James.galbraith

The rule of law is collapsing in real time. Near the end of another Oval Office grievance session, Donald Trump said it perhaps isn't enough that he had Lt. Col. Alexander Vindman escorted from from his White House national security position, along with his twin brother, in direct retaliation for Vindman's testimony accurately describing what he knew of Trump's efforts to extort the Ukrainian government into providing or manufacturing anti-Biden "dirt."

"It turned out what he reported [of the Trump-Zelensky call] was very different. [...] And so we sent him on his way to a much different location and the military can handle him any way they want. General Milley has him now, [...] he can have him, and his brother also. So we'll find out what happened, we'll find out. But he reported very inaccurate things."

Trump was then asked directly by a reporter whether he was signaling, in his claims of Vindman's alleged wrongdoing, that Vindman should face "disciplinary action."

"That's going to be up to the military. We'll have to see. But if you look at what happened, they’re going to certainly, I would imagine, take a look at that. [...] What he did was reported a false call. You look at what he said."

Trump also claimed that he did not speak to the Justice Department about reducing political ally Roger Stone's sentencing recommendation, as Trump publicly demanded in a late-night tweet. But he claimed an "absolute right" to do so when he wishes.

Asked about Roger Stone, Trump says he has an �absolute right� to tell the Justice Department what to do pic.twitter.com/AZRv9Aff7P

— Aaron Rupar (@atrupar) February 11, 2020

The latest move involving Trump confidant Roger Stone raises serious questions.

Former New York City Mayor Mike Bloomberg ahead of a January 2020 address in Washington, DC. | Tom Williams/CQ-Roll Call Inc./Getty Images

Mike Bloomberg is being asked to account for his past defenses of stop-and-frisk.

As former New York City Mayor Mike Bloomberg rises in the polls — he’s now fourth in national polling averages — he is also facing renewed criticism over his record with minority communities, even fielding tweets about it from President Donald Trump on Tuesday.

Bloomberg has faced questions over his mayoral policies that affected New York’s nonwhite population before, but after progressive podcaster Benjamin Dixon recirculated Bloomberg’s 2015 speech at the Aspen Institute defending his city’s controversial stop-and-frisk policy on Tuesday, those questions are once again in the national conversation.

“Ninety-five percent of your murders — murderers and murder victims — fit one M.O. You can just take the description, Xerox it and pass it out to all the cops. They are male, minorities, 16 to 25. That’s true in New York, that’s true in virtually every city,” Bloomberg said in the video clip.

“We put all the cops in minority neighborhoods,” Bloomberg said. “Yes. That’s true. Why do we do it? Because that’s where all the crime is. And the way you get the guns out of the kids’ hands is to throw them up against the walls and frisk them.”

A number of other Twitter users began to attack Bloomberg with the hashtag #BloombergIsRacist, which Dixon included in his initial tweet and which trended for much of Tuesday.

The furor led others on Twitter to bring to the fore more criticisms of Bloomberg, like that he has supported Republicans in the past. It also led to the resurfacing of other comments he has made around policing and people of color, like one from a 2013 episode of Bloomberg’s then-weekly radio program on WOR-AM, in which he cited statistics on the ethnicities of murders and murder victims and said, “I think we disproportionately stop whites too much, and minorities too little.”

Trump, who has a long record of racist remarks — including a 2017 speech in which he said he didn’t want police to be “too nice” to “thugs” — piled on as well. “Wow, Bloomberg is a total racist!” he tweeted.

He deleted that tweet but kept a reply to another tweet that attempted to link him to Bloomberg that was critical of the former mayor’s golf game, calling Bloomberg “a short ball (very) hitter.”

Stop-and-frisk and Bloomberg’s record

Bloomberg did not institute the stop-and-frisk program in New York City but inherited it from his predecessor, Rudy Giuliani. The initiative was implemented on the grounds that it would reduce crime through random searches of New York City residents. This theory turned out to be suspect, but the policy’s effects were clear in another way. New York Police Department data clearly showed that most of the people being stopped and frisked were black or Latinx even though police found weapons and contraband on white residents more, as Vox’s German Lopez explained.

As Matthew Cella and Alan Neuhauser noted for US News and World Report in 2016, FBI data shows populations of color were more affected by homicide than white populations in 2015:

Of the 13,455 cases from last year in which the FBI listed a victim’s racial information, 7,039 victims – or 52.3 percent – were black. That compares with 5,854 cases – or 43.5 percent – in which the victim was white, an increase of about 8 percent from last year.

But it is important, as Emily Widra noted for the Prison Policy Initiative, to keep in mind that the black population is lower than the white population, so that rate means a black American is more likely to be murdered than a white one. The Centers for Disease Control and Prevention found that the homicide rate for black Americans in 2015 was 20.9 per 100,000 people, while the rate for white Americans was 2.6 per 100,000 people.

