James.galbraith

"In recent months, at least half a dozen game studios have revealed plans to add NFTs to their games or said they were considering doing so," reports the New York Times. Then they were confronted by gamers like 18-year-old Christian Lantz, who for years has played GSC Game World's first-person shooter game S.T.A.L.K.E.R. Mr. Lantz was incensed. He joined thousands of fans on Twitter and Reddit who raged against NFTs in S.T.A.L.K.E.R.'s sequel. The game maker, they said, was simply looking to squeeze more money out of its players. The backlash was so intense that GSC quickly reversed itself and abandoned its NFT plan. "The studio was abusing its popularity," Mr. Lantz, who lives in Ontario, said. "It's so obviously being done for profit instead of just creating a beautiful game...." [C]lashes over crypto have increasingly erupted between users and major game studios like Ubisoft, Square Enix and Zynga. In many of the encounters, the gamers have prevailed — at least for now.... Players said they see the moves as a blatant cash grab. "I just hate that they keep finding ways to nickel-and-dime us in whatever way they can," said Matt Kee, 22, a gamer who took to Twitter in anger this month after Square Enix, which produces one of his favorite games, Kingdom Hearts, said it was pushing into NFTs. "I don't see anywhere mentioning how that benefits the gamer, how that improves gameplay. It's always about, 'How can I make money off this?'" Much of their resentment is rooted in the encroachment of micro transactions in video games. Over the years, game makers have found more ways to profit from users by making them pay to upgrade characters or enhance their level of play inside the games. Even if people had already paid $60 or more for a game upfront, they were asked to fork over more money for digital items like clothing or weapons for characters.... Merritt K, a game streamer and editor at Fanbyte, a games industry site, said gamers' antagonism toward the companies has built up over the last decade partly because of the growing number of micro transactions. So when game makers introduced NFTs as an additional element to buy and sell, she said, players were "primed to call this stuff out. We've been here before." That has led to bursts of gamer outrage, which have rattled the game companies. In December, Sega Sammy, the maker of the Sonic the Hedgehog game, expressed reservations about its NFT and crypto plans after "negative reactions" from users. Ubisoft, which makes titles like Assassin's Creed, said that it had misjudged how unhappy its customers would be after announcing an NFT program last month. A YouTube video about the move was disliked by more than 90 percent of viewers. "Maybe we under-evaluated how strong the backlash could have been," said Nicolas Pouard, a Ubisoft vice president who heads the French company's new blockchain initiative. Game companies said their NFT plans were not motivated by profit. Instead, they said, NFTs give fans something fun to collect and a new way for them to make money by selling the assets. "It really is all about community," said Matt Wolf, an executive at the mobile game maker Zynga, who is leading a foray into blockchain games. "We believe in giving people the opportunity to play to earn." The article also rounds up examples of game companies it says have "come out against crypto." "Phil Spencer, the head of Microsoft's Xbox, told Axios in November that some games centered on earning money through NFTs appeared 'exploitative' and he would avoid putting them in the Xbox store." "Valve, which owns the online game store Steam, also updated its rules last fall to prohibit blockchain games that allow cryptocurrencies or NFTs to be exchanged...." "Tim Sweeney, the chief executive of Epic Games, the maker of the game Fortnite, said his company would steer clear of NFTs in its own games because the industry is riddled with 'an intractable mix of scams.' (Epic will still allow developers to sell blockchain games in its online store.)" The blowback has affected more than just game studios. Discord, the messaging platform popular with gamers, backtracked in November after users threatened to cancel their paid subscriptions over a crypto initiative."

Read more of this story at Slashdot.

When former President Donald Trump’s third Supreme Court nominee was confirmed in 2020, cementing the most conservative majority on the court since the 1930s, it wasn’t clear which conservative goals the justices would tackle first. Culture-war issues like abortion, gun rights, affirmative action and religious liberty were obvious possibilities, but issues with a more subtle impact like reining in the power of the executive branch and limiting unions had long been on conservative legal advocates’ wish list, too. So the question wasn’t whether the court would move to the right — it was more a question of where they’d start.

The term isn’t over yet, but it’s already looking like this year could be a bonanza for conservatives — and not just because of the high-profile cases that have snapped up most of the attention. I’ve written about how the justices could limit or overturn Roe v. Wade, the 1973 case that established a constitutional right to abortion, and expand gun rights for the first time in over a decade. But there are several other, less flashy cases that could also have sweeping effects on Americans’ lives. 

It seems very likely, for instance, that the justices will continue to erode the barrier between church and state by requiring states to fund religious schools in programs where they already support non-religious private schools. The conservative justices could also impede government agencies’ ability to act independently of Congress by giving more power over their decisions to the conservative-leaning federal judiciary.

“This term is a gift basket to the conservatives who wanted to elect Trump so he could appoint Supreme Court justices,” said Leah Litman, a law professor at the University of Michigan. “It’s becoming clear that the conservative justices are interested in moving the law on a bunch of major issues that have huge practical consequences for how our government works and for people’s lives.”

Church-state separation will likely continue to be eroded

In some rural parts of Maine, children’s tuition at non-religious schools is covered by state funds. This provision doesn’t apply to religious schools, but that might be about to change. Two families who send or want to send their children to religious private schools sued the state, saying that they should be able to get reimbursed for tuition at those schools, too. They argued that if Maine paid for kids to attend some private schools, excluding religious schools was unconstitutional.

At the oral argument on the case in December, the conservative justices seemed inclined to agree with the families. Lawyers for Maine and the Biden administration contended that the program was intended to provide a handful of children in isolated parts of the state with something resembling a public school education, crucially without fostering a religious worldview. But several of the justices appeared unconvinced. “All [the families] are asking for is equal treatment, not special treatment,” said Justice Brett Kavanaugh. “They’re saying, ‘Don’t treat me worse because I want to send my children to a religious school rather than a secular school. Treat me the same as the secular parent next door.’”

Lee Epstein, a political scientist at Washington University in St. Louis who studies the Supreme Court, told me that she thinks that the Maine families will easily prevail. Along with Eric Posner, a law professor at the University of Chicago, she analyzed the Roberts court’s track record on religious liberty and church-state separation cases and found that the justices sided with religious organizations in over 80 percent of cases, a stunning rise from about 50 percent in previous courts since 1953. “This court is ruling with religious plaintiffs at an incredibly high rate,” she said. “I see this case as just continuing with that trend.”

A victory for the families in Maine would also continue a long winning streak for religious plaintiffs in the more specific realm of school funding. Several cases in recent years have centered on funding for religious schools, and the court has chipped away at states’ ability to prevent religious schools from receiving taxpayer money. In 2017, for instance, a 7-2 majority — including two of the liberal justices, Elena Kagan and Stephen Breyer — ruled that Missouri couldn’t exclude a religious school from a public grant for playground resurfacing. And three years later, in 2020, a 5-4 decision effectively gutted state constitutional provisions that bar public funds from going to religious schools, by ruling that Montana could not exclude religious schools from its private school scholarship program. Now, the Maine families and their supporters are pointing to those two cases as precedents.

The court’s path on these cases has, up until now, embodied the incrementalism that Chief Justice John Roberts appears to prefer. The first decision was incredibly narrow — the justices were clear that it applied only to state grants involving playground resurfacing — but it left the door open for more far-reaching cases. Each subsequent case has built on the last, with increasingly broad implications. The Montana case opened the door for legislators in more states to create programs that benefit religious schools. Now, depending on how the justices rule, the Maine case could open a new pathway for religious schools to receive public funding.

That, in turn, could lead to even more extreme cases — and a possible abandonment of the gradualism that Roberts prizes, depending on how the other conservatives are feeling. “Every time they reach one of these decisions, they are shifting the Overton window and inviting conservative advocates to ask them to go further,” Litman said. And there are plenty of signals that there’s an appetite for a sharper turn to the right. Just last year, the Republican-appointed justices indicated that they were willing to reconsider a longstanding precedent that limits constitutional protections for religious conscience. 

Depending on how this term’s case turns out, and where the justices turn next, this line of cases on schools could affect even more hotly contested religious liberty disputes, like whether publicly funded charities or business owners who serve the general public can discriminate on the basis of their religious beliefs. “We might end up with a situation where states are required to fund programs that discriminate on the basis of race or sexual orientation,” Litman said.  

The court could start curtailing the power of the executive branch

Some cases that make their way to the Supreme Court are easily comprehensible to non-lawyers — but most are not. That doesn’t mean, though, that they don’t have an important impact on Americans’ lives, and that’s particularly true of cases involving the power of the executive branch. This term, two of those seemingly sleepy disputes could significantly weaken the power of the federal agencies and give a huge amount of veto power to federal judges, many of whom are highly conservative. 

Admittedly, the specifics of the cases don’t make for riveting reading material. In one, which the Supreme Court heard in November, hospitals are challenging the federal government’s system for calculating Medicare reimbursements. In the other — technically four cases bundled together and scheduled for argument in late February — GOP-controlled states, energy companies and coal mine operators are arguing that an Obama-era plan to fight climate change isn’t authorized under the Clean Air Act.

But underneath those dry-sounding disputes is a long-running battle over what the executive branch is actually allowed to do. In the case involving the hospitals, the justices could, for instance, reconsider a judicial doctrine first established in a 1984 case involving the energy company Chevron, which gives federal agencies a lot of wiggle room to interpret the laws they’re charged with carrying out. The idea behind the Chevron doctrine is that Congress can’t anticipate all of the minute problems and wrinkles that crop up as laws are enacted, and agencies’ experts are capable of making reasonable decisions in situations where the law is ambiguous — and perhaps, most importantly, are in a better position to make those calls than judges. The climate change case, meanwhile, involves a dormant legal doctrine called “nondelegation,” which limits how much power Congress can delegate to federal agencies. In recent years, conservative justices — especially Justice Neil Gorsuch — have been clear about their desire to curtail or overturn the Chevron doctrine, and bring back the nondelegation doctrine.

It’s hard to overstate the stakes of these two cases at a moment when much of the country’s actual governing — for better or worse — happens in the executive branch. Environmental issues, workplace safety, health care, employment discrimination and more are all handled by various administrative agencies. Moreover, with Congress in a perpetual state of logjam, it’s hard to imagine lawmakers responding to these potential rulings by writing laws with more specific instructions to those agencies — if that’s even possible. “There are a lot of things that Congress can’t anticipate or might not be worth their time,” Litman said. “Do you really want Congress trying to figure out something like the proper level of a particular chemical that can be in buildings?”

So the practical impact of overruling the Chevron doctrine or reimposing the nondelegation doctrine would be to give judges more influence over federal regulations. “If you look at it skeptically, this would amount to judges giving themselves more power,” Epstein said. Given the conservative lean of the federal judiciary, that would likely lead to a lot of regulations being struck down — which would be a blow to the power of the presidency in general but would probably have the biggest impact on Democratic presidents. 

None of these cases have gotten a lot of attention so far, which could make it easier for the court to do something fairly dramatic without getting a lot of blowback. And given how technical the cases involving federal agencies are in particular, the court might not have to worry about going against public opinion anyway. But for conservative advocates watching the courts, these cases have a lot of significance, which means this term could mark an even sharper turn to the right than the non-lawyers among us may be expecting.

The Court is barely even pretending to be engaged in legal reasoning.

On Thursday, the Supreme Court handed down a pair of unsigned opinions that appear to be at war with each other.

The first, National Federation of Independent Business v. Department of Labor, blocks a Biden administration rule requiring most workers to either get vaccinated against Covid-19 or to routinely be tested for the disease. The second, Biden v. Missouri, backs a more modest policy requiring most health care workers to get the vaccine.

There are some things that differentiate the two cases. Beyond the fact that the first rule is broader than the second, the broader rule also relies on a rarely used provision of federal law that is restricted to emergencies, while the latter rule relies on a more general statute.

But the Court gives little attention to substantive differences between the laws authorizing both rules. Instead, it applies an entirely judicially created doctrine and other standards in inconsistent ways. The result is two opinions that are difficult to reconcile with each other.

The NFIB case relies heavily on something known as the “major questions doctrine,” a judicially invented doctrine which the Court says places strict limits on a federal agency’s power to “exercise powers of vast economic and political significance.” As the NFIB opinion notes, the vaccinate-or-test rule at issue in NFIB applies to “84 million Americans” — quite understandably a matter of vast economic significance.

But, if this manufactured doctrine is legitimate, then it’s not at all clear why it doesn’t apply with equal force in both cases. As Justice Clarence Thomas points out in a dissenting opinion in the Missouri case, the more modest health workers’ rule “has effectively mandated vaccination for 10 million healthcare workers.” That’s still an awful lot of Americans!

