovacic, a law professor at George Washington University who was the commission’s chairman from 2008 until 2009. “There is evident discontent in the court about the structure and operations of the FTC.”

Writing for the court, Justice Elana Kagan said all the relevant factors “point in the same direction—toward allowing district court review of…claims that the structure, or even existence, of an agency violates the Constitution.”

Plaintiffs in both cases will now move forward in lower courts with arguments that administrative law judges are too difficult for the president or his appointees to remove, violating the separation of powers laid out in the Constitution. Friday’s decision didn’t address those questions.

Justice Kagan wrote that the FTC isn’t well-suited to deciding constitutional questions about its own power.

“The Commission knows a good deal about competition policy, but nothing special about the separation of powers,” Justice Kagan wrote.

While joining the unanimous decision, Justice Clarence Thomas wrote a separate opinion to reiterate his long-held concerns about tribunals run by administrative agencies. He said in a future case the court should address the “serious constitutional issues” raised by granting these administrative tribunals too much authority over people’s rights and livelihoods.

The FTC enforces competition and consumer-protection laws and frequently sues to block mergers using its in-house court. The agency in December challenged Microsoft Corp.’s purchase of Activision Blizzard Inc. in its administrative court.

The SEC’s domain is focused on investor-protection laws, and for years it used the administrative courts to sue regulated professionals such as stockbrokers, money managers and public-company accountants. Some brokers and money managers complained the deck was stacked against them and have waged a yearslong battle to oppose the SEC’s use of the special courts.

The FTC and SEC argued that the parties to the administrative proceeding must wait to lose at the agency tribunal before they can raise such constitutional questions in federal court.

The FTC case dates back to 2018, when Axon Enterprise, based in Scottsdale, Ariz., said it was buying a smaller competitor in the market for police body cameras, Vievu LLC, for $13 million. In January 2020, the FTC brought an administrative action to unwind the consummated merger, saying the deal had lessened competition in a concentrated industry.

The Supreme Court Is Harming Public Health and the Environment

 Here are Lawrence Gostin, JD, and Sarah Wetter, JD, MPH at jamanetwork.com. Both are at the O'Neill Institute for National and Global Health Law at Georgetown University in Washington, DC.

Their Viewpoint article is a good example of supposedly educated and knowledgeable professionals going off the rails because they fail to understand fields outside their profession - and even their profession.

I've added some comments in italics to focus on points that might be interesting to think about.

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A fundamental shift in the Supreme Court was set in motion in 2020 with the death of Ruth Bader Ginsburg. President Trump appointed Amy Coney Barrett as his third appointee, forming a conservative 6-3 supermajority. The Supreme Court’s jurisprudence is having a profound effect on public health, safety, and environmental policy. This Viewpoint looks back at the Supreme Court’s 2021 and 2022 terms and forward to the 2023 term and beyond.

Public Health Powers During the COVID-19 Pandemic

Rather than deferring to scientific decisions during the COVID-19 pandemic, the Supreme Court often struck them down. The justices invalidated New York and California’s restrictions on religious gatherings (eTable in the Supplement) despite considerable evidence that congregate settings pose a high transmission risk. The Supreme Court similarly overturned the Centers for Disease Control and Prevention eviction moratorium despite findings that evictions contribute to the spread of SARS-CoV-2.

The issue for the Supreme Court is upholding the law, not whether the science correct. The focus on transmission risk ignores important tradeoffs. The failure to consider important tradeoffs is a fundamental analytical flaw.

The financial cost of eviction moratoriums selectively impact landlords. If an eviction moratorium is deemed desirable by society, Isn't it society that should pay, not only landlords? Why would politicians penalize only landlords - only for their own self-interest. An eviction moratorium is economically similar to a randomly applied substantial tax on landlords. Isn't the long-run response to this substantial risk to move the supply curve of rental residences to the left? Doesn't that reduce quantity and increase price?

The justices similarly blocked an Occupational Safety and Health Administration emergency temporary standard ordering large businesses to either require COVID-19 vaccination or regularly test employees. Scientists from the Occupational Safety and Health Administration estimated it would prevent 6500 deaths and 250 000 hospitalizations over 6 months. The Supreme Court narrowly upheld a mandate from the Centers for Medicare & Medicaid Services for health care workers to be vaccinated or undergo testing.

False and Misleading Scientific Information

Public trust in science is vital not only for an informed populous but also to enhance compliance with public health guidance. Yet, §230 of the Communications Decency Act protects social media companies against lawsuits regarding users’ posts even if they are false, misleading, or extremist.

The Supreme Court will decide whether §230 should shield giant technology companies from accountability. The Supreme Court is also considering whether to hear challenges to laws in Texas and Florida barring online platforms from removing certain political content. The outcome of these cases could upend the internet with vast significance for regulation of online media content.1

As we have seen over and over again, those who proclaim both truth and the necessity of stopping what they view as non-truth have been wrong on the former and produced much damage with the latter - including a loss of freedom that benefits those in power at the expense of others.

Environmental Health

The air we breathe and the water we drink have profound effects on health. Last term, the Supreme Court invalidated the Clean Power Plan, which would have required power plants to install energy-efficient devices and demonstrate progress toward sustainable energy. The justices relied on the “major questions” doctrine, which holds that Congress must explicitly authorize agency actions with major social or economic effects.

This is another issue of law for the Supreme Court. The authors ignore tradeoffs here, too. Installing energy efficient devices does not necessarily make sense. If it makes economic sense it would be done without a requirement - assuming Government had not already screwed up the economic setting.

Because most federal regulations have wide social and economic effects, the Supreme Court’s reasoning could prove fatal to many health, safety, and environmental regulations. Laws grant agencies broad discretion because Congress cannot anticipate every health threat, thus relying on agencies to confront new challenges. Federal agencies like the Environmental Protection Agency have far more subject matter expertise than Congress or the courts.

And, as we have seen, Federal Agencies also have a substantial amount of self-interest that effects their decisions and hurts others. Economists did not invent the "agency problem" for no reason.