This would seem to prove the points Bloomberg made in 2015, but looking only at these numbers ignores a broader cultural context. The problem with the former mayor’s statements is that broadly painting young nonwhite men as the most likely perpetrators of violence not only perpetuates ugly and racist stereotypes and needlessly vilifies millions of people — it also does nothing to bring down murder rates.

After a court ruled stop-and-frisk unconstitutional in 2013, the effectiveness of the program was further called into question due to the fact that even without it, crime continued to decrease, reaching historic lows. Nevertheless, Bloomberg defended it both as mayor and, as Dixon showed, after he left office in 2013. Recently, however, he has begun to apologize for this past stance.

Bloomberg’s support for stop-and-frisk has been a problem for him before. In December, in an interview Bloomberg did with CBS’s Gayle King, he falsely claimed, “Nobody asked me about it until I started running for president, so, c’mon.”

Many observers were quick to refute that claim, including former CNN anchor Soledad O’Brien, who tweeted that the former mayor defended the policy at a 2014 cocktail party by arguing “that MORE black and brown people should have been stopped.”

Nevertheless, Bloomberg is running for the Democratic nomination, and he seems to recognize support for the policy could be a problem for him.

“I can’t change history,” Bloomberg said last November. “However today, I want you to know that I realize back then I was wrong.”

Bloomberg is campaigning against Trump

Bloomberg worked to place the focus back on Trump on Tuesday, saying in a statement, “President Trump’s deleted tweet is the latest example of his endless efforts to divide Americans.”

He also argued that stop-and-frisk wasn’t his idea but was begun by Mayor Rudy Giuliani’s administration, that he did his best to curb it, and that while he may have once defended the practice, he has come to see the error of his ways: “I have apologized — and I have taken responsibility for taking too long to understand the impact it had on Black and Latino communities ... this issue and my comments about it do not reflect my commitment to criminal justice reform and racial equity.”

Bloomberg may indeed be sorry, but the fact that he didn’t offer that apology until he decided he wanted to run for president incenses his critics. And it still is not exactly clear where he stands on the issue of stop-and-frisk. As Zeeshan Aleem has noted for Vox, Bloomberg has “unapologetically defended the program as recently as January as an effective deterrent against crime,” a defense that came two months after his November apology.

Such defenses discount the fact that the NYPD’s stop-and-frisk tactics were found to be unconstitutional in 2013, and that falling crime rates after the program’s cancellation suggest it had no effect on crime.

And, of course, Bloomberg’s 2015 claims aren’t exactly true, particularly his claim that all of New York’s crime was in majority-minority neighborhoods.

It is true the boroughs with greater populations of color — the Bronx and Brooklyn — had the most murders in 2015. However, these are also two of the most populous boroughs (with Brooklyn being the most populous in 2015), and Manhattan led the city in other crimes that year, like larceny. And it wasn’t like the city was some lawless murder capital that year — the New York Police Department recorded 352 murder and cases of non-negligent manslaughter that year in a city that, at the time, contained 8.5 million people.

As Bloomberg’s national profile grows — he’s already spent more than $300 million on advertising — and as he works to try to win big on Super Tuesday, his record is likely to face continued scrutiny.

That analysis will likely raise new questions about the former mayor’s views on race and religion, from an old joke about conducting New York-Native American relations by shotgun to his past defenses of sweeping surveillance of New York’s Muslim population. It could also lead to further investigation into allegations that Bloomberg has mistreated a number of women — as well as what a number of nondisclosure statements former female employees have signed occlude.

Certainly, these sorts of issues are not necessarily barriers to the Oval Office — Trump, having faced similar allegations of racism and sexism, is president. But it remains to be seen whether Democratic voters — a number of whom have been critical of Trump on these issues — will put forward a nominee with Bloomberg’s record.

This cannot go on. Three top prosecutors (which may turn into four) in the Roger Stone case have now withdrawn after Attorney General William Barr's Department of Justice ordered them to revise their guideline-based recommendations on Stone's sentencing. This happened the morning after Donald Trump tweeted that he "cannot allow" the prosecutors' recommended sentencing of Stone, an ally and key stonewaller in the Robert Mueller investigation of the Trump campaign's ties to Russian government hacking in the 2016 elections.

It is time to haul Barr to the House to explain himself. Immediately. If he refuses a subpoena, then inherent contempt must be used to force his compliance. The House has broad but almost-never-used powers to compel such testimony: This is precisely the dire occasion they were designed for.

The resignation of three top names from Stone's case signals clearly that the federal prosecutors involved believe Barr has acted with corrupt intent in reaching down to order a reduced sentencing ask. They, too, should be subpoenaed immediately so that they may describe the situation that led to their self-removal. This is an extraordinary situation: Even if a teetering-toward-fascism Republican Party will not so much as pretend at "concern" for Trump and Barr's move, the House can expose it without their assistance.

It must be done. The Department of Justice has within the span of days been turned formally into a tool for "processing" allegations against Trump's political opponents and, now, overriding the sentencing of Trump's criminal allies. Barr will resist, but it must be done regardless.