What if the Biden administration had pushed out a rule requiring 20 million people to get vaccinated? Or 50 million? The Court does not tell us just how many millions of Americans must be impacted by a rule for it to count as a matter of “vast economic and political significance.” And it’s hard to draw a legally principled distinction between 10 million workers and 84 million.

Similarly, in NFIB, the Court notes that the agency which created the broad rule at issue in that case is the Occupational Safety and Health Administration (OSHA) which, as its name suggests, deals with health threats that arise in the workplace, and Covid-19 is not unique to the workplace. “COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather,” the majority opinion notes.

But, as the three liberal justices point out in dissent, OSHA regulates threats that exist both inside and outside the workplace all the time, including “risks of fire, faulty electrical installations, and inadequate emergency exits.” It’s not at all clear why Covid-19 is any different. And the only explanation that the majority opinion gives — that a vaccination “cannot be undone at the end of the workday,” unlike the donning of fire-safety gear — applies with equal force to both the OSHA rule and the narrow health worker’s rule that the Court refused to block. Doctors’ vaccinations can’t be undone any more than an office worker’s can be.

The Court, in other words, appears unable to articulate a principled reason why some vaccination rules should stand and others should fall.

In the past, when the Court was unable to come up with principled ways to separate good rules from bad ones, it deferred to the federal agencies that promulgated those rules. The Court reasoned that it is better to have policy decisions made by expert agencies that are accountable to an elected president than to have purely discretionary decisions made by unelected judges with no relevant expertise.

But the one thing that is apparent from NFIB and Missouri is that this age of deference is over. The opinions suggest that the Court will uphold rules that five of its members think are good ideas, and strike down rules that five of its members think are bad ideas.

The Court is fabricating legal doctrines that appear in neither statute nor Constitution

To understand the two vaccination cases, it’s helpful to start with the specific statutory language the Biden administration relied upon when it issued both rules.

In the NFIB case, a federal law that generally requires OSHA to go through an arduous process to approve new workplace regulations also gives the agency the power to devise an “emergency temporary standard.” It can do so to protect workers from “grave danger from exposure to substances or agents determined to be toxic or physically harmful” if such a standard is “necessary to protect employees from such danger.”

Meanwhile, in the Missouri case, a different federal law instructs the Centers for Medicare and Medicaid Services (CMS) to issue rules that it “finds necessary in the interest of the health and safety of individuals who are furnished services” in institutions that accept Medicare or Medicaid funding (a category that includes most health providers and pretty much all hospitals and other major providers).

There are striking similarities between these two statutes. Both use open-ended language, delegating powers that could be wielded in a wide variety of circumstances to protect against a wide variety of health threats. And both also state that the relevant federal agencies should only issue rules that are “necessary” to protect against such threats.

And yet the Court analyzes these two very similar statutes in strikingly different ways.

As mentioned above, NFIB relies heavily on the so-called major questions doctrine, a judicially created doctrine that is not mentioned in the Constitution or in any other federal law, and that sometimes limits federal agencies’ power to issue especially consequential regulations. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance,” the Court declares in NFIB, quoting from a decision last August that struck down a moratorium on evictions.

Historically, this doctrine has been used primarily to help the Court interpret vague or ambiguous statutes delegating regulatory power to a federal agency. When it is unclear whether a particularly ambitious regulation falls within an agency’s statutory authority, the Court would sometimes err on the side of saying that the regulation is not permitted.

But the issue in NFIB isn’t really that the statute is vague. As the three liberal justices note in a co-authored dissent, the six conservative justices in the majority do “not contest that COVID–19 is a ‘new hazard’ and ‘physically harmful agent’; that it poses a ‘grave danger’ to employees; or that a testing and masking or vaccination policy is ‘necessary’ to prevent those harms.”

Rather, the majority appears to believe that, because OSHA is not engaged in an “everyday exercise of federal power,” the Court must look for reasons to strike its actions down. As mentioned above, the NFIB majority justifies doing so by claiming that OSHA’s authority is limited to the workplace, and the threat of Covid-19 “is untethered, in any causal sense, from the workplace.”

Thus, unlike previous decisions that applied the major questions doctrine only when a statute is vague (that is, if it is unclear whether Congress intended to allow an agency to regulate), NFIB suggests that this doctrine applies to any open-ended statute that gives an agency broad powers. And it applies even if it’s apparent from that statute’s language that Congress intended to give the agency broad, open-ended authority.

That’s a sweeping change. But say we take it at face value, and then look at the decision in Missouri. Under NFIB, the major questions doctrine only applies to matters of “vast economic and political significance.” But the Missouri opinion provides no explanation of why a rule that impacts 10 million workers does not qualify as a question of such significance.

And if the major questions doctrine does apply, then the CMS rule appears to be just as vulnerable to this doctrine as the OSHA rule. If anything, the text of the CMS statute is even more open-ended than the language at issue in NFIB. OSHA’s statute for emergency regulations only permits it to address a “grave danger” and only when that danger arises from a “physically harmful” substance or agent that intrudes upon the workplace. CMS’s statute, by contrast, gives it far more sweeping authority to act in the “interest of the health and safety of individuals” who receive health care in facilities that take Medicare or Medicaid funding.

And yet the major questions doctrine goes unmentioned in the Missouri opinion.

Similarly, in NFIB, the Court swipes at OSHA’s broad rule because, it claims, “OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind.” But in Missouri, the majority opinion concedes that CMS’s “vaccine mandate goes further than what the Secretary has done in the past to implement infection control,” and it also notes that state governments, not CMS, have historically imposed vaccination requirements on health care workers.

The two opinions cannot even agree on the significance of when the two rules were issued. In NFIB, the fact that there was “a 2-month delay” between when President Joe Biden announced that OSHA would issue a rule and when OSHA actually issued the rule is mentioned as a subtle dig against the administration. But in Missouri, the majority has no problem with a two-month delay.

The Missouri opinion, in other words, appears to have been drafted by someone who was blissfully unaware of what the Court had to say in NFIB. The two opinions simply cannot be reconciled. They apply completely different legal rules and make no effort to explain why the analysis in one opinion does not apply in the other.

At best, the Court is unable to keep track of what it is doing. At worst, it appears to have started with the result it wanted in both cases, and then worked backward to come up with some kind of reasoning to justify those outcomes.

The Supreme Court wants to be President Biden’s boss

In fairness, there is some language in the NFIB opinion that the Biden administration might find comforting. Although the Court rejects OSHA’s broad rule, it does indicate that OSHA could issue a narrower rule in some cases. “Where the virus poses a special danger because of the particular features of an employee’s job or workplace,” the Court writes, “targeted regulations are plainly permissible.”

Similarly, NFIB rejects the slash-and-burn approach to curtailing OSHA’s authority that is favored by the very most conservative members of the federal bench. The majority opinion concedes that “Congress has indisputably given OSHA the power to regulate occupational dangers.”

So, small victories: The opinions in NFIB and Missouri suggest that the Court will still permit the Biden administration to govern some of the time. But they also suggest that the Court will exercise a broad veto power over this administration’s regulatory actions.

As Judge Jane Stranch wrote in a lower court opinion backing the OSHA mandate, the major questions doctrine that the Court relies upon to strike that mandate “is hardly a model of clarity, and its precise contours — specifically, what constitutes a question concerning deep economic and political significance — remain undefined.” The same can be said about other legal doctrines (such as one known as “nondelegation”) that the Court has also floated as justification to strike down federal regulations in recent cases.

The elevation of these doctrines is dangerous. When courts hand down such vague and open-ended rules, they effectively transfer power to themselves. As the NFIB and Missouri cases show, doctrines like major questions are hard to apply in a principled way, and very easy to apply selectively. And they can justify striking down nearly any significant rule that a majority of the justices dislike.

The justices, in other words, have set themselves up as the final censors of any regulatory action. The Biden administration may still propose new rules, but those rules are likely to stand only if five justices agree with them.

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Sounds like someone's askin' for an ass fulla lightning.

Today's News:

Thursday’s Supreme Court decision blocking the federal government’s mandate that large businesses require vaccinations or tests of their employees is being seen as a blow to the Biden administration’s efforts to combat the Covid-19 pandemic. It is certainly that, despite the court’s split decision allowing the same mandate to remain in force for medical facilities that accept money under the Social Security Act.

But the biggest loser coming out of these decisions is not the president’s reputation as a problem solver but decades of constitutionally established power-sharing between the legislative and executive branches. And the winner, if that’s the right term, is the Supreme Court itself, which has executed an unprecedented power grab and masked it as an act of judicial restraint.

How did the court’s conservative 6-3 majority pull this off?

Here’s the key passage with the court’s unsigned opinion: “Although Covid– 19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. Covid–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather.” Because the statute gives the Occupational Safety and Health Administration authority to enact standards “reasonably necessary or appropriate to provide safe or healthful employment,” it reasoned, and Covid-19 doesn’t just spread in the workplace, OSHA acted outside its lane of authority. The vaccine-or-test mandate “draws no distinctions based on industry or risk of exposure to Covid-19,” and thus cannot be enforced. “[M]ost lifeguards and lineman face the same regulations as do medics and meatpackers,” for example.

The logical flaw in the majority’s reasoning is that this line-drawing isn’t required by the actual 1970 law (the Occupational Safety and Health Act) that established OSHA. Back in 1979, the Court recognized in Industrial Union Department v. American Petroleum Institute that OSHA has “broad authority … to promulgate different kinds of standards.” Justice Stephen Breyer in his dissenting opinion thus explained: “The Standard falls within the core of the agency’s mission to ‘protect employees’ from ‘grave danger’ that comes from ‘new hazards’ or exposure to harmful agents,” as set forth in the relevant part of the OSH Act.

What the majority is really saying, then, is that it doesn’t like how much power Congress gave to OSHA in the first place. The question of whether Congress can delegate its lawmaking powers to executive branch agencies has been debated for decades. But since the 1930s, the court has basically allowed Congress to give agencies rulemaking power under Article I’s “Necessary and Proper” clause, in part on the theory that courts lack the kind of expertise that agencies have. Moreover, even though they are not elected, agency employees answer to someone who is accountable to voters: the president.

This is known as the delegation of legislative power. Instead of keeping its lawmaking power for itself, Congress gives the executive branch the power to fill in the inevitable blanks it leaves in legislation. When executive branch agencies respond, the resulting laws are often known as “regulations.” But they function with virtually the same force of law as an act of Congress itself. The legal critique of the practice of handing off lawmaking power to agencies has not garnered traction in the Supreme Court for nearly a century. Only a tiny handful of court decisions in the New Deal era struck down Congress’ decisions to delegate legislative authority under the so-called non-delegation doctrine.

The court’s majority opinion signals that this Supreme Court is poised to strike down an undisclosed segment of federal regulations that don’t follow express, detailed authority from Congress. And even more troubling, the court’s conservatives have apparently determined that Congress may do so only if the subject matter of the law implicates what the court deems a “major question,” a nebulous and undefined term that has no textual support in the Constitution. Because our polarized Congress is shockingly dysfunctional when it comes to substantive policy, it doesn’t bode well for the country’s legislative needs.

So, there’s a looming Supreme Court threat to the viability of federal regulations as the ongoing bread-and-butter means of passing laws that span virtually every aspect of American life, from workplace safety and environmental protection to financial regulation and national child welfare. And these government actors aren’t elected or susceptible to losing their jobs at the ballot box. If a new threat to human health arises that affects workers by the millions, then Congress better have predicted the specific threat in the legislation enabling an agency to deal with it — or get its act together and pass actual emergency legislation under Article I. Of course, the horrors and unknowns of Covid-19 belie the feasibility of this option. The court is essentially saying, “Unless the states step in to address the next epic pandemic, you’re on your own, folks.”

Justice Neil Gorsuch’s concurring opinion lays out the conservatives’ theory well, even tying it expressly to the non-delegation doctrine. When the federal government acts, he explained, “[i]t must … act consistently with the Constitution’s separation of powers. And when it comes to that obligation, this Court has established at least one firm rule. ‘We expect Congress to speak clearly’ if it wishes to assign to an executive agency decisions ‘of vast economic and political significance.’” For this proposition, Gorsuch cites a decision from 2019 and one from 2021 — both recent, and both issued in an era of modern conservative-leaning jurists dominating the court. Gorsuch notes that “[w]e sometimes call this the major questions doctrine.”

To be clear, the so-called major questions doctrine was made up by the Supreme Court. It’s not in the Constitution. But Gorsuch added that “the major questions doctrine is closely related to what is sometimes called the nondelegation doctrine.” A wolf in sheep-like clothing.