This term, the Supreme Court could further weaken the Environmental Protection Agency by narrowing the definition of “waters of the United States” under the Clean Water Act.2 The Supreme Court is widely expected to supplant the agency’s expertise with the court’s own judgement. The narrowed definition would exclude wetlands and the oil, gas, mining, and agricultural industries would be able to discharge pollutants into wetlands without even needing a permit. This would threaten natural habitats as well as waters for recreation, fishing, and drinking. Just as climate change has become a defining issue, the Supreme Court is curtailing regulatory action to ensure a cleaner environment.

The Environmental Protection Agency has provided many wonderful examples of the damage that cam be caused by economic agency issues and the failure to address tradeoffs in a reasonable manner. What makes the authors think that the current practices and laws get it "just right"? If Government and Agency history is a guide, it's more likely to be too much now. 

Firearm Safety

A conservative majority has drastically expanded the reach of the Second Amendment, limiting government action to prevent gun violence. Last term, the Supreme Court invalidated a New York law that, since 1911, has required a person to show proper cause for a license to carry a handgun outside the home. Lower courts have used this precedent to invalidate other long-standing, common sense gun laws.

On February 2, 2023, the Fifth Circuit Court of Appeals ruled unconstitutional a federal law banning gun possession by people subject to domestic violence restraining orders.3 Guns, now the leading cause of death in children and adolescents aged 1 to 19 years, have already taken more than 4000 lives in the US in 2023, with mass shootings occurring every day.4

The authors' comment reflects an almost total misunderstanding of the impact of gun laws. Virtually all the best academic papers show this. In particular, many "common-sense" gun laws have been statistically shown to be either ineffective or to worsen the problem. If you want to get the real story, try "More Guns Less Crime" by John Lott. Pay particular attention to the sections where he goes through the lies and lousy statistics of those who try to discredit him. also check out the Center for Crime Prevention Research.

Abortion Rights

Last term marked the first time in history the Supreme Court withdrew a constitutional right, finding that a right to abortion was not “deeply rooted in our Nation’s history.” At least 13 states have fully banned abortion and 5 states have partial bans on abortion while proposed abortion bans remain blocked in 8 states. These restrictions have caused a patient’s average travel time to an abortion facility to more than triple.

I love it. Competition among the States for population is what might work best, just as it often does elsewhere. By the way, can you find any right to abortion in the Constitution. That said, I am for allowing it under broad circumstances.

Abortion bans have the most significant effect on individuals who lack the resources and support to travel longer distances as well as minors, racial and ethnic minority individuals, non-English speakers, and migrants. The ruling spurred crucial legal questions, including whether emergency medical care must include abortion services. Litigation is also ongoing over approval of abortion medications by the Food and Drug Administration.

LGBTQ+ Rights

Last term, the Supreme Court ruled that a city-funded Catholic social services agency could deny same-sex couples the opportunity to foster children in defiance of Philadelphia’s antidiscrimination law. The unanimous decision centered on a technicality in the law. More alarming was a concurring opinion by Justices Alito, Gorsuch, and Thomas that argued for overturning the 1990 ruling in Employment Division v Smith,7 which established that generally applicable laws do not require religious exemptions. The justices’ advocacy for religious rights could undermine vaccination mandates, while also legitimizing discrimination against the LGBTQ+ community.

If the law is upheld, so be it. And if some organizations have adoption practices you don't like, why not go elsewhere? Better to have more freedom for individuals and groups than less - unless it eliminates choices (as opposed to simply "going down the street") or threatens substantial harm to others (e.g. assault by activists).

This term, the Supreme Court will decide whether businesses open to the public can refuse to serve LGBTQ+ individuals. If the Supreme Court places commercial expression above LGBTQ+ rights, it could relegate LGBTQ+ individuals to a disfavored class, further narrowing access to goods and services. LGBTQ+ people already face higher rates of violence and discrimination, putting them at risk for physical and mental harms.

Refusing to serve is not equivalent to violence. I favor freedom over tyranny - even when the freedom allows behavior I don't like to persist.

Medicaid

This term, the Supreme Court will decide whether Medicaid recipients can challenge state denials of federally guaranteed benefits. A federal law known as §1983 has long granted individuals denied benefits access to the courts.8 Decades of precedent support a judicial pathway to enforce rights under federally funded programs (eg, Medicaid, the Supplemental Nutrition Assistance Program, and Temporary Assistance for Needy Families). Yet the Supreme Court may find these programs are simply contracts between states and the federal government, with no enforceable rights. Low-income individuals would have federally protected rights, but no remedy when states deny benefits for which they are eligible. Medicaid and the Children’s Health Insurance Program are among the few safety nets for low-income individuals, and are used by 90 million individuals in the US. Especially as states wind down COVID-19 protections, Medicaid enrollees need an outlet to safeguard benefits wrongfully denied.

Speculation? Guilty until proven innocent?

Health Equity

This year, the Supreme Court is poised to rule on cases that go to the heart of equity in US society. In 2 consolidated cases, the Supreme Court is expected to invalidate affirmative action designed to increase diversity and opportunity in higher education. Yet as Justice Ketanji Brown Jackson stated, education is a major social determinant of health. American Indian, Black, Hispanic, and Pacific Islander populations remain vastly underrepresented in higher education. These groups experience less economic opportunity, less representation in the health care workforce, and fill fewer leadership positions.

Ok, let's have diversity in higher education. Hire more Conservatives. I favor merit, not diversity or equity. The history of actions to increase diversity and equity suggests less diversity, less merit based decision making, less freedom, more cancelation, and is probably a large contributor to our current steep cultural downtrend.

Forbidding racial- and ethnic-based decisions could also derail public health programs designed to reduce health inequities by prioritizing underserved populations. The Supreme Court could also overturn the Indian Child Welfare Act (ICWA) that prioritizes placement with tribal families when American Indian children are removed from their homes. The ICWA was enacted in 1978 in response to a history of forcibly removing American Indian children from their families to send them to boarding schools as a form of cultural genocide.10 Medical organizations argue that the ICWA promotes stability, helping children overcome trauma.