Sen. Chuck Schumer is calling for the inspector general at the Department of Justice to “open an investigation immediately.” That internal review, however, would be obviously insufficient. Rep. Adam Schiff, chair of the House Intelligence Committee and lead House manager in Trump's Senate-stifled impeachment trial, sent out an initial statement calling the reported Barr-Trump intervention a "blatant abuse of power" and, coupled with Trump's retaliatory firings, "the gravest threat to the rule of law in America in a generation." But it does not yet threaten subpoenas.

Schiff is correct in his diagnosis—and now the House must once again act. It is not optional; it cannot be danced around. Barr has committed an act of corruption so blatant that prosecutors have resigned rather than carry it out; he must explain himself under oath.

The chief prosecutor in the trial of longtime Trump confidant Roger Stone withdrew from the case Tuesday following news that the Justice Department planned to revise the sentencing recommendations for Stone down from the 7-9 years that had originally been recommended. 

Assistant U.S. Attorney Aaron Zelinsky argued in court last fall that Stone had “lied to the House Intelligence Committee because the truth looked bad for the Trump campaign and the truth looked bad for Donald Trump.” On Monday, Zelinsky and his fellow prosecutors, Jonathan Kravis, Michael J. Marando, and Adam C. Jed, advised the court that a sentence of 87 to 108 months, “consistent with the applicable advisory Guidelines would accurately reflect the seriousness of his crimes and promote respect for the law.”

Tuesday morning, however, a Justice Department spokesperson said that sentencing recommendation was too “extreme” and would be revised it downward mere hours after Donald Trump threatened to pardon Stone altogether.

This story is still developing. Former federal prosecutors are reportedly aghast at the department’s reversal on Stone’s sentencing. A copy of Zelensky’s notice of withdrawal from the case is below.

Tuesday, Feb 11, 2020 · 9:05:54 PM +00:00 · Kerry Eleveld

UPDATE: Another prosecutor on the Stone case resigns. Jonathan Kravis "has resigned as an Assistant United States Attorney and therefore no longer represents the government in this case."

Wow, Mueller prosecutor Zelinsky withdraws from the Stone case AND includes this footnote(!): "The Court is advised that the undersigned attorney has resigned effective immediately after this filing as a Special Assistant United States Attorney for District of Columbia" pic.twitter.com/TrNSo9qXeB

— Jeremy Herb (@jeremyherb) February 11, 2020

Democratic presidential candidate Mike Bloomberg was swiftly condemned Tuesday after a years-old audio clip surfaced in which he appears to discuss in starkly racial terms the “stop-and-frisk” policing practice he presided over as mayor of New York City.

The scratchy recording was disseminated overnight across social media, provoking a new wave of online criticism against the billionaire businessman’s self-funded White House campaign just as it has begun to earn broader support in public polling.

“Ninety-five percent of your murders — murderers and murder victims — fit one M.O. You can just take the description, Xerox it and pass it out to all the cops,” Bloomberg can be heard saying in the clip.

“They are male minorities, 16 to 25. That’s true in New York. That’s true in virtually every city,” the clip continues. “And that’s where the real crime is. You’ve got to get the guns out of the hands of the people that are getting killed.”

The clip seems to have originated from Bloomberg’s speech at an Aspen Institute event in February 2015. Later that month, The Aspen Times reported that Bloomberg’s representatives had asked the Aspen Institute not to distribute footage of his appearance. A Bloomberg campaign aide did not respond to questions about whether the video would be released.

President Donald Trump quickly pounced on Bloomberg as the clip spread across Twitter on Tuesday morning, writing online: “WOW, BLOOMBERG IS A TOTAL RACIST!”

Trump, who had previously called for “stop-and-frisk” to be instituted nationwide while campaigning for president in 2016, later deleted his tweet, issuing another message mocking Bloomberg’s height and golf game.

The campaign manager and communications director for the president’s reelection effort both promoted Bloomberg’s comments from the clip in their own posts to Twitter.

In a statement, Bloomberg said that Trump’s deleted tweet “is the latest example of his endless efforts to divide Americans,” and acknowledged that “stop-and-frisk” was “overused” in New York.

“By the time I left office, I cut it back by 95%, but I should’ve done it faster and sooner. I regret that and I have apologized — and I have taken responsibility for taking too long to understand the impact it had on Black and Latino communities,” Bloomberg said.

“But this issue and my comments about it do not reflect my commitment to criminal justice reform and racial equity,” he added.

In a follow-up statement, Bloomberg’s campaign said he began a pre-scheduled meeting with 20-plus black faith leaders at his headquarters shortly after the president’s tweet posted.

“He expressed regret over his past insensitivity regarding policies like stop and frisk and showed a continued interest in restorative justice,” the leaders said in a joint statement. “To be clear: None of us believe that Mike Bloomberg is a racist. Actions speak louder than words, and Mike has a long record of fighting for equality, civil rights, and criminal justice reform.”