Since 1984, the operative doctrine for reviewing agency regulations was not the major questions doctrine. Instead, it’s set forth in a landmark case called Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. Under that decision, the Supreme Court resisted the power to rewrite regulations by judicial fiat, instead holding that so long as Congress gives the agency rulemaking power by statute, the agency can reasonably exercise its discretion to fill in the gaps of the legislation by issuing rules. If the agency does this, courts should defer to the policymaking judgment of the agency, on the theory that they have more relevant substantive expertise than federal judges. For example, the public is undoubtedly better served by experts at the Nuclear Regulatory Commission making rules about reactor safety and security than unelected generalists in black robes.

The conservatives’ major questions doctrine puts that power solidly in the judicial branch, handing it ultimately to Supreme Court justices who can now decide which laws they like and don’t like with virtually no oversight or constraints. This amounts to a constitutional power-grab. But not by agencies. It’s by the Supreme Court itself.

Day by day, many Republicans are increasingly comfortable saying the quiet parts out loud. In a recent incident, one Republican representative has come under fire for forwarding a message to his congressional email list that contained commentary from a right-wing commentator who belittled, stereotyped, and spoke ill of immigrants.

In the email sent by Arizona’s Republican Rep. Paul Gosar, a statement by Stew Peters at Red Voice Media claimed “[d]iversity isn’t America’s strength,” and went on to warn readers that the country will suffer “if America replaces its existing population with foreigners who are more violent or less capable.” 

According to Media Matters, Gosar forwarded the email to his list on Jan. 6 from his House of Representative's office. In addition, Gosar has also been using his list to promote a white nationalist website that warns that Haitians are purportedly “coming here to invade our country.”

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The website, called Daily Veracity, also posts antisemitic content; recently, it featured a list of “Jews at the top in media.” According to Media Matters, the full email reads:

America is real. It’s not some melting pot or just some arbitrary borders with a random collection of world travelers just dumped into it. America is a real nation with a real historic identity, founding principles, philosophies, values, aesthetics.

Demographics are destiny. Human beings are different from each other, and it doesn’t help anyone to lie about it and pretend that everything is a social construct.

If America replaces its existing population with foreigners who are more violent or less capable, then this country will suffer. I don’t know why that’s so hard for people to grasp. It’s really quite simple.

America has a cultural identity that’s legitimate and worthy of defending. Diversity isn’t America’s strength, and if managed incorrectly, it can actually be its crippling weakness. America’s strength is its bedrock: the American people. And these people deserve to be protected from a globalist elite that hates them and wants them humiliated or destroyed and replaced or dead.

This isn’t the first time Gosar has said tried to spread a racist agenda or promoted white nationalism and extremist content. As The Washington Post reports and you may recall, the Republican representative was censured and stripped of his committee assignments in November after sharing an animated video of himself killing Rep. Alexandria Ocasio-Cortez.

Election law expert Richard L. Hasen on the problem of election subversion — and what can be done to stop it.

About a year after President Joe Biden’s inauguration — and following the one-year anniversary of an insurrection that sought to block the certification of the 2020 presidential election — a majority of Republican voters continue to cling to the falsehood that Biden was illegitimately elected to the White House.

The rejection of the legitimacy of the 2020 election by many Republicans has fueled widespread, state-level voter suppression campaigns and a growing effort to subvert America’s election system.

In a last-ditch effort, Biden is calling for filibuster reform to pass two voting rights bills: the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. Both bills face long odds in the Senate without changing the filibuster rules.

But as the 2022 midterm elections loom, voting rights and election law experts are sounding the alarm about risks that neither bill would fully address.

They’re calling attention to election subversion, a strategy to would negate legitimate election results by simply refusing to accept them — like, for example, appointing rogue presidential electors. (Following the 2020 election, Trump pressured Republican lawmakers in states like Michigan, Georgia, and Pennsylvania to replace the state’s electors in an attempt to reject each state’s popular vote.) This part of election law hasn’t incited as much public outrage as the many laws restricting voting passed by Republican-run state legislatures in 2021.

“The 2020 election showed numerous paths for trying to manipulate election outcomes,” said Richard L. Hasen, a professor of law and political science at the University of California Irvine and the author of Election Meltdown and the forthcoming Cheap Speech. “And although the system barely held last time, because we had some heroic people, including heroic Republicans, there’s good reason to believe a lot of those people will no longer be in office at the time of the next election,” he said.

According to Hasen, lawmakers can’t simply believe that democracy will hold itself together against these threats.

As the Senate prepares to consider voting rights legislation — and as legislative circumstances for Democrats remain bleak — I talked to Hasen about what’s at stake for voters and the country’s election system overall. Our conversation has been edited for length and clarity.

Fabiola Cineas

This week seems like a big moment for voting rights. Biden and Harris went to Atlanta to push for voting rights legislation and on the heels of the January 6 anniversary, people are talking about the threat of election subversion. And unlike before, Biden is pushing lawmakers for a filibuster carve-out. But at the same time, voting rights activists are boycotting Biden’s speech, saying he’s put forth little action. What do you make of all of this? Does Biden’s speech mean anything right now?

Richard L. Hasen

What is Biden’s endgame? I don’t understand it. It seems to me that he’s setting up a lot of people for disappointment. He’s making it a priority now because probably he doesn’t have much choice in terms of getting pressure from the Democratic base to do something. But it seems like too little too late. Really. He should have been on voting rights last summer. He should have been giving speeches all around the country, getting a lot of attention to this issue. He should have gone to West Virginia and Arizona. I’m not seeing any movement among those wavering senators about making some different filibuster rule to get this thing passed.

And meanwhile, I think Democrats separately squandered an opportunity that they could have had back last January, a year ago, to deal with the election subversion issue. There seems like there’s maybe a little more hope about that because you are hearing noises from some Republicans to the effect of Electoral Count Act reform and other kinds of anti-subversion legislation. Maybe there’s a path for that, I don’t know. But it doesn’t seem to be quite as dire as the situation related to voter suppression.

Fabiola Cineas

Do you give Biden any credit for going farther than he ever has in talking about a filibuster carve-out?

Richard L. Hasen

Well, sure. He’s actually saying it, I just don’t know what good it is going to do at this point. I wrote a piece in March of last year saying this needs to happen now. This needed to be prioritized back then — Democrats were spending all this time on the very broad HR 1 [the For the People Act], which is even broader than the Freedom to Vote Act, but since they were talking about voting rights they should have been focused on the John Lewis bill which was much more pinpointed in dealing with voter suppression and, which, I thought had a better chance to pass. Although now, neither one seems like it’s going to get us there.

Fabiola Cineas

And though these laws — the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act — have been on the table for months and months, would they still have the power to restore and protect voting rights and also fight election subversion?

Richard L. Hasen

I think that if both the John Lewis Voting Rights Act and the Freedom to Vote Act passed in their current form, they would go a very long way toward dealing with serious voting rights problems in the country, from restoring preclearance to making it harder to engage in partisan gerrymandering to improving campaign finance disclosure. It would not have done much on the issue of election subversion, which I think of as kind of a separate type of problem.

Fabiola Cineas

What is your definition of a free and fair election?

Richard L. Hasen

In a free and fair election system, all eligible voters can easily cast a ballot that will be fairly and accurately counted. And the results will reflect the choices of those voters. So it’s a low bar if we can reach it.

Fabiola Cineas

You’ve drawn attention to the fact that we are now at a place where a majority of Republican voters say they believe Trump’s “big lie” that the election was stolen. And accepting this lie is part of what it means to be a Republican. This also means that they’re willing to accept a stolen election for their side next time. What does this mean for 2024 and how do you see this playing out for midterms this year?

Richard L. Hasen

First of all, I think this issue is the subversion issue, not voter suppression. The biggest impact of these false beliefs on the part of Republicans about a stolen election on 2022 is that they make it more likely that those who will be running elections in 2024 will be people who embrace the “big lie.” There’s a very good NPR compilation of [more than a dozen] Republicans running for secretary of state or other election office, who have embraced the “big lie” or used to say that Biden illegitimately won the election. Those people, if they’re running the election in 2024 for president, create a dual problem. First, are they going to fairly administer the election and second, even if they would fairly administer the election, would voters believe that they would fairly administer the election? After all, if you agree with these false claims, how do we know if you could tell truth from fiction? Or if you would be on the level of explaining the reality of what’s going on in your elections?

Fabiola Cineas

As we settle into a new year, what are some of the key problems affecting the US election system now?

Richard L. Hasen

I think the most immediate threat — and this is the point I’ve been trying to drive home as an even greater risk than voter suppression, which is a real problem — is this risk of stolen elections or election subversion. This is something I never expected to have to worry about in the contemporary United States but here we are. It’s a risk that the true election winner will not get declared the winner. And this is a risk that is uniquely problematic for the presidential election because that election features so many steps in the process between the time that the voters votes and the time that those votes are finally subject to certification by Congress.

And what we learned from 2020 and Trump’s attempts to manipulate the process is that there are lots of pressure points. We depend so much on people acting in good faith, rather than on rules that limit discretion. We need to be able to limit discretion and make sure that those who are in charge of counting and certifying the votes are people who are going to do so, following the rules. Changing the rules won’t be enough, but changing the rules is necessary.

Fabiola Cineas

Can you say more about the threats that election administrators are facing, from being forced to leave the field to being threatened by Trump, and how these endanger the election ecosystem?

Richard L. Hasen

Administrators are saying they’re going to retire before 2024 and some of the people who are going to replace them are people who believe the false claims about the 2020 election being stolen. So we have both a loss of experience among those who administer elections but we also have a potential that the people who are replacing them are going to be not administering elections fairly. And election administrators for the most part are not paid well. They work under very stressful conditions under the best of circumstances. And to have them face the threat of violence and being accused of committing fraud when they’re not is very problematic.

Our election administrators, our poll workers, are our frontline. We need to have competent election administrators who are acting fairly and whose results are accepted as legitimate and when that building block is undermined the whole edifice of our democracy is threatened.

Fabiola Cineas

Can the 1887 Electoral Count Act, which sets the deadlines by which states have to certify and then transmit their slate of electors to Congress, actually be amended to prevent partisan manipulation of Congress’ count of state electoral slates?

Richard L. Hasen

Amending the Electoral Count Act is something that would be helpful in lowering the risk of election subversion. It alone won’t eliminate the risk. But I think a lot could be done. Especially if done on a bipartisan basis. If Democrats and Republicans agreed to the changes that would help a great deal.

Fabiola Cineas

So what’s your response to people who say that what you’re laying out is unlikely to happen? Many people seem to believe that things will just work themselves out.

Richard L. Hasen

I have a few responses. One is, if you look at 2020, we came much closer to a successful subversion of the election results than a lot of people understand. It wouldn’t have taken much if Mike Pence had been assassinated or he had decided to try to take power in his own hands to reject the Electoral College vote, or if state legislatures had sent in a few slates of electors causing a political and constitutional crisis. So one answer is, we’re a lot closer to this than people think.

And the other is, even if the risk is relatively small, which I don’t believe it is, it’s still catastrophic. I’ve said before, I feel kind of like a climate scientist or an epidemiologist. This is what I do. I study this stuff all day every day and my warning lights are flashing red. You look at people who study the rise of authoritarianism and transitions from democracy in other countries — they’ve reached the same conclusion.

If you talk to Larry Diamond at Stanford or Steve Levitsky and Daniel Ziblatt, the authors of How Democracies Die, those authors are briefing Senate Democrats. If you talk to those people, they are frightened. I think people who try to minimize the risks are just in denial or not paying attention.

Fabiola Cineas

Why do you think some lawmakers continue to act like democracy isn’t being seriously threatened?

Richard L. Hasen

Well, I think it’s different for Democrats and Republicans. I think Republicans, many of them are afraid to stand up to Donald Trump. They know they’ll face a primary. Look what happened to [GOP Sen.] Mike Rounds this weekend when he said that the election was fair. He was attacked by Trump. There’s a huge cost to be paid as a Republican for standing up.

And Democrats, it’s more of a mystery to me as to why they don’t see the house on fire like I do. You’ll have to ask them. There’s been a reluctance to separate out the question of subversion from voting rights. I think they should have been pursued separately on separate tracks as sort of a pursuit on a bipartisan basis in January of 2021. That’s when emotions were still raw, when Mitch McConnell was still talking about what a danger Donald Trump was to democracy, something he’s no longer talking about.

Fabiola Cineas

What can Democrats do now to move forward and fight election subversion while also restoring and protecting voting rights?

Richard L. Hasen

There’s some reporting now that there are at least four Republican senators that are in talks about reforming the Electoral Count Act. I would hope that that would broaden, both in terms of the number of Republican senators that would be willing to have a discussion about this, as well as broadening beyond the Electoral Count Act to other provisions that can minimize election subversion. I think there’s more room for bipartisan compromise on election subversion. Maybe we’ll get some movement in that direction.