Hmm, removing children from their homes and placing them on a priority basis in homes that may be less than the best choice? The past is the past. What makes the most sense now? How about leaving the priorities up to those involved instead of mandating them?

Conclusions

The Supreme Court’s 6 conservative justices are bringing vast changes to the public health legal landscape. The Supreme Court is impairing the government’s ability to act in the public interest and undermining safeguards for groups that have been historically marginalized. Yet far from affecting only a subset of US individuals, the justices are weakening public health, with health and equity on the line.

Yes, we've seen what happens to public health as a consequence of Government micro-management - and it is not pretty.

Is it the Supreme Court that is impairing the Government's ability to act in the public interest? Is law supposed to be upheld or is it supposed to be subjugated to what the authors and their ilk want? 

AI and misinformation - stand by to be defamed

 Jonathan Turley alerts us to the defamation coming our way from AI.

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Yesterday, President Joe Biden declared that “it remains to be seen” whether Artificial Intelligence (AI) is “dangerous.” I would beg to differ. I have been writing about the threat of AI to free speech. Then recently I learned that ChatGPT falsely reported on a claim of sexual harassment that was never made against me on a trip that never occurred while I was on a faculty where I never taught. ChapGPT relied on a cited Post article that was never written and quotes a statement that was never made by the newspaper. When the Washington Post investigated the false story, it learned that another AI program “Microsoft’s Bing, which is powered by GPT-4, repeated the false claim about Turley.” It appears that I have now been adjudicated by an AI jury on something that never occurred.

When contacted by the Post, “Katy Asher, Senior Communications Director at Microsoft, said the company is taking steps to ensure search results are safe and accurate.” That is it and that is the problem. You can be defamed by AI and these companies merely shrug that they try to be accurate. In the meantime, their false accounts metastasize across the Internet. By the time you learn of a false story, the trail is often cold on its origins with an AI system. You are left with no clear avenue or author in seeking redress. You are left with the same question of Reagan’s Labor Secretary, Ray Donovan, who asked “Where do I go to get my reputation back?”

Here is my column in USA Today:

The rapid expansion of artificial intelligence has been much in the news recently, including the recent call by Elon Musk and more than 1,000 technology leaders and researchers for a pause on AI.

Some of us have warned about the danger of political bias in the use of AI systems, including programs like ChatGPT. That bias could even include false accusations, which happened to me recently.

I received a curious email from a fellow law professor about research that he ran on ChatGPT about sexual harassment by professors. The program promptly reported that I had been accused of sexual harassment in a 2018 Washington Post article after groping law students on a trip to Alaska.
AI response created false accusation and manufactured ‘facts’

It was not just a surprise to UCLA professor Eugene Volokh, who conducted the research. It was a surprise to me since I have never gone to Alaska with students, The Post never published such an article, and I have never been accused of sexual harassment or assault by anyone.

When first contacted, I found the accusation comical. After some reflection, however, it took on a more menacing meaning.

Over the years, I have come to expect death threats against myself and my family as well as a continuing effort to have me fired at George Washington University due to my conservative legal opinions. As part of that reality in our age of rage, there is a continual stream of false claims about my history or statements.

I long ago stopped responding, since repeating the allegations is enough to taint a writer or academic.

AI promises to expand such abuses exponentially. Most critics work off biased or partisan accounts rather than original sources. When they see any story that advances their narrative, they do not inquire further.

What is most striking is that this false accusation was not just generated by AI but ostensibly based on a Post article that never existed.

Volokh made this query of ChatGPT: “Whether sexual harassment by professors has been a problem at American law schools; please include at least five examples, together with quotes from relevant newspaper articles.”

The program responded with this as an example: 4. Georgetown University Law Center (2018) Prof. Jonathan Turley was accused of sexual harassment by a former student who claimed he made inappropriate comments during a class trip. Quote: “The complaint alleges that Turley made ‘sexually suggestive comments’ and ‘attempted to touch her in a sexual manner’ during a law school-sponsored trip to Alaska.” (Washington Post, March 21, 2018).”

There are a number of glaring indicators that the account is false. First, I have never taught at Georgetown University. Second, there is no such Washington Post article. Finally, and most important, I have never taken students on a trip of any kind in 35 years of teaching, never went to Alaska with any student, and I’ve never been accused of sexual harassment or assault.

In response to Volokh’s question, ChatGPT also appears to have manufactured baseless accusations against two other law professors.
Bias creates flaws in AI programs

So the question is why would an AI system make up a quote, cite a nonexistent article and reference a false claim? The answer could be because AI and AI algorithms are no less biased and flawed than the people who program them. Recent research has shown ChatGPT’s political bias, and while this incident might not be a reflection of such biases, it does show how AI systems can generate their own forms of disinformation with less direct accountability.

Despite such problems, some high-profile leaders have pushed for its expanded use. The most chilling involved Microsoft founder and billionaire Bill Gates, who called for the use of artificial intelligence to combat not just “digital misinformation” but “political polarization.”

In an interview on a German program, “Handelsblatt Disrupt,” Gates called for unleashing AI to stop “various conspiracy theories” and to prevent certain views from being “magnified by digital channels.” He added that AI can combat “political polarization” by checking “confirmation bias.”

Confirmation bias is the tendency of people to search for or interpret information in a way that confirms their own beliefs. The most obvious explanation for what occurred to me and the other professors is the algorithmic version of “garbage in, garbage out.” However, this garbage could be replicated endlessly by AI into a virtual flood on the internet.

Volokh, at UCLA, is exploring one aspect of this danger in how to address AI-driven defamation.

There is also a free speech concern over the use of AI systems. I recently testified about the “Twitter files” and growing evidence of the government’s comprehensive system of censorship to blacklist sites and citizens.

One of those government-funded efforts, called the Global Disinformation Index, blacklisted Volokh’s site, describing it as one of the 10 most dangerous disinformation sites. But that site, Reason, is a respected source of information for libertarian and conservative scholars to discuss legal cases and controversies.