Just a week before launching his presidential campaign in November, Bloomberg apologized at an African American church in Brooklyn for overseeing the implementation of “stop-and-frisk” and defending the New York Police Department’s use of the law enforcement tactic — which disproportionately affected black and Latino men and has been widely denounced by critics as a civil rights violation.

“You want to spend the money on a lot of cops in the streets. Put those cops where the crime is, which means in minority neighborhoods,” Bloomberg appears to say in the recording, describing the controversial policy.

“So, [inaudible] unintended consequences is people say, ‘Oh, my God, you are arresting kids for marijuana that are all minorities.’ Yes, that’s true. Why? Because we put all the cops in the minority neighborhoods. Yes, that’s true. Why do we do it? Because that’s where all the crime is,” the clip continues.

“And the way you get the guns out of the kids’ hands is to throw them up against the wall and frisk them. [Inaudible] and then they start, they say, [inaudible] ‘Oh, I don’t want to get caught.’ So they don't bring the gun. They still have a gun, but they leave it at home.”

Bloomberg’s Democratic rivals mostly dodged questions regarding the clip Tuesday, declining to engage with the controversy as they campaigned in New Hampshire on the day of the first-in-the-nation primary.

Former Vice President Joe Biden, who told reporters he was retreating from the state to travel to South Carolina and then Nevada, suggested he would reference “stop-and-frisk” during the primary debate next week in Las Vegas, but otherwise stayed quiet.

Joe Biden leaves New Hampshire for South Carolina

“We’re going to debate him there. And so I’m anxious to talk about it,” he said.

Minnesota Sen. Amy Klobuchar also chose not to weigh in when asked about the clip during an interview on MSNBC, saying of Bloomberg: “I’m not going to focus on him. I’m going to focus on me.”

Billionaire activist Tom Steyer challenged Bloomberg most directly, calling his statements “extremely disturbing,” according to the Associated Press.

“The racist stereotypes he uses have no place today, and anyone running for the presidential nomination should disavow them,” he said.

Bloomberg’s remarks began circulating Monday night on the eve of voting in New Hampshire, one of the four early nominating states the former New York mayor has opted to skip.

Instead, he has focused on amassing delegates in the more-than-a-dozen primaries taking place in March on Super Tuesday, spending hundreds of millions of dollars on a historic television advertising blitz and a massive nationwide organization.

The investment has shown signs of paying off in recent weeks, as Bloomberg rose to third place among the field nationally in a Quinnipiac University poll published on Monday. He achieved the support of 15 percent of Democratic voters, behind only Vermont Sen. Bernie Sanders with 25 percent and Biden with 17 percent.

Bloomberg also garnered the second-most support from black Democrats in the survey, with 22 percent to Biden’s 27 percent.

Sally Goldenberg and Nolan D. McCaskill contributed to this report.

Conservative activists waged a successful campaign against the Equal Rights Amendment decades ago by warning it would force women into combat, legalize gay marriage and erode gender roles.

But in 2020, opponents are zeroing in on one line of attack: a claim that ERA would require taxpayer-funded abortions.

The House will vote later this week on a bill that would remove the deadline for ratifying the ERA, which permanently bans discrimination on the basis of sex. The Constitutional amendment, adopted by Congress in 1972, resurfaced last month after Virginia became the last state needed to clear the 38-legislature threshold. A group of conservative states, backed by the DOJ, contend the ERA failed to meet the ratification deadline decades ago and Congress has no legal authority to amend it; Democratic attorneys, on the other hand, argue the Constitution doesn’t give Congress the power to set any ratification deadline, so the ERA should be considered enacted now.

Though the bill is expected to pass the House, it has little to no chance of winning support from the GOP-controlled Senate or President Donald Trump. The real fight will likely take place in federal courts — but the battle for public opinion is already in full swing, and influential and well-funded anti-abortion groups and their allies in Congress don’t want to take any chances.

“Everyone knows this renewed effort isn’t about women’s rights,” the office of House Republican Whip Steve Scalise said, summarizing the message being relayed to the GOP caucus. “It’s about eliminating federal and state life protections and ushering in an era of taxpayer funding of abortion.”

Conservatives argue that because only women can have abortions, any restrictions on the procedure could be deemed unconstitutional under the ERA — and they’re excoriating progressive supporters of the amendment for dancing around this open legal question. ERA proponents, in turn, accuse conservatives of harping on the abortion issue because most of the dire consequences they predicted in the 1970s have already come to pass.

“A lot of the arguments that they had in opposition against the ERA are no longer relevant,” said Rep. Carolyn Maloney, a lead sponsor of the House bill and author of a separate bill that would propose a new ERA. “One of them is that we would have co-ed bathrooms. Wake up. Have you been on a plane? Have you been in a private home? And women are already in the military, on the front lines, they're admirals, they're generals. As for gay rights — gay rights have passed. So that is no longer an issue."