Fabiola Cineas

And looking to midterms, is there anything more immediate that we should focus on when it comes to voting rights?

Richard L. Hasen

What the future holds is uncertain. A lot of the opportunities that may have been available in Congress seem to be closing. I think what we need to think about is what we as individuals can do to shore up our election system. I don’t know that any legislative solution is going to be forthcoming, and the danger to our election system is real. So it may take mass peaceful protests and organizing in order to assure that we have fair elections in the future. I don’t know that they’ll be necessary, but I think we need to be prepared for them because there are these risks that the vote count will not be fair.

Using data from NOAA, Krishna Karra and Tim Wallace for The New York Times mapped all-time temperature records set in 2021. Red indicates an all-time high, and blue indicates an all-time low. Circle size represents the degree difference from the previous record.

Tags: climate change, New York Times, temperature

From the Petition for Certiorari in the case, Kennedy v. Bremerton School Dist. (for the opinions below, see here and here):

Petitioner Joseph Kennedy lost his job as a football coach at a public high school because he knelt and said a quiet prayer by himself at midfield after the game ended. After considering an interlocutory petition in which Kennedy sought review of the lower courts' refusal to grant him a preliminary injunction, four members of this Court observed that "the Ninth Circuit's understanding of the free speech rights of public school teachers is troubling and may justify review in the future," but concluded that this Court should stay its hand until the lower courts definitively determined the reason for Kennedy's termination.

The statement also noted that Kennedy had a then-unaddressed claim under the Free Exercise Clause. On remand, the lower courts found—and the school district ultimately agreed—that Kennedy lost his job solely because of his religious expression. Yet the Ninth Circuit nevertheless ruled against him again. The court not only doubled down on its "troubling" free-speech reasoning, which transforms virtually all speech by public-school employees into government speech lacking any First Amendment protection, but reached the remarkable conclusion that, even if Kennedy's prayer was private expression protected by the Free Speech and Free Exercise Clauses (which it undoubtedly was), the Establishment Clause nevertheless required its suppression. The court denied en banc review over the objection of 11 judges.

The questions presented are:

1. Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection.

2. Whether, assuming that such religious expression is private and protected by the Free Speech and Free Exercise Clauses, the Establishment Clause nevertheless compels public schools to prohibit it.

Here's the 2019 (pre-Justice-Barrett) statement by Justice Alito, joined by Justices Thomas, Gorsuch, and Kavanaugh:

Petitioner Joseph Kennedy claims that he lost his job as football coach at a public high school because he engaged in conduct that was protected by the Free Speech Clause of the First Amendment. He sought a preliminary injunction awarding two forms of relief: (1) restoration to his job and (2) an order requiring the school to allow him to pray silently on the 50-yard line after each football game. The latter request appears to depend on petitioner's entitlement to the first — to renewed employment — since it seems that the school would not permit members of the general public to access the 50-yard line at the relevant time.

The key question, therefore, is whether petitioner showed that he was likely to prevail on his claim that the termination of his employment violated his free speech rights, and in order to answer that question it is necessary to ascertain what he was likely to be able to prove regarding the basis for the school's action. Unfortunately, the answer to this second question is far from clear.

On October 23, 2015, the superintendent wrote to petitioner to explain why the district found petitioner's conduct at the then-most recent football game to be unacceptable. And in that letter, the superintendent gave two quite different reasons: first, that petitioner, in praying on the field after the game, neglected his responsibility to supervise what his players were doing at that time and, second, that petitioner's conduct would lead a reasonable observer to think that the district was endorsing religion because he had prayed while "on the field, under the game lights, in BHS-logoed attire, in front of an audience of event attendees."

After two subsequent games, petitioner again kneeled on the field and prayed, and the superintendent then wrote to petitioner, informing him that he was being placed on leave and was forbidden to participate in any capacity in the school football program. The superintendent's letter reiterated the two reasons given in his letter of October 23. And the district elaborated on both reasons in an official public statement explaining the reasons for its actions.

When the case was before the District Court, the court should have made a specific finding as to what petitioner was likely to be able to show regarding the reason or reasons for his loss of employment. If the likely reason was simply petitioner's neglect of his duties — if, for example, he was supposed to have been actively supervising the players after they had left the field but instead left them unsupervised while he prayed on his own — his free speech claim would likely fail. Under those circumstances, it would not make any difference that he was praying as opposed to engaging in some other private activity at that time.

On the other hand, his free speech claim would have far greater weight if petitioner was likely to be able to establish either that he was not really on duty at the time in question or that he was on duty only in the sense that his workday had not ended and that his prayer took place at a time when it would have been permissible for him to engage briefly in other private conduct, say, calling home or making a reservation for dinner at a local restaurant.

Unfortunately, the District Court's brief, informal oral decision did not make any clear finding about what petitioner was likely to be able to prove…. The decision of the Ninth Circuit was even more imprecise on this critical point…. Here, although petitioner's free speech claim may ultimately implicate important constitutional issues, we cannot reach those issues until the factual question of the likely reason for the school district's conduct is resolved. For that reason, review of petitioner's free speech claim is not warranted at this time….

While I thus concur in the denial of the present petition, the Ninth Circuit's understanding of the free speech rights of public school teachers is troubling and may justify review in the future.

The Ninth Circuit's opinion applies our decision in Garcetti v. Ceballos (2006), to public school teachers and coaches in a highly tendentious way. According to the Ninth Circuit, public school teachers and coaches may be fired if they engage in any expression that the school does not like while they are on duty, and the Ninth Circuit appears to regard teachers and coaches as being on duty at all times from the moment they report for work to the moment they depart, provided that they are within the eyesight of students.

Under this interpretation of Garcetti, if teachers are visible to a student while eating lunch, they can be ordered not to engage in any "demonstrative" conduct of a religious nature, such as folding their hands or bowing their heads in prayer. And a school could also regulate what teachers do during a period when they are not teaching by preventing them from reading things that might be spotted by students or saying things that might be overheard.

This Court certainly has never read Garcetti to go that far. While Garcetti permits a public employer to regulate employee speech that is part of the employee's job duties, we warned that a public employer cannot convert private speech into public speech "by creating excessively broad job descriptions." …

What is perhaps most troubling about the Ninth Circuit's opinion is language that can be understood to mean that a coach's duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith — even when the coach is plainly not on duty. I hope that this is not the message that the Ninth Circuit meant to convey, but its opinion can certainly be read that way. After emphasizing that petitioner was hired to "communicate a positive message through the example set by his own conduct," the court criticized him for "his media appearances and prayer in the BHS bleachers (while wearing BHS apparel and surrounded by others)." This conduct, in the opinion of the Ninth Circuit, "signal[ed] his intent to send a message to students and parents about appropriate behavior and what he values as a coach."

But when petitioner prayed in the bleachers, he had been suspended. He was attending a game like any other fan. The suggestion that even while off duty, a teacher or coach cannot engage in any outward manifestation of religious faith is remarkable….

While the petition now before us is based solely on the Free Speech Clause of the First Amendment, petitioner still has live claims under the Free Exercise Clause of the First Amendment and Title VII of the Civil Rights Act of 1964. Petitioner's decision to rely primarily on his free speech claims as opposed to these alternative claims may be due to certain decisions of this Court.

In Employment Div., Dept. of Human Resources of Ore. v. Smith (1990), the Court drastically cut back on the protection provided by the Free Exercise Clause, and in Trans World Airlines, Inc. v. Hardison (1977), the Court opined that Title VII's prohibition of discrimination on the basis of religion does not require an employer to make any accommodation that imposes more than a de minimis burden. In this case, however, we have not been asked to revisit those decisions.

Note that the Title VII issue is now within the question presented on which the Supreme Court has just granted review; the Free Exercise Clause issue is, though the petition seems to call for applying existing Free Exercise Clause principles rather than for reversing Smith.

The post S. Ct. Agrees to Hear Free Exercise Clause / Public High School Coach Prayer Case appeared first on Reason.com.

Officials at the Administrative Office of the U.S. Courts recently made a mistake: They provided an opening for staffers in federal judges’ offices to report that they had “witnessed wrongful conduct in the workplace.” The question was quickly pulled, but not before 34 out of 40 people who responded said that yes, they had.

The question appeared on the registration for a training on “Workplace Conduct Protections & Employment Dispute Resolution,” a training to “explore employment rights in the federal judiciary, the avenues for reporting misconduct and obtaining guidance, the EDR process, and options for resolution,” The Washington Post reports. So it’s possible that the people interested in the subject have disproportionately experienced or witnessed misconduct.

Still.

A spokesman for the Administrative Offices of the U.S. Courts told the Post, “This was an unfortunate administrative error. No more—no less,” and that it was too small a sample to be meaningful, and that some of the people might have been talking about other jobs they had before they worked in the federal courts. That’s … a lot of excuses. But the federal judiciary has very good reason to be defensive about this.

Federal laws against workplace discrimination and retaliation do not apply to the federal judiciary. In their chambers, judges wield an amount of power that is unusual even in the U.S. employment system in which employers are so powerful. Every year, judges get a new crop of judicial clerks, young lawyers for whom a year in a judge’s office is a career-maker, and over whom judges have an astonishing amount of control. It’s a system in which sexual harassment goes unchecked—despite a couple of high-profile cases in which former clerks have courageously spoken out, we can be certain that the judges whose longtime patterns of harassment have been outed were not the only ones. (Note that Justice Brett Kavanaugh clerked for the predatory Judge Alex Kozinski.) This is a system basically designed to create abuses: judges with lifetime appointments, staffers without protections for whom this is make or break.

Chief Justice John Roberts has in recent years addressed the issue of sexual harassment and other workplace abuses, strengthening some internal procedures, but continues to insist that the judiciary can police itself and should not face external oversight. The fact that officials so quickly pulled the question offering staffers in judges’ chambers to report that they’ve witnessed misconduct is another sign that Roberts’ position is more about protecting abusive judges than about believing that the judiciary can really fix things.

“The judiciary cannot adequately assess whether misconduct is pervasive without robust and retrospective reviews, including questions tailored to assess the nature and frequency of such conduct,” an attorney who represents current and former federal judiciary workers told the Post in an email. “Although these issues are present in many workplaces, the judiciary is uniquely insulated from basic workplace protections and continues to insist on self-policing, which may explain these numbers and the lack of formal reports filed.”

This is a system that creates elites. Look at the ranks of recently appointed federal judges and you will find that the vast majority of them previously clerked for federal judges. Similarly, for lawyers in agencies across the federal government, as well as in major law firms and other places where you’ll find highly paid lawyers, clerking for a federal judge is a major resume line. If a society’s elites are shaped by a system in which they themselves have been exposed to abuse in unaccountable situations, then a large number of them will carry forward the view that abuse and lack of accountability is normal and routine. Additionally, there are thousands of people in the federal judiciary system who are not term law clerks—secretaries, paralegals, judicial assistants—people for whom this is a long-term job. They don’t get federal workplace protections, either.

It may well be the case that an informal survey as part of a registration for a training that not everyone will take is not the right place to ask whether staffers in judges’ chambers have witnessed inappropriate workplace conduct. But it’s a question that the federal judiciary needs to be asking all of its workers, rather than running scared when it starts to get answers.

Senate Majority Leader Chuck Schumer has announced his plans to force a reckoning on legislation to protect voting rights in the United States. What happens over the next few hours and days may dictate whether or not we can snatch back our democracy from the jaws of oligarchy. In spite of Sens. Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ)’s attempts to play the role of corrupt ostriches, sticking their heads in the sand, the House has passed, The combined NASA/Freedom to Vote: John R. Lewis Act. The plan is to make senators step up to the plate and defend the indefensible: Why we should not protect the voting rights of American citizens.

By combining the Freedom to Vote: John R. Lewis Act with an already Senate-approved NASA bill, Republicans cannot kill the bill before it is debated. As of the writing of this story, Sen. Sinema has stepped out to give a speech that may go down in history as one of the single most shameful and self-abasing moments of bullshit in the history of bullshit. But for how terrible a person Kyrsten Sinema is, and no matter how corrupt Joe Manchin and his entire family are, Senate Minority Leader Mitch McConnell and his do-nothing GOP will always be the basest of humanity. 

The Republican Party’s hypocrisy surrounding the use of the filibuster is mythological at this point in American history. This hypocrisy is fed by the stream of lies the GOP (as well as Manchin and Sinema) continue to spew out into the world in regards to the history of the filibuster and its constitutional relevance.

Many people have pointed out that Mitch McConnell has defended the Voting Rights Act at various stages of his long career, and his statements against it now are very obvious examples of craven hypocrisy. But MSNBC’s Hayes Brown dug up this video of then-Assistant Majority Leader Sen. Mitch McConnell explaining how the Senate is “is totally within its rights to invoke cloture with just a majority of votes and how the filibuster was used to block civil rights bills.”