Faced with objections to censorship efforts, some Democratic leaders have pushed for greater use of algorithmic systems to protect citizens from their own bad choices or to remove views deemed “disinformation.”

In 2021, Sen. Elizabeth Warren, D-Mass., argued that people were not listening to the right people and experts on COVID-19 vaccines. Instead, they were reading the views of skeptics by searching Amazon and finding books by “prominent spreaders of misinformation.” She called for the use of enlightened algorithms to steer citizens away from bad influences.

Some of these efforts even include accurate stories as disinformation, if they undermine government narratives.

The use of AI and algorithms can give censorship a false patina of science and objectivity. Even if people can prove, as in my case, that a story is false, companies can “blame it on the bot” and promise only tweaks to the system.

The technology creates a buffer between those who get to frame facts and those who get framed. The programs can even, as in my case, spread the very disinformation that they have been enlisted to combat.

Using deadly force against an empty-hand attack

 From the Armed Citizens Legal Defense Network.

For my Florida Friends that carry.

Avoiding conflict is far preferable to self-defense.

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Alex M. Ooley and E. Michael Ooley
Ooley Law, LLC
P.O. Box 70, Borden, IN 47106
812-810-1234
https://ooleylaw.com/

As with so many circumstances in the legal world, it depends. Prosecutors in Indiana are tasked with making the charging decision, and whether they decide to charge an armed citizen who uses a gun to stop an empty-hand attack is going to be highly fact sensitive. However, the fact that the attacker is empty-handed is not enough on its own to justify a charge. This determination will be made in the context of a self-defense claim, and we should address the parameters of a valid self-defense claim to begin.

In Indiana, a valid claim of self defense is a legal justification for an otherwise criminal act. A person is justified in using reasonable force against another person to protect the person or another innocent person from what the person reasonably believes to be the imminent use of unlawful force. A person is justified in using deadly force if the person reasonably believes that the force is necessary to prevent serious bodily injury to the person or another innocent person or the commission of a “forcible felony,” which is defined by Indiana statute.

To prevail on such a claim, the defendant must show that he (1) was in a place where he had a right to be; (2) did not provoke, instigate, or participate willingly in the violence; and (3) had a reasonable fear of death or great bodily harm. In making this determination, a jury looks from the defendant’s viewpoint when considering facts relevant to self defense. However, the defendant’s belief must have been reasonable. The phrase “reasonably believes,” as used in the self-defense statute, requires both the subjective belief that force was necessary to prevent serious bodily injury, and that such actual belief was one that a reasonable person would have under the circumstances.

For purposes of a claim of self defense, the question of the existence of apparent danger, apparent necessity, as well as the amount of force necessary to employ to resist the attack, can be determined only from the standpoint of the defendant at the time and under all the then-known existing circumstances. Focusing on the defendant’s standpoint means at least two things: (1) the trier of fact must consider circumstances as they appeared to the defendant rather than to the alleged victim or anyone else, and (2) the defendant’s own account of the event, although not required to be believed, is critically relevant testimony.

With this background in mind regarding self-defense claims generally, it helps us understand the legal context and the framework for judgment. So, how does this apply to an armed citizen who uses a gun to stop an empty-hand attack?

In Indiana, there is case law dating back to the late 1800s saying that an armed citizen is not automatically barred from using deadly force against an unarmed attacker. In the 1898 case of Davis v. State, the Indiana Supreme Court addressed an inappropriate jury instruction and said:

These instructions inform the jury that a person assaulted by another, who has no weapon in his hands, or the appearance thereof, is not justified in using a deadly weapon in defense of his person. If that is the law, then, in every conceivable case of a violent attack upon one by another, no matter what the circumstances may be, no matter what the disparity between the ages and physical strength of the two may be, the assaulted party must stand and take his chances of being knocked down and stamped into a jelly, or of being choked to death, before he can lawfully use a weapon in his defense.

Though the appearance and circumstances of the assault were such as to induce the reasonable belief to be honestly entertained by the defendant that his life was in danger, or that he was in danger of great bodily harm, from the assault, he could not lawfully use a deadly weapon to repel such assault, unless the assailant had a weapon in his hands, or the appearance thereof, no matter how many he had about his person. That is not the law.

Davis v. State, 152 Ind. 34, 51 N.E. 928, 929–30 (1898)

As you can see from the language in this opinion, whether one will be justified in using deadly force against an unarmed attacker will be highly fact sensitive. Is there a disparity in age, gender, size, ability, etc.? In other words, does the unarmed attacker have the ability to inflict death or great bodily harm on the innocent self-defender? All these considerations would be taken into account when considering the use of force, whether or not the attacker is armed. Otherwise, the person being assailed by an unarmed attacker, “must stand and take his chances of being knocked down and stamped into a jelly, or of being choked to death, before he can lawfully use a weapon in his defense.”

Victor Davis Hanson: Our French Revolution

 VDH is on target.

Things are not looking good. Too many dysfunctional voters who do not appreciate freedom and justice.

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We are in a Jacobin Revolution of the sort that in 1793-94 nearly destroyed France. And things are getting scary.

The Democratic Party vanished sometime in 2020.

It was absorbed by hard-left ideologues. They were bent on radically altering, or hijacking, existing institutions to force radical, equality-of-result agendas that otherwise do not earn majority support.

The American people want affordable power and fuel and energy autonomy. They do not want a Green New Deal that results in dependence on the Middle East.

They want fiscal sobriety, not a permanent stagflationary economy marked by bank failures, soaring interest rates, crony capitalism, and subsidies for those who choose not to work.

They know no country can exist without a border, much less while offering blank checks to foreign cartels that kill 100,000 Americans yearly.

They demand realist deterrence abroad, not the current woke military whose erosion is spelling the end to American credibility and global stability.

Racialists are eerily embracing discredited Neo-Confederate notions of racial chauvinism, discrimination, segregation, and the old one-drop rule of racial obsession. They are turning America toward a Balkanized war-of-all-against-all.

To implement such an unpopular program, the new Left must radically alter our institutions.