Advocates for the ERA acknowledge that abortion needs to be part of the conversation. Any debate over women’s rights, they say, must also address control over when and whether to have children.

“There are no equal rights for women without access to abortion, plain and simple,” said Alexis McGill Johnson, acting president and CEO of Planned Parenthood.

But supporters say conservatives’ focus on the issue is little more than political cover for blocking women from gaining equality under the law. By homing in on abortion, they contend, opponents are merely pursuing a socially palatable way of opposing gender equality.

“They’re not going to get up and say, ‘I’m a [misogynist],’” Jessica Neuwirth, co-president and co-founder of the ERA Coalition. “They have to find some smokescreen.”

Abortion, she added, is “literally the only thing anyone has that they feel they can throw against the ERA.”

This messaging war, coming to a head with this week’s House vote, has been months in the making.

Attendees of January’s National Pro-Life Summit in Washington were told that the ERA is “abortion in disguise.” The U.S. Conference of Catholic Bishops wrote to lawmakers Thursday warning that the amendment would become “a powerful tool against pro-life abortion laws.” And a campaign launched over the weekend by Students for Life calls it “Roe 2.0” and argues ERA should stand for “Everything Related to Abortion.”

Kristan Hawkins, the president of Students for Life, said she’ll bring student activists to Capitol Hill this week to lobby moderate Republicans they fear might waver on voting no.

“Members sometimes get nervous and ask us, ‘How do we talk about this issue? Equal Rights Amendment sounds like such a good thing,’” she said. “We tell them: Sure, the ERA is a nice title but it has nasty consequences. It’s a Trojan horse. We know you’re worried about Republicans’ so-called women problem, which I would argue doesn’t exist, but this is not the way to address it.”

Conservatives cite other reasons they oppose the ERA — including that it could deny women alimony payments post-divorce and that the U.S. already has adequate laws to protect gender equality, such as the 14th Amendment. But abortion has emerged as the primary fault line in the reignited debate — and it’s an argument that resonates with Republican lawmakers.

“Anything that would hurt the right to life and threaten the protections we have for unborn children is a concern,” Rep. Jim Jordan (R-Ohio), the vocally anti-abortion leader of the House’s conservative Freedom Caucus, told POLITICO.

ERA supporters say that by tying the amendment to abortion, opponents are acknowledging that women are inherently unequal without access to the procedure — and they prefer to keep it that way.

“It’s ironic that people are pulling the ERA into this, because it suggests that they think abortion is an equality right,” Neuwirth said.

CUNY professor Julie Suk, an expert in comparative constitutional law who is writing a book on the ERA, agreed.

Opponents “are correct in sensing that women’s equal status in society requires some measure of reproductive freedom, and some measure of reproductive freedom includes access to abortion, under at least some circumstances,” she said.

This is only the latest chapter in a lengthy battle over whether a ban on discrimination on the basis of sex can and should be added to the Constitution.

Why hasn't the Equal Rights Amendment been ratified?

The ERA was proposed in 1923, rewritten in 1943, and adopted by Congress in 1972. Members of both parties supported the amendment — in fact, Republicans made it part of their platform well before Democrats, who were nervous it could deny women and children New Deal protections. Buoyed by a wave of public support, blue and red states rushed to ratify the language in the mid-1970s; but momentum slowed following a successful grassroots campaign by anti-feminist Phyllis Schlafly, who warned it would legalize gay marriage, mandate unisex bathrooms, and subject women to the military draft.

While abortion was one of many arguments against the ERA, it wasn’t the center of the debate like it is today.

“Before Roe v. Wade, there was little, if any, discussion in Congress about the implications of this for abortion,” said Douglas D. Johnson, the senior policy adviser at the National Right to Life Committee who represented the anti-abortion group in one of its initial battles against the ERA in the 1980s.

Congress extended the deadline to 1982 to no avail: By the time it expired, only 35 of the required 38 states had voted to ratify, and five even attempted to rescind their ratification.

The issue didn’t resurface until 2017, when Nevada became the 36th state to ratify the ERA and, a year later, Illinois followed suit. A wave of women running for and getting elected to public office in the wake of Trump’s ascendance, buoyed by the Women’s March and #MeToo movement, fueled the momentum to ratify, supporters and legal experts say — momentum that crested in January when Virginia voted to ratify the amendment, becoming the final state needed to clear the three-quarters threshold.

Opponents of the effort have mobilized in parallel — though some say legal obstacles make this a less urgent fight than Schlafly’s 1970s crusade.

“This is not a live ball. I would call it a show vote,” researcher Melanie Israel with the Heritage Foundation said of the House bill. “During the 1970s, this was at its peak. But everybody recognizes that the stakes are not the same now. Really it’s more of an opportunity for us to educate a new generation about why the ERA is problematic.”