The context here was when Democratic senators used the filibuster to slow down a series of former president George W. Bush’s judicial nominees.

Here’s Senate Minority Leader Mitch McConnell making the argument that he’s a racist, and always has been, and therefore he is in opposition to the Voting Rights Act as of Jan. 12, 2022. To put this into context: The official surrender of Confederate Gen. Robert E. Lee took place on Apr. 9, 1865.

Arizona Democratic Sen. Kyrsten Sinema gave a floor speech in the Senate Thursday that has been unequaled in cringeworthiness since Sen. Susan Collins stood there and told the nation that she was going to vote for Brett Kavanaugh on the Supreme Court because he deeply revered precedent, especially when it came to abortion rights. We all know how that turned out.

Sinema’s floor remarks were a stab in the back to President Joe Biden (and all her Democratic colleagues) moments before Biden was scheduled to meet with her. She insisted that she really does support the Freedom to Vote and John Lewis Voting Rights bills, but that they “treat the symptoms of the disease, but they do not fully address the diseases and while I continue to support these bills, I will not support separate actions that worsen the underlying disease of division affecting our country.” Meaning she would not help Republicans break the filibuster in order to pass these bills she supports. Because both sides. Literally. She both-sides-ed Jan. 6 and the Big Lie. She doubled down on that, literally blaming Democratic leadership for not working harder to get Republicans to work with them.

“I wish there had been a more serious effort on the part of Democratic Party lines to sit down with the other party and genuinely discuss how to reforge common ground on these issues,” she said. Never mind that the Freedom to Vote Act was entirely rewritten by Joe Manchin to get Republicans on board and every single one of them refused. And when Majority Leader Chuck Schumer tried to bring the bill to the floor, Republicans filibustered the motion to proceed to it—they didn’t even allow the Senate to debate it.

She might as well have announced her defection to the Republicans in that speech, because in practicality that’s what she did. She’s supporting Minority Leader Mitch McConnell’s veto of these bills and everything else in Biden’s legislative agenda, essentially. She’s trying to call it principle about the sanctity of the filibuster, but she had no problem voting just last month to break the filibuster to raise the debt ceiling. Which makes her pretty much a Republican. She’s got the lying and the trolling down pat.

Really, what Gabe Ortiz tweeted:

This, plus Thursday’s announcement by Sen. Brian Schatz (D-HI) that he has COVID and the absence of Sen. Dianne Feinstein (D-CA) to an undisclosed illness means that the plan to expedite the voting rights bills on the Senate floor will have to be delayed, at the least. Schumer can still force a debate on the bills through the procedure Democrats crafted, but it can’t succeed.

All that said, we need a palate cleanser after Sinema. Here is Arizona Democratic Rep. Ruben Gallego speaking on the House floor immediately following Sinema’s Senate speech.

On January 6 we witnessed a violent coup attempt in our Capitol fueled by the Big Lie. Our country continues to face a slow-moving coup in the form of voter suppression. I’ve seen first hand in my home state of Arizona voter suppression laws targeting people of color and a state senate that would rather waste taxpayer money on a sham audit instead of upholding our most sacred democratic right, the right to vote.

The Freedom to Vote/John Lewis Voting Rights Act is critical to protecting the vote in my state and states across the country where restrictive laws are being put into place to strip people of the right to vote. Arizona will stand strong together this weekend. Thousands will gather this Saturday in Phoenix for democracy and voting rights. Passing this bill today answers their call by guaranteeing access to democracy to every Arizonan.

Today, the House showed where it stands. We won’t shrink from protecting our democracy and the voting rights of all Americans. It’s past time for the U.S Senate, and Senator Sinema to do the same.

Thank you, Gallego. That kind of honesty and clarity is what Arizona—not to mention the nation—needs from its elected officials. 

How McCarthy's refusal to testify about Jan. 6 may be more serious than you think.

As poet, performer, and social activist Maya Angelou famously said, “When people show you who they are, believe them.” So, when former Sen. Dean Heller boasts about fixing Nevada’s 2024 presidential elections in favor of Trump, believe him. 

Heller, who is running for governor of Nevada, constantly boasts about conversations with former President Donald Trump, where he allegedly tells the former president that if he wants to become president then, “one, we have to try to stop this law they’re trying to pass in Washington, D.C., to take over our election laws, and two, we have to change the laws we have here in Nevada,” Heller said. 

At a Republican debate on Jan. 6, Heller was booed after claiming to be “the only proven conservative” in the race against Democratic Gov. Steve Sisolak. 

He used his usual talking points at the debate saying, “I tell [Trump], the only way we can guarantee that, in 2024, we have a Republican president, is we need a leader here in the state of Nevada that understands our election laws and [is] willing to change them.”

After Nevada went for President Joe Biden in 2020, Heller began promoting his version of the Big Lie. Telling The Nevada Independent that although he knew Biden won, “we made it easier to cheat in future elections.” Adding: “After the 2020 election, most Republicans believe President Trump had won that election. This is chaos, and this chaos continues over and over.”

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What Heller is proposing seems to be the GOP’s new platform, not simply continuing to pedal bogus election fraud claims, but now, they’re in the business of fixing elections and cheating about the ones they lost.  

As the mountains of documents are gathered and combed through by the House committee investigating Trump’s efforts to subvert the 2020 election, evidence is mounting that proves corruption and deception were happening on all local and executive levels.

The latest was uncovered by Politico in a records request. Not one, but three states forged documents declaring Trump the winner where, in reality, Joe Biden had won.

Groups of Republicans in Arizona, Wisconsin, and Michigan gathered together and forged official election paperwork, pretending to be actual electors from the states where Biden won, casting their votes for Trump (who as we know, lost), and sent those fraudulent documents to the U.S. Senate and the U.S. Archivist, as if the materials were real. They were not.

While many GOP-led states push to limit voting rights, the Brennan Center released a report saying that secretary of state candidates in Georgia, Michigan, and Minnesota have more than doubled their overall fundraising, in comparison to 2018 and 2014 midterms. 

Axios reports that Georgia Secretary of State Brad Raffensperger’s reelection campaign raised four times more money by last June than he had at the same point in 2018. And Trump-backed Rep. Jody Hice raised more money than anyone else in the Georgia secretary of state race.

In Michigan, Secretary of State Jocelyn Benson, a Democrat, has nearly quintupled her 2018 cycle draw as of last October, coming in at $1.2 million.

Ted Cruz wants the Court to kill an important anti-corruption law.

The details of Federal Election Commission v. Ted Cruz for Senate, a case that the Supreme Court will hear next Wednesday, read more like a paranoid fantasy dreamed up by leftists than like an actual lawsuit.

The case concerns federal campaign finance laws, and, specifically, candidates’ ability to loan money to their campaigns. Candidates can do so — but in 2001, Congress enacted a provision that helps prevent such loans from becoming a vehicle to bribe candidates who go on to be elected officials. Under this provision, a campaign that receives such a loan may not repay more than $250,000 worth of the loan using funds raised after the election.

When a campaign receives a pre-election donation, that donation is typically subject to strict rules preventing it from being spent to enrich the candidate. After the election has occurred, however, donors who give money to help pay off a loan from the candidate effectively funnel that money straight to the candidate — who by that point could be a powerful elected official.

A lawmaker with sufficiently clever accountants, moreover, could effectively structure such a loan to allow lobbyists and other donors to help the lawmaker directly profit from it. According to the Los Angeles Times, for example, in 1998, Rep. Grace Napolitano (D-CA) made a $150,000 loan to her campaign at 18 percent interest (though she later reduced that interest rate to 10 percent). As of 2009, Napolitano reportedly raised $221,780 to repay that loan — $158,000 of which was classified as “interest.”

So in 11 years, the loan reportedly earned Napolitano nearly $72,000 in profits.

And that brings us back to the Ted Cruz for Senate lawsuit. Sen. Ted Cruz (R-TX) wants the Supreme Court to strike down the limit on loan repayments to federal candidates. That decision could potentially enable any lawmaker to make a high-dollar, high-interest loan to their campaign, and then use that loan as a vehicle to funnel donations directly into their pocket. (Pre-2001 FEC rulings permitted candidates to make loans to their campaign at “a ‘commercially reasonable rate’ of interest,” but that apparently did not stop Napolitano from making a loan at a double-digit interest rate.)

And even if lawmakers do not enrich themselves by making high-interest loans to their campaign, the fact remains that every dollar a campaign donor gives to help a campaign pay back a loan from the candidate goes straight into that candidate’s pocket. As the Justice Department argues in its brief defending against Cruz’s lawsuit, “a contribution that adds to a candidate’s personal assets (and that can accordingly be used for personal purposes) poses a far greater threat of corruption than a payment that merely adds to a campaign’s treasury (and that can accordingly be used only for campaign purposes).”

Cruz claims that permitting such contributions is necessary to protect “the rights of candidates and their campaign committees to make constitutionally protected decisions about when and how much to speak during an election.”

While a decision in Cruz’s favor could effectively make it legal for wealthy donors to bribe lawmakers, Cruz has a very good chance of prevailing in a Supreme Court where Republicans control six of the Court’s nine seats.

Although current precedents nominally permit Congress to enact campaign finance laws to prevent “corruption and the appearance of corruption,” the Court’s decision in Citizens United v. FEC (2010) defined the word “corruption” so narrowly that it is basically meaningless. And the current Court is significantly more conservative than the one that handed down Citizens United a dozen years ago.

Justice Brett Kavanaugh, for example, suggested in a 2002 email that he wrote while he was a White House official that there are “some constitutional problems” with laws placing a cap on how much an individual donor can give to a candidate — something that even decisions like Citizens United permit.

Similarly, just last July, the Supreme Court voted along party lines to block a California rule requiring certain political donors to be disclosed, and it did so despite the fact that Citizens United explicitly held that disclosure laws stand on strong constitutional footing.

There is a very real chance, in other words, that a Supreme Court hostile to campaign finance regulation will join Cruz’s crusade. And if the Court does so, that could effectively make it legal to bribe many members of Congress.

Ted Cruz manufactured a fake dispute in order to bring this lawsuit

Cruz admits that he engineered this lawsuit specifically so he can challenge the restriction on loan repayments.

According to the Justice Department, on the day before the 2018 election, Cruz lent his campaign $260,000, or $10,000 more than the amount that can legally be repaid from post-election funds. Moreover, while a federal regulation permits Cruz’s campaign to pay back all of that money using funds raised before the election, so long as it did so no later than 20 days after the election, the campaign waited until after this deadline had passed to pay back $250,000 of the $260,000 loan.

And, just in case there’s any doubt why Cruz and his campaign entered into this unusual arrangement, Cruz and his campaign do not contest that “the sole and exclusive motivation behind Senator Cruz’ actions in making the 2018 loan and the committee’s actions in waiting to repay them was to establish the factual basis for this challenge.” Cruz was essentially willing to risk $10,000 of his own money for an opportunity to knock down a federal anti-corruption law.

The Justice Department, for what it’s worth, argues that these machinations should doom his suit, citing Supreme Court cases establishing that plaintiffs may not use federal courts to remedy “self-inflicted injuries” — though, as Cruz’s lawyers note in their brief, it is common for civil rights plaintiffs to use similar tactics to engineer lawsuits challenging race discrimination, and the Court has permitted such tactics in the past. So it is far from clear that Cruz is not allowed to bring this suit.

And even if the Court were to dismiss Cruz’s suit, it is likely that some other candidate would make a legitimate loan to their campaign, and then bring a similar lawsuit.

So, in other words, even if the Court decided to avoid the issues presented by this case and to dismiss Cruz’s suit, that decision would only likely delay the inevitable.

The Supreme Court enables corruption by defining the word “corruption” narrowly

The Supreme Court established in Buckley v. Valeo (1976) that lawmakers may enact campaign finance regulations that mitigate “the danger of corruption and the appearance of corruption.” Yet, while Citizens United purported to leave this aspect of Buckley in place, it severely curtailed the government’s ability to fight “corruption” by defining that word very narrowly.

Specifically, Citizens United held that federal and state campaign finance laws may only target “quid pro quo” arrangements, where money is offered in return for “political favors.” After Citizens United, Congress may still ban donors from explicitly promising to write a lawmaker a check if that lawmaker changes their vote on a pending bill. But other forms of corruption are protected by the Supreme Court’s understanding of the Constitution.

Indeed, Justice Kennedy’s opinion in Citizens United framed influence-buying by donors as an affirmative good:

Favoritism and influence are not . . . avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.