So the “Democrats” periodically threaten to pack the courts, end the filibuster, destroy the Electoral College, and override the states’ prerogatives to establish balloting laws.

They deny the committee assignments of the House minority leader. They engage in stunts like tearing up the State of the Union address on national television. With impunity they mob the homes of Supreme Court justices to leverage their decisions.

This revolution is run by elites and is a top-down operation.

University deans all but prompt students to disrupt invited campus speakers. District attorneys release violent arrested criminals without bail. Woke generals call their Chinese counterparts to warn them against their own commander-in-chief.

The Pentagon lectures the country on its supposed innate racism—even as the United States continues to lose wars abroad, abandons billions of dollars of equipment to terrorists, and allows communist China to surveil domestic American military bases with impunity.

Words change their meanings. “Racist” now means “don’t dare object.” “White” became the pejorative stereotype used by racists. “Diversity” means tired orthodoxy. “Equity” is a synonym for bias. “Inclusion” ensures exclusion.

Institutions are no longer recognizable. The FBI as we knew it no longer exists. Three former FBI directors either lied under oath to federal investigators or pleaded amnesia in congressional testimonies.

Our highest former national intelligence officers lied under oath to the Senate. The IRS is weaponized against political opponents of the Democrats. The Department of Justice is more likely to send the FBI after grammar school parents than mobs threatening the homes of Supreme Court justices.

Still, to thoroughly erase America, our Jacobins must radically alter our customs and traditions.

So under the cover of the COVID-19 quarantines, Election Day was made irrelevant. In the new America, 70 percent did not vote on the designated day but, fueled by third-party vote harvesting and relaxation of audits of non-Election-Day ballots, extended the vote over a period of several weeks.

Like the Jacobins, names and dates had to be radically transformed. 1619, not 1776, is now America’s birthdate and, we are told, it was an ignominious one.

Statues are toppled, careers Trotskyized.

Biological males suddenly have hijacked women’s sports—destroying five decades of women’s hard-won efforts to achieve equal treatment and respect in athletics.

What triggered the collective madness and this Jacobin takeover?

The Left’s perfect storm of the 120 days of riot, death, arson and looting of 2020? The COVID-19 pandemic? The disastrous two-year lockdown? The 2016 election of the outsider Donald Trump?

All those catalysts and more.

As the country collapses under leftist nihilism, the revolution’s last gasp is to destroy Trump—by empowering him. That is, the leftist legal vendetta is designed to win him just enough empathy to be nominated the Republican Party’s presidential candidate, but then to keep on indicting, gagging, and hemorrhaging him legally until Election Day 2024.

Trump was the first president to be impeached twice, to be tried by the Senate as a private citizen, and to have his private home raided by the FBI. Now he is the first president to have been indicted, effectively ending America’s moral authority abroad.

America now has three potential futures and two are bad.

First, the Jacobins have two more years to finish what they started as the founders’ dream descends into our worst nightmare.

Second, the revolution has so warped our legal system, our voting on Election Day, and the FBI, the CIA, the Justice Department, and the IRS, that even a despised, unpopular Left will “win” elections.

The third is that New York Prosecutor Alan Bragg has jumped the shark.

His pathetic prosecution is so patently incoherent, illiberal, and in spirit anti-American, that two-thirds of the country will soon conclude the center is not holding. The Jacobins’ reign of terror is unsustainable. And so in 2024 the Left will not be defeated, but so defeated that it is utterly discredited.

The choice is ours.

Victor Davis Hanson: Left wing violence Chic

 A Victor Davis Hanson column at PJ Media.

VDH is on target.

The fabric that holds society together has been torn - the outlook is not good.

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A transgender Tennessee mass shooter this week executed three adults and three nine-year-old children at a Nashville private Christian school.

Supposedly she left behind her a manifesto justifying her mass murdering. As of this writing, law enforcement officials have declined to make the document public.

Yet in about a nano-second after the news was disclosed, the left-wing activist machine kicked in, led by politicians, entertainers, and the media.

Three predictable themes surfaced.

The first was led by none other than President Joe Biden. He lectured that guns were the cause of the mass deaths, not the free will of a psychopathic killer.

Few noted that the shooter illegally purchased firearms by hiding her documented record of emotional disorders.

Second, America was told that it would serve no purpose to publish the shooter’s manifesto. Apparently, this exception to the usual practice was due to fears her manifesto would hurt the transgender cause.

Third, some in the activist media claimed that, while such murdering was regrettable, it was also understandable — given supposed Christian, conservative America’s intolerance of transgender people. In our sick society, the targeted victims became the political victimizers.

Did the transgender shooter anticipate that violence for her “correct” cause would be either contextualized or blamed on the weapon rather than she who used it?

Likewise, at about the same time, a transgender activist entered the Texas Legislature and physically fought with the sergeant-of-arms.

Just days after the Nashville shooting, a trans advocacy group decided neither to cancel, nor to change the name of, their long-planned “Trans Day of Vengeance” protest in front of the Supreme Court building in Washington, D.C.

It was recently disclosed that federal authorities did little or nothing last year when anti-abortion mobs traveled to the homes of conservative Supreme Court justices, yelling and disrupting their neighborhoods.

That mobbing was in clear violation of federal laws prohibiting protesters from swarming the homes of justices to influence their opinions. Yet, mysteriously, Attorney General Merrick Garland demurred from prosecuting the lawbreakers or beefing up security.

Amid this environment of general chaos, a would-be assassin of Justice Brett Kavanaugh turned up near the justice’s home, but was convinced by his own sister to surrender.

In March 2020, then-Senate Minority Leader Chuck Schumer, D-N.Y., had all but called for violence against the justices, when he threatened two by name before an angry pro-abortion crowd protesting at the doors to the court:

“I want to tell you Gorsuch; I want to tell you Kavanaugh – you have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”

What did Schumer mean by “whirlwind,” “pay the price” and “what hit you”?