Israel and other ERA critics point to what has happened at a local level. In New Mexico, Connecticut, Alaska and a few other states that have added ERA-like language to their own constitutions, conservative groups say it has provided a legal foundation to expand federal funding for medically necessary abortions, and set a precedent that they warn could lead to unfettered access to abortion.

Johnson cites a 1998 New Mexico Supreme Court ruling he called “the perfect case for showing how this would work,” in which judges voted unanimously that the state’s ERA requires its government use Medicaid funds to pay for medically necessary abortions.

“The New Mexico case shows it’s a very plausible outcome” on the national level, he said.

Legal experts counter that while the ERA would strengthen women’s rights, including reproductive ones, it’s unclear that such a scenario would transfer to the national level.

“It’s unpredictable, because it’s a legal argument … that if you cover all medically necessary services but you leave out abortion, that is sex discrimination,” Suk said. “That is an argument that I think is a persuasive argument, and some state Supreme Courts have been persuaded by that argument, but there are also arguments on the other side.”

Suk pointed to a U.S. Supreme Court ruling that the exclusion of pregnancy from certain benefits is not sex discrimination. In a similar fashion, she said, the question of whether the ERA guarantees access to abortion would be “up to the judges.”

“My own view as a legal thinker is that the right to make decisions about reproductive health care, including abortion, is central to any understanding of gender equality,” Suk said. “I’m not saying it’s unlikely to be the law of the land, but I’m saying it’s not a certainty that the ERA would lead to abortion funding.”

Conservatives arguing against ratification, including Israel, say they’re not comforted by this legal gray area.

“Really? Do you think that’s going to assuage our concerns about this? That we’ll say, ‘Sure, let’s just roll the dice and see if the Supreme Court agrees’? No. Of course not,” she said.

While Israel cited several other reasons why Heritage views the ERA as problematic, including the possibility that it could extend protections to transgender women, some anti-abortion groups including the NRLC say they would be neutral on the amendment if it included language explicitly stating that it doesn’t apply to abortion.

ERA supporters say such a carve-out is a nonstarter.

“The ability of women to participate equally and the idea of equality in our economy is fundamentally bound up with the ability to access reproductive rights,” said Fatima Goss Graves, the president of the National Women’s Law Center.

Days after Trump awarded the Presidential Medal of Freedom to Rush Limbaugh at the State of the Union address, the radio host was on the air spewing homophobic nonsense.

Said Limbaugh, in a clip posted by Media Matters: “So I saw a political ad, where Mayor Pete, Mayor Pete Buttigieg, going on and on and on and on and on, about how parents in America are struggling to explain President Trump to their children. And then I happen to see this — now, what are you shaking your head at in there? You think — natural conclusion — so he says Trump causes problems for parents, what about that? If you’re not watching on the DittoCam, what it is, a picture of Mayor Pete kissing his husband — which he does frequently.”

The post Rush Limbaugh: How Do You Explain Pete Buttigieg Kissing His Husband to Your Children? appeared first on Towleroad Gay News.

Why are people panicking over an ordinary presidential primary?

Fresh off signaling that probation would be just fine for the crimes of former Trump official Michael Flynn, the Justice Department is reportedly changing its sentencing recommendations for lifelong Trump confidant Roger Stone, according to Fox News producer Jake Gibson. “The Department finds seven to nine years extreme, excessive and grossly disproportionate," the source said, adding the DOJ will clarify its position on sentencing later today.

The Justice Department had already spoken out on Stone's sentencing, with signed sentencing recommendations from assistant U.S. attorneys. Now apparently, a new recommendation will be made that's much more favorable to Stone on the very same day that Trump opened by threatening to pardon his bestie altogether. 

Campaign Action

The news of the Justice Department's retreat on Stone's sentencing comes on the heels of Attorney General William Barr saying the department had an "obligation" to consider the Ukraine "dirt" Rudy Giuliani has been digging up on Trump's behalf no matter how bogus it is. So Barr's now taking his sentencing recommendations from Trump and dirt from Trump’s personal lawyer Giuliani. 

That would be the same Giuliani who's under investigation by federal prosecutors in the Southern District of New York. But those prosecutors all report to Barr too, so frankly who even knows anymore, as SDNY veteran Mimi Rocah noted on Twitter. "Former DOJ people are absolutely freaking out today between the Giuliani red carpet treatment at DOJ & now changing a sentence recommendation for Stone. And I have to [now] say I’m deeply concerned about SDNY, Rocah wrote, calling for hearings on the matter.

Absolutely. As former Justice Department spokesperson Matthew Miller pointed out, Giuliani is getting access to DOJ that no other American would be afforded. "If you’re under investigation and you want to provide info to DOJ about issues related to the things you’re under investigation for, you deal with the office investigating you, not a special backchannel," he wrote. 

And Barr certainly isn't answering any questions about much of anything voluntarily. He's flat-out declined to appear before the Judiciary Committee since taking office. He's also dodging reporters' questions, such as ducking out of Monday's press conference on Chinese hacking after taking only a single question. 