If you accept the legitimacy of this reasoning, then Cruz has a strong case. Sure, striking down the restrictions on repaying loans from candidates would allow lobbyists and wealthy donors to put money directly into the pockets of lawmakers. But, under the definition of “corruption” advanced by Citizens United, it’s not entirely clear why lawmakers may not charge lobbyists $1,000 an hour for their time — so long as the lawmakers and the lobbyist do not reach an explicit quid pro quo agreement regarding some policy matter before Congress.

If the Court does want to establish that elected officials may not rely on Citizens United to personally enrich themselves, Ted Cruz for Senate gives the Court a perfect opportunity to do so. The Justice Department argues that the Court should uphold the loan repayment provision challenged by Cruz because it enables personal donations to lawmakers that are different in kind from the ones imagined by the Court’s earlier campaign finance cases.

“When a campaign uses a contribution to fund routine campaign activities, the contribution helps the candidate by marginally improving his chance of victory, but it does not add to the candidate’s personal wealth,” the Justice Department argues in its brief. “But when a campaign uses a contribution to repay the candidate’s loan, every dollar given by the contributor ultimately goes into the candidate’s pocket.”

The Justice Department also cites a list of existing ethical rules, including a congressional rule forbidding members of the House and Senate from accepting gifts of more than $50, which prevents federal officials from using their office to enrich themselves. And it notes that the Constitution itself recognizes the danger of federal officials accepting personal gifts, forbidding them from accepting “any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” (Though, in fairness, the courts didn’t exactly enforce this provision with any kind of rigor when Donald Trump was president.)

Thus far, however, the Roberts Court has shown little inclination to rein in the power of wealthy donors to shape elections — or to spend money in order to maximize their influence over lawmakers. Perhaps the Court will decide in Ted Cruz for Senate that putting money directly into a Congress member’s pocket goes too far.

But, given the Court’s record, I wouldn’t bet on it.

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Brnovich v. Isaacson could trigger a flood of decisions reinstating long-dead anti-abortion laws.

By all outward signs, Roe v. Wade is on its deathbed. In December, the Supreme Court effectively insulated a Texas law that bans abortions after the sixth week of pregnancy from judicial review. Then, at oral arguments in Dobbs v. Jackson Women’s Health Organization, a majority of the justices appeared eager to drastically roll back abortion rights — and perhaps even to overrule Roe explicitly. A decision in Dobbs is expected by late June.

That leaves the right to an abortion in limbo. Technically, decisions like Roe and Planned Parenthood v. Casey (1992), which weakened Roe somewhat but retained core protections for abortion, remain good law. And many state anti-abortion laws are currently blocked by court orders that rely on Roe and Casey.

But those court orders are unlikely to survive the year and could very well all be lifted this summer, in the likely event that Dobbs overrules or drastically curtails Roe and Casey.

Arizona’s Republican Attorney General Mark Brnovich, however, apparently doesn’t have the patience to let this process play out. In early December, Brnovich asked the Court to immediately reinstate an enjoined state law restricting certain abortions. That law would prohibit abortion providers from performing an abortion if the provider knows that “the abortion is sought solely because of a genetic abnormality of the child” — although it does include an exception if the fetus has a condition that will prove fatal within three months of birth.

The case is Brnovich v. Isaacson, and it remains pending before the justices.

Though one conservative appeals court did uphold a similar Ohio law, most courts to consider laws banning abortions if the state disagrees with the reason for the abortion have been blocked by lower courts, and there is a very strong argument that these laws violate Casey. A Supreme Court decision reinstating the Arizona law, in other words, would be another loud signal from the justices that Casey is in its final days.

Just as significantly, if Brnovich succeeds in his bid to reinstate Arizona’s law, he’s likely to open the floodgates to other Republican officials who wish to reinstate other anti-abortion laws.

A decision reinstating the Arizona law would be an announcement that the Supreme Court is open to similar requests to lift existing court orders protecting the right to an abortion. And it would send a clear signal to anti-abortion judges in the lower courts that they are free to start lifting such court orders as well.

According to the Guttmacher Institute, state lawmakers enacted 108 abortion restrictions in 2021 alone. Eight states still retain abortion bans from before 1973, when Roe was handed down, and several others have laws on the books that effectively ban all or most abortions. So, if the courts start allowing these sorts of laws to take effect, the impact on abortion rights could be swift and profound.

Given that a decision in Dobbs is at most months away, the long-term impact of an anti-abortion ruling in Isaacson is likely to be minimal. Once Roe is overruled or gutted completely, the process of unwinding court orders blocking anti-abortion laws will happen anyway. But, at the very least, the Isaacson case could have a profound impact on anyone seeking an abortion in the first half of 2022.

Arizona’s law is unconstitutional under Casey

There are several very strong arguments that the Arizona law is unconstitutional under existing precedents.

First of all, Casey held that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,” where “viability” refers to the moment when a fetus is capable of living outside the womb.

As the United States Court of Appeals for the Seventh Circuit noted in an opinion striking down an Indiana law that is similar to Arizona’s, “Casey’s holding that a woman has the right to terminate her pregnancy prior to viability is categorical.” Casey says that the state may not prohibit “any woman” from terminating a pregnancy prior to viability. That includes people who wish to terminate their pregnancy for reasons that the state disapproves of.

For what it’s worth, the Sixth Circuit, which is the only circuit to uphold an Arizona-style law, rejected the Seventh Circuit’s reasoning on the theory that these kinds of laws do not actually prohibit anyone from getting an abortion. Recall that Arizona’s law only prohibits providers from performing an abortion if they know that their patient is doing so for an impermissible reason. The Sixth Circuit claimed that this requirement that a doctor know their patient’s motive places such laws outside of Casey’s categorical rule because a patient could still obtain an abortion from a doctor who is ignorant of the patient’s motives.

But even if a judge accepts such sophistry, Arizona’s law runs into a second problem. Casey doesn’t just prohibit pre-viability abortion bans, it also prohibits any abortion law that “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” It’s hard to imagine a legitimate purpose — that is, a purpose other than placing obstacles in front of people seeking abortions — to a law that permits abortions, but only if the doctor doesn’t know too much about their patient.

The district court that struck down Arizona’s law also gave a third reason why it is unconstitutional. As the Supreme Court held in United States v. Davis (2019), excessively vague laws may be struck down if they fail to “give ordinary people fair warning about what the law demands of them.” And the district court pointed to several provisions of the Arizona law which, it concluded, do not clear this bar. For example, the law “does not offer workable guidance about which fetal conditions” qualify as a “genetic abnormality.”

A decision reinstating the Arizona law would embolden opponents of abortion

In any event, the fact that the Sixth Circuit disagrees with several of its fellow circuits about whether Arizona-style laws are constitutional is a good reason for the Supreme Court to hear the Isaacson case eventually. The justices often hear cases where two or more federal appeals courts have reached different answers to the same legal question, as the whole purpose of having a single Supreme Court at the apex of the judiciary is to ensure that federal law is uniform throughout the country.

But Isaacson arrives at the Supreme Court on the Court’s “shadow docket,” a mix of emergency motions and other matters that are typically decided on a short timeframe and without full briefing or oral argument. Arizona’s attorney general, in other words, hopes to bypass the ordinary process for seeking review of a lower court decision — a process that typically takes months or longer — and obtain a Supreme Court decision reinstating Arizona’s law as soon as possible.

If Brnovich can step outside the Court’s normal procedures to obtain such an order, other Republican officials will think they can do so as well. And many lower court judges will likely view such an order as a sign that they should start reinstating anti-abortion laws that were previously struck down.

Thus, in practice, the Isaacson decision could wind up accelerating the demise of Roe, triggering a wave of decisions gutting abortion rights months before Dobbs is handed down.

Indeed, there is a precedent, of sorts, for the Supreme Court gradually rolling out a major change in its understanding of the Constitution rather than implementing that change abruptly with one definitive decision.

In the lead-up to Obergefell v. Hodges (2015), the Court’s landmark marriage equality decision, multiple lower courts handed down decisions holding that states could not deny marriage rights to same-sex couples. Rather than block these decisions while the Court pondered whether to make marriage equality the law in all 50 states, the Court allowed these lower court decisions to take effect. The upshot was that, by the time Obergefell was handed down, marriage equality had already come to much of the country due to these unblocked lower court orders.

There are obvious differences between Obergefell and Dobbs — the former was an expansion of individual rights, while Dobbs is likely to end in a significant contraction of such rights — but the lead-up to Obergefell shows that the Court will sometimes implement a new constitutional rule on a piecemeal basis before implementing it nationwide. That process may already be underway as the Court drafts its Dobbs decision.

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What both-sidesing press coverage of a stolen 2024 election might look like.

It’s been a long road, but recent advances mean we’re closing in on a game-changing technology.

Fusion energy is perhaps the longest of long shots. To build a fusion reactor is essentially to create an artificial star. Scientists have been studying the physics of fusion for a century and working to harness the process for decades. Yet almost every time researchers make an advance, the goal posts seem to recede even farther in the distance.

Still, the enormous potential of fusion makes it hard to ignore. It’s a technology that could safely provide an immense and steady torrent of electricity, harnessing abundant fuel made from seawater to ignite the same reaction that powers the sun. It would produce no greenhouse gases and minimal waste compared to conventional energy sources.

With global average temperatures rising and energy demands growing, the quest for fusion is timelier than ever: It could help solve both these problems at the same time. But despite its promise, fusion is often treated as a scientific curiosity rather than a must-try moonshot — an actual, world-changing solution to a massive problem.

The latest episode of Unexplainable, Vox’s podcast about unsolved mysteries in science, asks scientists about their decades-long pursuit of a star in a bottle. They talk about their recent progress and why fusion energy remains such a challenge. And they make the case for not only continuing fusion research, but aggressively expanding and investing in it — even if it won’t light up the power grid anytime soon.

With some of the most powerful machines ever built, scientists are trying to refine delicate, subatomic mechanics to achieve a pivotal milestone: getting more energy out of a fusion reaction than they put in. Researchers say they are closer than ever.

Fusion is way more powerful than any other energy source we have

Nuclear fission is what happens when big atoms like uranium and plutonium split apart and release energy. These reactions powered the very first atomic bombs, and today they power conventional nuclear reactors.

Fusion is even more potent. It’s what happens when the nuclei of small atoms stick together, fusing to create a new element and releasing energy. The most common form is two hydrogen atoms fusing to create helium.

The reason that fusion generates so much energy is that the new element weighs a smidgen less than the sum of its parts. That tiny bit of lost matter is converted into energy according to Albert Einstein’s famous formula, E = mc². “E” stands for energy and “m” stands for mass.

The last part of the formula is “c,” a constant that measures the speed of light — 300,000 kilometers per second, which is then squared. So there’s an enormous multiplier for matter that’s converted into energy, making fusion an extraordinarily powerful reaction.

These basics are well understood, and researchers are confident that it’s possible to harness it in a useful way, but so far, it’s been elusive.

“It’s a weird thing, because we absolutely know that the fundamental theory works. We’ve seen it demonstrated,” said Carolyn Kuranz, a plasma physicist at the University of Michigan. “But trying to do it in a lab has provided us a lot of challenges.”

For a demonstration, one only has to look up at the sun during the day (but not directly, because you’ll hurt your eyes). Even from 93 million miles away, our nearest star generates enough energy to heat up the Earth through the vacuum of space.

Getty Images

But the sun has an advantage that we don’t have here on Earth: It is very, very big. One of the difficulties with fusion is that atomic nuclei — the positively charged cores of atoms — normally repel each other. To overcome that repulsion and spark fusion, you have to get the atoms moving really fast in a confined space, which makes collisions more likely.

A star like the sun, which is about 333,000 times the mass of Earth, generates gravity that accelerates atoms toward its center — heating them up, confining them, and igniting fusion. The fusion reactions then provide the energy to speed up other atomic nuclei and trigger even more fusion reactions.

What makes fusion energy so tricky

Imitating the sun on Earth is a tall order. Humans have been able to trigger fusion, but in ways that are uncontrolled, like in thermonuclear weapons (sometimes called hydrogen bombs). Fusion has also been demonstrated in laboratories, but under conditions that consume far more energy than the reaction produces. The reaction generally requires creating a high-energy state of matter known as plasma, which has quirks and behaviors that scientists are still trying to understand.

To make fusion useful, scientists need to trigger it in a controlled way that yields far more energy than they put in. That energy can then be used to boil water, spin a turbine, or generate electricity. Teams around the world are studying different ways to accomplish this, but the approaches tend to fall into two broad categories.

One involves using magnets to contain the plasma. This is the approach used by ITER, the world’s largest fusion project, currently under construction in southern France.

The other category involves confining the fusion fuel and compressing it in a tiny space with the aid of lasers. This is the approach used by the National Ignition Facility (NIF) at Lawrence Livermore National Laboratory in California.