On a recent episode of ABC’s “The View,” octogenarian actress Jane Fonda reentered controversy by boasting that women were not going to retreat on abortion rights. And if their marching and protesting were not enough, Fonda smirked, “Well, I’ve thought of murder.”

Recently Wayne State Professor Steven Shaviro posted his views on free speech on campus: “Although I do not advocate violating federal and state criminal codes, I think it is far more admirable to kill a racist, homophobic, or transphobic speaker than it is to shout them down.”

Shaviro apparently was referring to the mob at Stanford Law School that shouted down U.S. Fifth Circuit Judge Kyle Duncan, who had been invited to speak by the campus Federalist Society. Students prevented him from delivering his lecture, apparently for his past refusal to change the pronouns of a convicted pedophile.

Among the many obscene taunts that were leveled at the judge by Stanford’s future lawyers, one law-school protester shouted that he hoped Duncan’s daughters would be raped.

U.S. Senator Rand Paul, R-Ky., House Majority Leader Steven Scalise, R-La., and former Republican New York gubernatorial candidate Lee Zeldin have all been the target of vicious politically driven physical attacks.

Most Americans decried the illegal entry into the Capitol on January 6, 2021, by protesting Trump supporters. Over 1,000 have been charged, or are in prison, with hundreds more facing indictment.

Yet none in the Capitol were armed. And the only ones to die violently that day were among the protesters themselves.

No so in the summer 2020. Then the vast majority of the Black Lives Matter and Antifa-led violent protesters who rioted, burned, and looted for 120 days — injuring 1,500 police officers and causing over 35 deaths — were either not arrested or released.

For that matter, what do Johnny Depp, Snoop Dogg, Kathy Griffin, George Lopez, Moby, Rosie O’Donnell, Mickey Rourke, and Larry Wilmore all have in common? At one time or another they alluded to various ways of imagining former President Donald Trump’s violent death.

What do Joe Biden, Sen. Cory Booker, D-N.J., and Robert De Niro have in common? They all bragged of their desire to physically assault or beat up Trump.

For the radical Left, ideology exempts its political violence. The result for everyone else is an open-season and the end of deterrence — and frightening days ahead.

Bragg’s Trump case is really a test of the legal system

 Here is Jonathan Turley on Bragg's case against Trump.

I view Trump as a verbal disaster area. That does not make him legally guilty of a felony. Nor does it justify destroying the legal system to satisfy one's emotional dysfunction.

There really is a Trump Derangement Syndrome - and many in positions of power have it.  Their actions are far more dangerous to the Country than Trump's rhetoric.

Here is JT.

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Oscar Wilde once said “The only way to get rid of a temptation is to yield to it. Resist it, and your soul grows sick with longing for the things it has forbidden to itself.”

With the release of the indictment of former President Donald Trump, Manhattan District Alvin Bragg has revealed himself as a follower of the Wilde school of legal thought. Bragg knew that he had no criminal case against Trump. However, after running on bagging Trump for some crime (any crime), Bragg knew that many would not care if he had a basis for a criminal charge. He would be lionized to be the first person to ever indict a former president in the blind rage against Trump.

After charging Trump with 34 counts, Bragg insisted that he will convict Trump of the “crime to promote a [political] candidacy through unlawful means.” He insists that he will prove “attempts to violate state and federal election laws.”

For months, many have raised objections to the effort of Manhattan District Attorney to use a flawed legal theory to essentially litigate a federal election violation that the Justice Department opted not to charge. This bootstrap theory has been widely criticized, but many in the media sought to cut off that debate by suggesting that Bragg might be basing his prosecution on some unknown crime. Last week, Michael Cohen’s attorney Lanny Davis went as far to “warn all the pundits and everyone speculating…that there are lots of facts, lots of documents, lots of evidence of multiple crimes.”

We now have the indictment, and it is basically what many of us anticipated. It is a series of stacked counts of falsifying business records for the purpose of influencing the election. The indictment seems to address the lack of legal precedent with a lack of specificity on the underlying “secondary” felony. Bragg has done nothing more than replicated the same flawed theory dozens of times. This is where math and the law meet. If you multiply any number by zero, it is still zero.

If the New York bench retains any integrity, this case will be thrown out as legally improper with an admonition to Bragg and his office for politicizing the criminal justice process. That, however, may be asking a lot of state judges who are elected on both the trial and appellate levels. They also may prove to be lawyers on the Wilde side.

The cost, however, to the legal system will be immense. In a single indictment, Alvin Bragg bulldozed any high ground that the Democrats had after January 6th. He has fulfilled the narrative of the Trump campaign by supplying a raw and undeniable example of the politicization of the legal system. What is most shocking is that this attack on the rule of law was met with the rapturous applause of many, including lawyers and legal pundits. They not only will ignore the affront to the integrity of our legal system, but celebrate its demise.

Bragg himself threw a flag on the effort to indict Trump being pushed by a lawyer brought in as a special assistant district attorney for that purpose. Mark F. Pomerantz and his colleague Carey R. Dunne resigned — and their resignation letter was then leaked to an eager media. Pomerantz then took a step that floored many of us: he wrote a tell-all book based on the still ongoing investigation.However, Pomerantz admits that career prosecutors balked at his radical proposals to find a crime — any crime — to nail Trump. That included an entirely bonkers money laundering charge against Trump where he would be the victim of an extortion effort. In his book, Pomerantz admits that “many of the lawyers were relentlessly negative.” Some prosecutors were clearly so upset by his efforts that they “defected” from the team. He also admitted that Bragg told him “that the consensus among the group of prosecutors with whom he had been speaking was not to go forward.”

Despite objections from his colleagues who said he was undermining their efforts, Pomerantz published a book making the case against an individual who was not charged, let alone convicted. It was a grossly unprofessional and improper act. It also worked. Bragg caved to the overwhelming pressure that followed. If figures like Pomerantz was going to yield to temptation, why shouldn’t he? After all, no one wants to be the last ethical lawyer when everyone else is cashing in.