The House of Representatives already held Barr in contempt last year for defying their subpoenas on unrelated matters. It's time to subpoena him again and, if he defies it, skip court proceedings and just send the House sergeant-at-arms over to cuff Barr and put him in the "little jail down in the basement of the Capitol" that Speaker Nancy Pelosi alluded to last year.

Whatever the case, Barr needs to be preoccupied by Congress and a rush of reporter inquiries. Left unfettered, he is quickly turning the Justice Department into an extension of the State that does Trump's bidding and Trump’s bidding only. 

You can't say injustice without saying justice. 

Donald Trump’s proposed budget for upcoming years guts Social Security and Medicare. It cuts the core of the Centers for Disease Control despite the looming threat of a pandemic. It leaves behind only enough of the Environmental Protection Agency to oversee the unraveling of four decades of progress. And, most importantly, it makes permanent the idea that billionaires and corporations need never again worry their busy heads about taxes. Anyone upset that Amazon or Exxon paid $0 in taxes in 2019 can just multiply that number by infinity. Because in this kleptocracy, with great power comes no damn responsibility at all.

For decades, Social Security has been called the third rail of American politics, after the dangerous high-voltage line in the New York City subways: Touch it and die. But while it might seem reasonable that Trump supporters might back away from the suggestion that they surrender their own futures to poverty and their children to relabeled indentured servitude … they won’t. Of course they won’t. In a cult of personality, there is no third rail.

Crushing the social safety net isn’t just the realization of an authoritarian dream; it’s the political equivalent of Trump’s Fifth Avenue claims. He can shoot people’s financial security, and they won’t just forgive him for it—they’ll thank him. 

Who are they going to believe, their own lying eyes or Donald Trump? That’s not even a contest. When Trump issues a call of “fake news” or “crazy Nancy,” it’s treated like a call from the pulpit of the responder’s church. The response it generates is every bit as fervid.

Even before the election, Trump recognized the difference between the support he enjoyed and the experience of any other politician. Elizabeth Warren might have found her numbers dipping when opponents attacked details of her healthcare plan. Trump would never face such an issue—because he doesn’t have issues. He could tell the American people tomorrow that his plan calls for bad health care, for no health care, or for requisite snake-handling. It would not make a 2% difference in his approval rating. That is not how his support works. 

From the moment he landed at the White House, Trump has been probing the limits, just to see how far that support will flex. Can he pardon people obviously guilty of crimes because they said nice things about him? Of course he can. Can he spend a third of his time on the golf course after campaigning on the idea that he would be too busy to ever take a day off? Don’t even ask. Can he fire the director of the FBI and call him a criminal? Please do. Can he use his office to extort foreign allies? Sure. For political dirt? Why not. To cheat in the next election? Go for it!

Donald Trump doesn’t have to worry about stepping over the line on positions, or going against Republicans’ core beliefs, because the Republican Party no longer has those. It has no underlying theme, no central message, no framework of ideas. It is free, utterly free … so long as it understands that means absolute obedience to Trump. And a majority of Republicans in the House and Senate understand that very, very well.

That Trump is offering a budget that savages those things Americans say they hold most dear should be a concern to him, and to everyone allied with him. It’s not. After all, poll after poll has demonstrated that when it comes to political positions, the majority agrees with Democrats on every point. 

Trump’s budget should be an issue. If the nation still has those. Because what remains of American democracy is only exactly as much as Trump allows.

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Hovertext:
Have you noticed that you can take a sensation, then add any swear word of any kind, and the swear word intelligibly acts as emphasis?

Today's News:

Michael Bloomberg kicked off his Democratic presidential campaign by apologizing for the racist, brutal stop-and-frisk policy he embraced as mayor of New York City, but newly released audio shows just how much he has to apologize for. “Controversial, but, first thing is … 95 percent of your murders and murderers and murder victims fit one M.O.,” Bloomberg said, speaking at the Aspen Institute in 2015. “You can just take the description and Xerox it and pass it out to all the cops. They are male minorities 15 to 25.”

Gross, despicable, and racist. So gross, despicable, and racist that Team Trump seized on it, with both father Donald and son Donald tweeting about how racist Bloomberg’s comments were. They’re not wrong—they’re just completely cynical and dishonest about their own feelings about racist stop-and-frisk policies, and of course, with Trump, there’s always a tweet. Or three of them.

Trump is now retweeting Van Jones about the evils of stop and frisk, but in 2013, he tweeted “Stop and frisk works. Instead of criticizing @NY_POLICE Chief Ray Kelly, New Yorkers should be thanking him for keeping NY safe.” And also “Chicago is a shooting disaster-they should immediately go to STOP AND FRISK. They have no choice, hundreds of lives would be saved!” Not to mention “Since stop & frisk was struck down, gun shootings & victims have spiked--while gun seizures have decreased.”