David Butow/Corbis via Getty Images

Replicating a star requires doing this research at massive scales, so fusion experiments often involve the most powerful scientific instruments ever built. ITER’s central solenoid, for example, can generate a magnetic force strong enough to hoist an aircraft carrier 6 feet out of the water.

Building hardware to withstand these extreme conditions is its own scientific and engineering challenge. Managing such massive experiments has also been a struggle. ITER started with an initial cost estimate of 6.6 billion euros, which has since more than tripled. It began construction in 2007 and its first experiments are set to begin in 2025.

An upside to the intricacy of fusion reactions is that it is almost impossible to cause a runaway reaction or meltdown of the sort that have devastated fission power plants like Chernobyl. If a fusion reactor is disrupted, the reaction rapidly fizzles out. In addition, the main “waste” product of hydrogen fusion is helium, an inert gas. The process can induce some reactor materials to become radioactive, but the radioactivity is much lower, and the quantity of hazardous waste is far smaller, compared to conventional nuclear power plants. So nuclear fusion energy could become one of the safest sources of electricity.

For policymakers, investing in an expensive research project that may not yield fruit for decades, if at all, is a tough sell. Scientific progress doesn’t always keep up with political timelines: A politician who greenlights a fusion project might not even live to see it become a viable energy source — so they certainly won’t be able to brag about their success by the time the next election rolls around.

In the United States, funding for fusion research has been erratic over the years and far below the levels government analysts say is needed to make the technology a reality. The US Department of Energy currently spends about $500 million on fusion per year, compared to almost $1 billion on fossil fuel energy and $2.7 billion on renewables. Investment in fusion seems even tinier next to other major programs like NASA ($23 billion) or the military ($700 billion).

So from its basic physics to government budgets, fusion energy has a lot working against it.

Fusion energy should be treated as a solution, not just an experiment

Working in fusion’s favor, however, are scientists and engineers who think it’s not just possible, but inevitable.

“I’m a true believer. I do think we can solve this problem,” said Troy Carter, a plasma physicist at the University of California Los Angeles. “It will take time, but the real issue is getting the resources brought to bear on these issues.”

Investors are also getting in the game, placing billion-dollar bets on private startup companies developing their own fusion strategies.

The journey toward fusion has yielded benefits for other fields, particularly in plasma physics, which is used extensively in manufacturing semiconductors for electronics. “Plasma processing is one of the things that make your iPhones possible,” said Kathryn McCarthy, a fusion researcher at Oak Ridge National Laboratory.

And despite the hurdles, there have been some real advances. Researchers at NIF reported last summer that they achieved their best results yet — 1.3 megajoules of output from 1.9 megajoules of input — putting them closer than ever to energy-positive fusion. “We’re on the threshold of ignition,” said Tammy Ma, a plasma physicist at NIF.

To break out of its rut, fusion will need to be more than a science experiment. Just as space exploration is more than astronomy, fusion is much more than physics. It should be a leading tool in the fight against the world’s most urgent problems, from climate change to lifting people out of poverty.

Increasing energy access is closely linked to improving health, economic growth, and social stability. Yet close to a billion people still don’t have electricity and many more only have intermittent power, so there is an urgent humanitarian need for more energy.

At the same time, the window for limiting climate change is slamming shut, and electricity and heat production remain the dominant sources of heat-trapping gases in the atmosphere. To meet one of the goals of the Paris climate agreement — limiting warming to less than 1.5 degrees Celsius this century — the world needs to cut greenhouse gas emissions by half or more by 2030, according to the Intergovernmental Panel on Climate Change. Many of the world’s largest greenhouse gas emitters are also aiming to zero out their contributions to climate change by the middle of the century. Making such drastic cuts in emissions means phasing out fossil fuels as quickly as possible and rapidly deploying much cleaner sources of energy.

The technologies of today may not be up to the task of resolving the tension between the need for more energy and the need to reduce carbon dioxide emissions. A problem like climate change is an argument for placing bets on all kinds of far-reaching energy solutions, but fusion may be the technology with the highest upside. And on longer time scales, closer to the 2040s and 2050s, it could be a real solution.

With more investment from governments and the private sector, scientists could speed up their pace of progress and experiment with even more approaches to fusion. In the US, where much of the research is conducted at national laboratories, this would mean convincing your representatives in Congress to get excited about fusion and ultimately to spend more money. Lawmakers can also encourage private companies to get into the game by, for example, pricing carbon dioxide emissions to create incentives for clean energy research.

The key, according to Carter, is to ensure support for fusion remains steady. “Given the level of importance here and the amount of money invested in energy, the current investment in fusion is a drop in the bucket,” Carter said. “You could imagine ramping it up orders of magnitude to get the job done.”

He added that funding for fusion doesn’t have to cannibalize resources from other clean energy technologies, like wind, solar, and nuclear power. “We need to invest across the board,” Carter said.

For now, the big fusion experiments at NIF and ITER will continue inching forward. At NIF, scientists will continue refining their process and steadily work their way up toward energy-positive fusion. ITER is scheduled to begin operation in 2025 and start hydrogen fusion experiments in 2035.

Artificial star power might not illuminate the world for decades, but the foundations have to be laid now through research, development, and deployment. It may very well become humanity’s crowning achievement, more than a century in the making.

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The number of new COVID cases more than tripled over the past two weeks, shattering records all across the U.S. From a report: The Omicron variant appears to be significantly milder than its predecessors, and it's not leading to as much serious illness. But sky-high case counts are still a warning sign, especially in areas whose health care systems are already stretched thin. The U.S. is now averaging nearly 550,000 new cases per day -- a 225% increase over the past two weeks, and by far the highest levels of the entire pandemic. That's likely an undercount, as many people are testing themselves at home. In previous waves, a sharp increase in cases would translate into a similar increase in hospitalizations, and then deaths. Omicron, however, appears to cause severe illness at a much lower rate.

Read more of this story at Slashdot.

As big of an institution it is, you’d think the University of Pennsylvania (UPenn) would take immediate action against someone who has consistently brought shame on their school. For not the first time, a law professor from UPenn has come under fire for sharing her racist and xenophobic ideology. Amy Wax, who formerly made headlines for writing racist editorials and citing Wikipedia as a scholarly source to claim Black students are more likely to fail in law school, has made headlines again—this time for her anti-Asian rhetoric.

“I don’t think I’ve ever seen a Black student graduate in the top quarter of the class, and rarely, rarely, in the top half,” Wax said in a 2017 interview with Loury, according to The Washington Post.

In conversation with Glenn Loury on The Glenn Show, the same venue where she infamously spoke against Black people, Wax claimed that not only was “less Asian immigration” better for the U.S., but also that “fewer Asians” in the country would be great. Meaning she wasn’t only against more Asians coming to the U.S., she also had a problem with those already here. Her reason? She says they’re more likely to vote for Democrats.

In this episode, which aired on Dec. 20, Wax discussed U.S. immigration and shared her ideology that immigrants do not share the same values of the Western world and are thus a threat—an idea she also shared in a recent speech.

“But as long as most Asians support Democrats and help to advance their positions, I think the United States is better off with fewer Asians and less Asian immigration. There needs to be more focus on people who are already here, and especially the core (and neglected) ‘legacy’ population, and a push to return to traditional concepts and institutions and Charles Murray’s ‘American Creed.’”

She continued:

“I confess I find Asian support for these policies mystifying, as I fail to see how they are in Asians’ interest. We can speculate (and, yes, generalize) about Asians’ desire to please the elite, single-minded focus on self-advancement, conformity and obsequiousness, lack of deep post-Enlightenment conviction, timidity toward centralized authority (however unreasoned), indifference to liberty, lack of thoughtful and audacious individualism, and excessive tolerance for bossy, mindless social engineering, etc.”

Additionally, she claimed that the U.S. should also be concerned about how both South Asians and other members of the AAPI community impact American culture.

“It’s just harder to assimilate those people or to have confidence that our way of life will continue if we bring a lot of people in who are not familiar with it. These are not original ideas on the [political] right,” Wax told Loury. “This might result in a shift in the racial profile of people who come in. Obviously, we’ll have fewer people from Africa. We’ll have fewer people of some parts of Asia, and it’ll be more white—not that many white people want to come to the United States.”

“[We] have to distinguish mass-immigration, which we’re getting from the Hispanics, south of the border, which I think poses different questions and challenges from the Asian elites that we’re getting,” she said. “It doesn’t mean that the influx of Asian elites is unproblematic. I actually think it’s problematic. …I think it’s because there’s this…danger of the dominance of an Asian elite in this country, and what does that mean? What is that going to mean to change the culture?

But her rant didn’t end there. She even targeted immigrants who stand up and speak against racism in America, piggybacking on the racist ideology that if you don’t like what’s happening in the country you should leave.

Her comments come as no surprise as she has consistently made comments against POC individuals and voiced her views on the country’s need to favor white over non-white people in the immigration system. But this time they went viral because even Loury’s audience had an issue with them.

"Let us be candid: Europe and the First World, to which the United States belongs, remains mostly white for now. And the Third World, although mixed, contains a lot of non-white people," she said at the inaugural National Conservatism conference 2019, according to Vox. "Embracing cultural distance nationalism means in effect taking the position that our country will be better off with more whites and fewer non-whites."

Not to mention, she has gotten away with such comments for numerous years— despite facing backlash. What’s different this time is that both students and faculty alike are calling for Wax to face consequences. 

Due to Wax’s comments, Penn Law School Dean Theodore Ruger not only issued a statement but reminded individuals that the professor was no longer allowed to teach required courses but only instruct electives at the school.

In his statement issued on Monday Ruger called Wax’s comments “anti-intellectual,” “racist,” and “white supremacist.”

"Like all racist generalizations, Wax's recent comments inflict harm by perpetuating stereotypes and placing differential burdens on Asian students, faculty, and staff to carry the weight of this vitriol and bias," he said.

"As we have previously emphasized, Wax's views are diametrically opposed to the policies and ethos of this institution," Ruger added. "They serve as a persistent and tangible reminder that racism, sexism, and xenophobia are not theoretical abstractions but are real and insidious beliefs in this country and in our building. This reality sharpens and deepens our commitment to support our community as we continue to work to advance equity and inclusion."

IMHO she should be completely removed from the university especially given the depth of her comments and the university’s claim that they are opposing their values. I mean this isn’t the first time the dean had to acknowledge her commentary and the harm it causes. After her comments on Black students, he had to issue a statement then as well denouncing the false claims of their lack of success. That is also when she was banned from teaching core classes at the university— despite this, her commentary continues so clearly it has no impact on her. 

According to ABC News, students have expressed anxiety and worry on campus after hearing her comments.

Outside of the school social media backlash has also been strong. Even Donald Trump’s niece Mary Trump chimed in.“It helps explain the situation this country finds itself in that an Ivy League university allows the morally and intellectually bankrupt racist #AmyWax teach the next generation of American lawyers. There should be consequences for this kind of hateful rhetoric @pennlaw,” she tweeted.

I understand tenure is in place, but something more substantial should be done. Any ideas on how Penn Law can handle this? Clearly, they are ill-equipped, as Wax continues to spread her hateful rhetoric online and on TV. 

Click here to see the petition students have crafted in efforts to impact Wax’s tenure status.

If Republicans take back the House, the temptation to impeach Biden — over, well, whatever — will be irresistible.

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Just imagine if Fox News hosts were actually capable of news analysis that went beyond feeding into racist stereotypes. Well, The Daily Show, Comedy Central’s satirical news program, had some fun with just that scenario leading up to the one-year anniversary of the attack on the U.S. Capitol on Jan. 6, 2021. The show, hosted by comedian Trevor Noah, spliced together video footage of the rioters with sound bites from a few of the conservative network’s famed talking heads. So, instead of condemning Black Lives Matter activists as the Fox News hosts intended, the edited video made it look like the hosts were criticizing actual terrorists. 

Imagine phrases like “mob-like behavior” and violence that is “unacceptable in this country” applying to white people storming the Capitol.

At one point, host Tucker Carlson said: “It’s not a protest. These aren’t children. These are adults, and they’re destroying our country.” Carlson was speaking about a group of about 30 protesters outside the Portland, Oregon, home of Chad Wolf, former U.S. Secretary of Homeland Security; the network claims the group terrorized Wolf and his family. In reality, they were rallying in support of the Black Lives Matter movement, and those in Oregon had been protesting every day to demand justice after a Minneapolis police officer kneeled on George Floyd’s neck for more than nine minutes, causing the Black father’s death outside of a convenience store on May 25, 2020.