I remain hopeful that there remains a modicum of judicial integrity in New York to stand against this effort. However, this is a defining moment for many who have rationalized this abuse of the criminal justice system. For those attorneys, they have reached the point described by Robert Oppenheimer after the development of the atomic bomb. He stated “In some sort of crude sense which no vulgarity, no humour, no overstatement can quite extinguish, the physicists have known sin; and this is a knowledge which they cannot lose.”

The same is true for many in our profession. While some of us have warned that Mar-a-Lago could present a serious threat to Trump, we have warned that the Bragg prosecution is the denial of the core legal principle of blind justice. This expensive, drawn out effort would not have occurred for anyone other than Donald Trump. It is not just selective prosecution, it is exclusive prosecution for Trump and Trump alone.

There is a good-faith debate over whether the President should be charged over conduct related to Mar-a-Lago and possible obstruction of justice. This is not that case. For those lawyers applauding this ignoble moment, this is our sin as a profession, and it is “knowledge which they cannot lose” in the years to come.

Older Couple Shoots Younger Attacker in Their California Home

 Rob Morse at ammoland.com.

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Don’t believe what you might see in the news reports. There are gun owners in California. In fact, there are more gun owners in California than in any other state. That matters even though this retired couple had every reason to expect to be safe. We’re supposed to be safer in our homes at night. Living in smaller towns rather than big cities, we’re supposed to be safe. Hemet, California has a population of 90 thousand, which is about 4 percent of the population in Riverside County, where you’d find Hemet. Yes, this couple should have been safe. Still, this couple in their 70s each had a gun nearby as they slept in their bed late at night. Thank goodness they did because they faced a violent and much younger attacker in their home. If you have to fight, then the best trick to beat a younger and stronger attacker is to be armed and have an armed partner.

The story unfolds on a weekday night around midnight. The couple was at home when they heard someone smash through their back door. The male homeowner went to see what happened and he heard an intruder in his bathroom. Fortunately, the male homeowner was armed before he left their bedroom. The male homeowner opened the bathroom door and was immediately attacked by the intruder. His wife describes them hitting each other as they slammed from wall to wall inside their bathroom. The male homeowner was able to raise his .22 caliber handgun and shoot his 27-year-old attacker three or four times in the chest. The intruder decided he didn’t want to get shot any more so he ran out of the bathroom. He ran right into the female homeowner and punched her in the face.

Fortunately, the female homeowner had grabbed her firearm from the living room as the two men were fighting in the bathroom. She shot the attacker in the shoulder with her .357 handgun. Again, the attacker decided that getting shot hurt, and he didn’t want to get shot anymore. The intruder turned and ran out the back door the way he entered.

The couple collected themselves and then called 911 for help. They received treatment for their injuries. One report indicated that the male homeowner went to the hospital to be examined. The next day he had bruises all over his body. The female homeowner had a bruise and swelling on her face.

About an hour-and-a-half after the homeowners called the police, a young man walked into a hospital in his hometown nearby. He was suffering from multiple gunshot wounds. The wounds and the description of the suspect matched the description of the couple’s attacker. He was treated and then booked into the Riverside County jail. He is charged with home invasion, robbery, burglary, elder abuse, and assault. He has a long history of criminal arrests and convictions but was out on parole after a recent burglary conviction.

The male homeowner spoke with news reporters, “The only message I want to get out is to see everyone arm up man, I really would. We would not be here speaking to you now if we had not had the protection.”

That is a good message, but there is more we can learn from their experience. We win every fight we avoid and I’m glad the older couple were not hospitalized. Depending on luck is a bad plan. Best practice would be to keep your firearms secured near your bed at night.

We know that a .22 caliber firearm can be used for defense but shot placement is critical. It is hard to aim during hand-to-hand combat.

The female homeowner was punched and knocked down before she pressed the trigger. Firearms are wonderful defensive tools because they work at a distance. Ideally, the defender can shoot the attacker but remain out of reach. That is hard to do at midnight. Please work on a defensive plan with your partner and practice it. Practice it enough times that your feet and hands know what to do while your brain is still fuzzy at midnight.

This story is one of many that go under-reported by the mainstream media because it shows a positive image of a law-abiding gun owner defending their life and their family. It is our responsibility at AmmoLand to report these stories to you. While we will continue to report these stories, groups like the Crime Prevention Research Center, led by Dr. John Lott, are fastidious in studying the use of firearms for self-defense. Stay up to date with all news on self-defense by following CPRC and Ammoland.

Tyler Cowen interviews Jonathan Swift, who died in 1745

 It's actually an interview with ChatGPT impersonating Jonathan Swift.

Here is the link.

Politics transcended ethics and morals in the 1030s, too

 Here is Theo Zenou in the Jewish World Review.

Government was the problem in the 1930s, too.

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And the Oscar goes to. . . "All Quiet on the Western Front."

It was 1930 when the harrowing World War I drama - based on the novel by German author Erich Maria Remarque - won the Academy Award for best picture (known then as outstanding production). Almost a century later, a new adaptation of "All Quiet on the Western Front" is in contention for nine Oscars at Sunday's Academy Awards.

The man who received the Oscar in 1930 was one of Hollywood's founding fathers, Carl Laemmle, the owner of Universal Studios, which had produced the film. It was far from his greatest achievement of the decade to come.

During the 1930s, Laemmle used his fortune to get hundreds of Jewish families out of Nazi Germany, saving many of them from the gas chambers of the Holocaust. The son of one of the people he rescued called him "the closest thing to Oskar Schindler that Hollywood has to offer."

Laemmle's life story, which was chronicled in a 2019 documentary by James L. Freedman, possesses all the ingredients of a Hollywood biopic. He was born in 1867 to a poor German Jewish family. At age 17, he sailed to the United States in search of the American Dream. But he didn't find it right away. He toiled for years as an office boy, bookkeeper, newspaper hawker, salesman and store manager.

Finally, in 1906, he zeroed in on a million-dollar idea. Motion pictures had been invented just years earlier, and Laemmle was convinced they would be the next big thing. He opened two movie theaters in Chicago. People lined up to buy tickets.

Laemmle soon branched out and started producing his own movies, eventually becoming one of America's foremost producers. In 1912, he co-founded Universal Studios in New York. Two years later, as World War I tore Europe apart, Laemmle moved the studio to California. Other producers followed, and Hollywood was born.

In the ensuing years, Laemmle turned Universal into a powerhouse. His crowning career achievement came in 1930 with "All Quiet on the Western Front." It was a passion project for him, a humanist drama revisiting the Great War through the eyes of German soldiers, America's former enemies. Although Laemmle was now a proud U.S. citizen, he still harbored a deep connection to Germany and hoped the film could foster reconciliation between his native and adopted countries.

"All Quiet on the Western Front" was a hit in the United States and abroad. But it found itself in the crosshairs of the Nazis, then the main opposition party in Germany, who blasted it as anti-German propaganda. Since Laemmle was Jewish, the Nazis also branded it a "Jewish lie."

As Tom Fordy recounted in the Telegraph, on Dec. 5, 1930, Nazi propagandist Joseph Goebbels and his "brownshirts" crashed the Berlin premiere of "All Quiet on the Western Front." They released mice in the theater, threw stink bombs at guests and screamed, "Jews out! Germany awake! Hitler is at the gates!" The German government got spooked and banned the film.

The experience made Laemmle starkly aware of the threat posed by the Nazis. Sensing danger for German Jews, he swiftly got his relatives out of the country. In 1932, a year before Hitler became chancellor, he observed, "I am almost certain that Hitler's rise to power, because of his obvious militant attitude toward the Jews, would be the signal for a general physical onslaught on many thousands of defenseless Jewish men, women and children in Germany, and possibly in Central Europe as well."

Laemmle was right, foreseeing the "Final Solution" a decade before it transpired.

When Hitler assumed power in 1933, he lived up to Laemmle's worst fears and enacted antisemitic legislation preventing Jews from working in a wide array of professions. Laemmle knew the onslaught was just beginning. Driven by the conviction that Jews needed to flee Germany or eventually perish there, he pledged to bring as many as he could to the United States, regardless of whether he knew them personally.

But it wasn't just a matter of booking them a one-way ticket. Getting German Jews into the country proved a bureaucratic nightmare. The State Department, which was in charge of processing visas, made it nearly impossible. As historian Saul S. Friedman put it, America in the '30s was "no haven for the oppressed."

Following the 1924 National Origins Act, the State Department enforced a restrictive immigration system and assigned each country in the world a quota - the maximum number of immigrants who would be let into the United States each year. For Germany, that number was capped at around 25,000.

But that didn't mean 25,000 Germans reached American shores each year. The actual figure was much lower because the State Department, amid broad anti-immigrant sentiment, was actively trying to curb immigration. In 1933, immigration officers were instructed to grant only 10 percent of the visas allowed under each quota. According to Erik Larson in "In the Garden of Beasts," some high-ranking State Department officials were antisemites who had no intention of letting Jews into the United States.

President Franklin D. Roosevelt chose not to intervene, telling his ambassador to Germany in 1933, "the German authorities are treating the Jews shamefully and the Jews in this country are greatly excited. But this is also not a governmental affair." Rabbi Stephen Wise, a community leader who lobbied the State Department to grant visas to German Jews, was scathing in his appraisal of FDR as "immovable, incurable and even inaccessible excepting to those of his Jewish friends whom he can safely trust not to trouble him with any Jewish problems."

Laemmle was well aware of the hurdles he faced in trying to bring German Jews into the United States, but he stuck to his motto: "It can be done!"

To immigrate to the United States, families needed a U.S. citizen to sponsor their application and sign an affidavit pledging to support them financially until they got a job.

Laemmle started signing affidavits. Despite being one of Hollywood's biggest names, he was required to put up bonds to prove to U.S. authorities he was solvent. In Freedman's documentary, a refugee who came to the United States as a child said the mogul had to put $1 million in escrow - more than $20 million in today's dollars.

But Laemmle was determined to save as many lives as possible. According to historian Udo Bayer, he signed at least 300 affidavits over the course of the '30s, bringing that many Jewish families to the United States. Some were distant relatives; some were friends of those relatives; some were complete strangers who had heard what Laemmle was doing and pleaded for help.

Laemmle covered their travel costs, paid for their accommodation and helped them find jobs, including at Universal. As he told one Jewish woman whose visa he had sponsored, "You can absolutely depend on me to stand by you until you get on your feet."

Laemmle was following his conscience. "It is the solemn duty of every Jew in America who can afford it," he wrote in 1938, "to go to the very limit for these poor unfortunates in Germany. . . . I have never in all my life been so sympathetic to any cause as I am to these poor innocent people who are suffering untold agony without having done anything wrong whatsoever."

The State Department didn't see it that way. By the late '30s, it started rejecting Laemmle's affidavits because, it claimed, he was sponsoring too many.

Laemmle looked for other wealthy Americans to sign affidavits, urging them to lend a helping hand. He signed off one of his letters: "Have a heart, please." His campaign led to an additional 100 affidavits.

In May 1939, months before the start of World War II, more than 900 German Jews sailed to Cuba on the SS St. Louis. They were hoping to find a safe haven on the Caribbean island but were denied entry. They continued to the United States, where they beseeched FDR to give them refuge.

As ever, Laemmle tried to help: He personally cabled the president. But he got no response. A poll at the time showed that 83 percent of the electorate opposed allowing more refugees. Roosevelt, up for reelection in 1940, chose politics over ethics.

The SS St. Louis was sent away and sailed back to Europe. More than 250 of its passengers later died in the Holocaust, along with 6 million other Jews.

Laemmle would not live to witness the horror of what he had long known was coming. He died on Sept. 24, 1939, at age 72, just as the war was beginning.

The affidavits Laemmle signed for hundreds of families probably helped more than a thousand individuals escape the Holocaust. Among the immigrants he sponsored was a 10-year-old child named Fred Bender. Interviewed many decades later in Freedman's documentary, Bender said, "Laemmle was a superhero as far as this 10-year-old kid was concerned."