Missouri state Rep. Brian Seitz has one clear priority for the 2022 legislative session: “Shut down” critical race theory in his state. He intends to do that by passing a bill that would forbid public school teachers from discussing critical race theory, an examination of how race and racism permeates American society.

In South Carolina, a bill lawmakers may consider in coming months would require K-12 public schools to post online detailed lists of instruction materials and curriculum. Another bill would go a step further by banning any state-funded entity like colleges, private contractors and nonprofit organizations from promoting “certain discriminatory concepts.”

And in Florida, Republican Gov. Ron DeSantis is urging the GOP-led state Legislature to pass a measure that would allow parents to sue school districts that teach lessons rooted in critical race theory.

Attacking the study of racism in the United States emerged as a leading culture war cause for Republicans in 2021. But state lawmakers have only just begun focusing on the issue, which promises to dominate red-state legislatures across the country this year.

Legislators in at least a dozen Republican-controlled statehouses — including in Alabama, Kentucky, North Carolina and Ohio — plan to push dozens of bills in upcoming legislative sessions that aim to halt teachings about race and society and give parents more say in what’s discussed in classrooms.

There’s a clear power incentive: Republicans are amped up by the party’s November election sweep in Virginia, where education was a top issue, and intend to campaign on such bills leading up to the midterms.

“There is a huge red wave coming,” Seitz, a pastor and business owner, said in an interview. “Virginia is just a microcosm of the rest of the United States.”

Critical race theory is an analytical framework originally developed by legal scholars examining how race and racism have become ingrained in American law and institutions since slavery and Jim Crow. Many conservatives began using critical race theory as shorthand for a broader critique of how race and social issues are being taught in the K-12 education system.

Their criticism centers on the belief that white students are being told that they are oppressors because of their race. In turn, history lessons about the the founding of the nation that adopt some of the tenets of critical race theory promote discrimination against white students and depict students of color as victims, they argue.

Yet most public school officials across the country say they do not teach any curriculum based on the theory, even in districts and states where lawmakers are seeking to ban the practice. Some Democrats and other critics say the anti-critical race theory push is motivated by a deep fear among white conservatives about changing racial awareness in the U.S. and an unwillingness to grapple with how the legacy of slavery manifests today.

A major question is what sort of long-term impact these bills will have — whether they will end up being mostly symbolic acts to energize GOP campaigns or actually permanently transform what millions of students are taught.

Academics are concerned about the “chilling effect” these bills will have on teachers as Republican lawmakers “race to outdo each other to pass the most extreme legislation,” said Jeffrey Sachs, a professor at Acadia University who has been tracking these bills. He’s worried about teachers already making changes to courses and readings to avoid potential backlash from parents and in advance of any legislation being enacted.

Sachs said he believes people are “not taking the scale of this threat seriously” and it’s a mistake to dismiss parents’ concerns by denying that teachers are not changing the ways they teach about the persistence of systemic racism in the U.S. He pointed to former Virginia Gov. Terry McCauliffe’s comments during the 2021 gubernatorial race as the wrong approach. McAuliffe said that outrage over the theory is a “made up, racist dog whistle” that has never been taught in Virginia schools.

“One better response is to highlight how dangerous and extreme some of these bills are and the terrible consequences when teachers operate in a climate of fear,” he said.

Much of the action in statehouses last year focused on banning the teaching of certain “divisive” concepts in classrooms. The conservative vitriol was directed at the “1619 Project,” a major New York Times feature about the roots of American slavery that’s a popular target of the right and has drawn some questions from historians.

An Oklahoma law enacted last year, which has served as the template for other states, bans teaching that anyone is “inherently racist, sexist or oppressive, whether consciously or unconsciously,” or that they should feel “discomfort, guilt, anguish or any other form of psychological distress” because of their race or sex.

Going forward, the legislative push will extend to not just seeking bans on certain teachings but to giving parents greater oversight of K-12 curriculum, politicize school board races and reject books that critics deem too controversial for young children to be exposed to.

And in some places, legislators also want to focus on public colleges and universities. A Wisconsin bill, for example, would ban employees from being required to attend trainings “promoting race or sex stereotyping.” Similar bills are pending in Alabama, Florida, Iowa and Kentucky.

Momentum for the legislative movement spun out from conservative think tanks like the Heritage Foundation, American Enterprise Institute and Goldwater Institute. Some groups have written sample legislative texts for state lawmakers, such as the Center for Renewing America, a right-leaning nonprofit created by Russell Vought, director of the Office of Management and Budget under former President Donald Trump.

The issue gained traction after several forces collided: Frustration among many parents over school closures during the pandemic and conservative backlash to the Black Lives Matter movement. With millions of students learning virtually from home, parents got a better glimpse inside classrooms — and some were unhappy with what they saw.

Tennessee was one of the first states last year to enact legislation of this kind, and the state’s Education Commission recently signed off on guidance that boosted the financial penalties against large school districts that violate the new state law.

It remains to be seen how many complaints the state will receive about alleged violations, but the board in November rejected the first one: an allegation from right-wing group Moms for Liberty that a literacy curriculum used by at least 30 school districts has a “heavily biased agenda” that makes children “hate their country, each other and/or themselves.”

The group’s specific concerns were about four books on subjects like the Rev. Martin Luther King Jr.’s March on Washington and Ruby Bridges, among the first Black children to desegregate all-white schools in New Orleans.

Rashawn Ray, a senior fellow at the Brookings Institution, said that this movement can be explained by some parents wanting to keep their children from learning uncomfortable truths about U.S. history, information that may then inspire students to push for racial equity by dismantling certain systems.

“Those are economic, social and cultural privileges that people who embody those white supremacist views don't want to give up,” Ray said.

“We have hit an ideological civil war that has spilled over into the classrooms for our kids,” he said. “It’s the fight for the democratic future of America that’s going to control future elections.”

In Texas, county commissioners threatened to withhold federal CARES Act funding from two school districts over concerns about “inappropriate” books in school libraries. The funds were eventually released, but with the stipulation that the schools conduct a review of certain books. Those districts had already yanked 11 books after a yearlong review spurred by parents.

“It should be within the reach of a parent to say, ‘yes, I want to know not only what textbooks are being used, but I want to know what the topics are and I want to know what you are teaching my child,’” said Jonathan Butcher, an education expert at the Heritage Foundation. “Especially when it comes to the roots of American democracy and how we’re talking about racial issues.”

Proposed legislation in South Carolina expected to be considered on the House floor is partly the result of several parent groups formed last year that investigated course materials and found books in libraries they thought weren’t appropriate for some kids.

The bill, which explicitly bans teaching of the 1619 Project, would mandate that schools post instructional lists like books, papers and articles — and provide a means for parents to contact schools. It would also forbid school employees from being required to attend diversity training and prohibit teaching of certain “tenets” like “that any sex, race, ethnicity, religion, color, or national origin is inherently superior or inferior.” State funds may be withheld from schools in violation.

“Parents have been awakened all over the country,” said state Rep. Bill Taylor, the bill’s sponsor.

“The tendency of school districts and schools is to talk about parent involvement, but they’re not too thrilled when they get it — it’s sort of the attitude of ‘we know best,’” he said. “That attitude has to be broken down.”

For reasons architecturally unbeknownst to me, the McMansions of Chicago’s suburbs are actually insane. Perhaps it makes sense that Chicago, America’s mecca of great and distinguished architecture would also give birth to what can be appropriately called the netherworld version of that.

For six years, I have run this blog, and for six years I have been absolutely amazed by the formal leaps and bounds exhibited by the McMansions of Chicago’s suburbs. This area is undisputedly the fertile crescent of unhinged custom homebuilding and while I’ve heard other claims made for the gaudy, compact McMansions of Long Island, the paunchy shingled stylings of Greenwich, Connecticut, the Disney-Mediterranean hodgepodges of Florida, the oil-drenched nub mountains of North Texas, you name it – nothing comes remotely close to that which has been built in the suburbs of Cook, Lake, and DuPage Counties. (In the case of the houses featured in this post, nine of ten are located in Barrington, IL, which just might be the census designated place known as McMansion Hell.)

Usually vernacular architecture has some kind of origin point, a builder or a style or a developer one can point to and say, aha, that’s where that comes from. One could argue that the postmodern classicism of a Robert AM Stern or the tory Colonial Revival selections found in the Toll Brothers catalog provided this service for much of the McMansion canon.

However, the McMansions in the Chicago Suburbs are so wildly customized and unique, it is as though each of the ten listed here were in competition with one another to build the most outrageous collage of wealth signifiers imaginable, to the point where their architecture becomes almost un-house-like. The responsibility for their form, owing to the absence of architects, lies solely with the owners and the custom builders who did their unquestioned bidding, who plucked each turret and mismatched window from the catalog after being told, give me that. These homes are the end logic of the “custom home” of the pre-2008 era where nouveau riche (and sometimes old money) fantasies were dropped on whatever massive virgin lot one could afford to hook up plumbing to.

There are two Barrington subtypes I’ve been able to identify that, while not unique to the area, seem to be the only kinds of formal logic uniting many examples. The first I’ll call the Long House, which is just what it sounds like: a once rational house that’s been stretched to comical length-wise proportions:

Theoretically the above house makes sense to the eye. The turrets divide it into a kind of five part vertical rhythm. But the more you stare, the less sense it makes. Why is there a window between the third and fourth turret but no other? Why are there two whole other wings jutting out from the house in two other directions? Were the house not one color, the eye would get lost immediately, and the scale is such that the realtor had to zoom all the way out with a drone just to capture the whole thing in one frame. Besides, what style even is this imitating? French Country? Great Recession-core? (The same could be asked of all of these houses which, owing to their bloated-ness defy and elude even the most half-assed stylistic or historical cosplay.)

In case you were wondering, the turret exists so as to roof a curved secondary mass. A horrible question to ask ourselves is: when a turret is not used, how does one attach the curved mass to the roof? The answer is whatever is going on in the above example. I’m sorry you all have to see this.

The Long House is perhaps best demonstrated in the above particular model, which appears as though it’s not actually real but rather a mid-range SketchUp render. This house actually reminds me of many examples I’ve seen in Bergen County, New Jersey. The first three masses form a logical tripartite facade. The two that are tacked on after that undermine the rest and render it almost comical. Also they’re slightly different from one another. Of course.

The other of the two subtypes is what I call the Tank House. (One also finds turrets on a tank.) The Tank House is, well, shaped kind of like a tank: hulking, with a central protruding mass around which everything else is oriented, often at a strange oblique angle:

Building a house at an oblique angle is kind of an interesting architectural decision especially on a corner lot, but none of these are corner lots - they are large swaths of what was probably farmland unhindered by size constraints. A carport is rather like the firing arm of our tank house, protruding outward and demonstrating a kind of military might:

Often in the Tank House, additional masses are just kind of piled on to the sides because it’s actually kind of inconvenient to design a really big house on a 45 degree angle:

This results in these houses taking on a kind of kaleidoscope effect where they tesselate, spread and converge as the eye tries to assimilate them into something with symmetry, even though the design consistency falls apart at the edges.

And then there’s whatever this is:

Yeah. Sometimes postmodernism wasn’t all fun colors and ironic greek order references. Unfortunately.

However, the Tank House doesn’t always have to involve an oblique angle. What’s unique - other than the oversized central portico - is actually the piling on of the massing into mismatched wings:

Like I said above, architecture, especially “traditional” architecture longs for symmetry, and these houses simply do not have it. They always manage to screw up, shoving some house over there, some roof to that side, as though they’ve started with a central idea and were unable to commit, rather like this post in which I’m wandering around really, really trying to understand why these houses are so damn bizarre.

In the last two examples, you’ll see a central hall punctuated by grand entrance of some kind. But in both cases the symmetry is broken by adding another mass to the right simply because the garage calls for it. It shows a remarkable lack of architectural faculty and imagination to let a garage derail the entire formal logic of the house. It’s lazy. However, the garage is a status symbol in and of itself – perhaps the disruption, the madness, is the point. (In architecture, as in all things, one must remember not to ascribe to malice that which can be easily explained by incompetence.)

This brings us to the last of our examples, which I consider to be among the greatest McMansions to ever exist:

This house took sprawl as its very inspiration, its DNA, its parti. It exists simply to say how much of it there is. It lays on a barren sea of turf grass, is constructed entirely from fossil-fuel based materials, is illuminated by a spurious sky added in post. Everything about it is the pinnacle of artifice, the absence of substance. Even color eludes it - it has traded color for “tone,” for a monochromatic neutrality that even better conveys just how huge and stupid it is. I hate this house, but I also love it, because it pushes the boundary of the medium like all memorable works of architecture do. That’s the thing – despite six years of running this website, every time I think I’ve seen it all, I come back to Barrington, Illinois and find something even my headiest subprime fever dreams couldn’t possibly cook up.

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