It sure would be interesting—in a rubbernecking-at-a-wreck kind of way—if the 2020 presidential election came down to two racist billionaires from New York. But this is a great reminder, when debate moderators ask Sen. Bernie Sanders if he’s worried that Trump will attack him for being a democratic socialist, or ask any of the other candidates if voters should be worried that Trump will attack them for being [any possible quality here], that the Trump campaign is going to attack literally any Democrat on anything it thinks might provide an ounce of leverage. Even Trump specialties like racism. Even on a specific policy he repeatedly endorsed.

Bloomberg, though, has a lot more apologizing to do. So much apologizing.

Gerri King has never felt so unsure.

At this point in a Democratic presidential primary, the 77-year-old consultant has always had a favorite candidate. She’ll have observed him or her intently over coffee and dessert at her home in Concord, New Hampshire—where she receives most of the contenders every four years at her well-attended house parties and luncheons—and she’ll have made careful note of how they respond to questions from her friends and neighbors. Once she’s convinced of a particular candidate’s abilities, she’ll have begun to fervently campaign for him or her.

That’s how it went with Barack Obama in 2008, and with Hillary Clinton in 2016. But this time around, with just hours to go until the New Hampshire primary, a final decision has eluded her. There are just too many good options, King told me. “I feel like I’m foreign to myself,” she said. “I used to think, when people would say [they were undecided], How could you not know by now? Well, now I know how you can not know!”

The primary is still bloated with candidates, and the muddled results from last week’s messy Iowa caucus did not help much to narrow the field. That makes today’s election in New Hampshire even more fraught. A victory for Senator Bernie Sanders of Vermont, for example, would help cement his front-runner status, and a win for Pete Buttigieg would show that the former mayor’s success in Iowa wasn’t an aberration. How Senator Elizabeth Warren of Massachusetts and former Vice President Joe Biden perform here could make or break their campaigns.

There is a lot of pressure, then, on the voters of the Granite State. And there is a nonzero chance that King, despite her almost unparalleled access to the candidates, may walk into the voting booth this afternoon without knowing whom she’s voting for. I talked with King yesterday about that pressure, a weight felt by thousands of undecided voters across the state. Our interview has been edited for length and clarity.

---

Elaine Godfrey: Walk me through your political involvement this year. Which candidates have you met?

Gerri King: [My husband, Ron, and I have] hosted 12 candidates in our home this year, starting a year ago when Cory Booker came and 120 people showed up—with six days’ notice—during the holidays on a Saturday night. When we get that many people, a candidate’s staff has to help take our furniture out to the garage to accommodate them. Obama was at our house when he first ran, and Howard Dean was here when he ran a long time ago.

It’s the norm here that we see candidates. It is not the norm that there are so many undecided—us included. The reason that I haven’t decided—and many of our friends say the same thing—is that there are so many good candidates. So it’s a good reason. When I’m asked what I think of the candidates, I describe them [as making up] one perfect person.

Godfrey: You held an event at your house a couple of weeks ago for undecided voters to hear from Buttigieg supporters. Tell me about that.

King: Gary Hirshberg, who started Stonyfield yogurt, and Jennifer Frizzell, who’s very big in policy, are both supporting Pete Buttigieg. They asked us [if they could] come to our house and meet with undecided voters. We put out word to our very long list of people, probably 150 or 200 people, and said we were having that event. People came just to hear why they were supporting him.

Godfrey: What did you hear from voters there? Were people worried about still being undecided?

King: I haven’t seen people terribly stressed. I’ve seen them a little nervous. It’s like when you’re in college, and your paper’s due tomorrow. I don’t know if people are going to pull all-nighters …

Godfrey: How about your own decision-making process? How are you thinking about all of this?

King: When I start, I always keep an open mind. I didn’t think my mind would be open at this point! I was on NHPR public radio a couple of months ago talking about undecided voters and they called and said, ‘Do you wanna come back?’ I said, ‘My list has gotten longer instead of shorter.’

The story we tell about my husband is, he thought he was really narrowing down and then more candidates came to our house. Ron’s response was: ‘Damn it!’

Godfrey: Who has impressed you most?

King: I have to say, this really sounds sort of silly, but to a candidate, they have been gracious. They’ve been fun. We do all the cooking [at our events]. I was brought up Jewish, and I make a dish called noodle kugel. The only time I make it is for candidates. What happens is, I put a sign out that says, “Our experience is that if the candidate takes a bite of the kugel, they win something.” I [also] put out a disclaimer saying I really apologize to Howard Dean because I didn’t serve it [to him] and see what happened? I think Obama had kugel for the first time here.

Godfrey: Do you have a top three right now at least?

King: A top seven! I certainly like Pete. I like Warren. I think Amy [Klobuchar] is great. Biden is probably the most experienced. I also really like what Tom Steyer is brave enough to say. Because we’re a neighboring state, we kept up with [Deval Patrick] as governor of Massachusetts, and he’s terrific. He is really good.

[Read: Deval Patrick’s righteous anger]

Godfrey: Are you picking someone based on electability? On their ability to turn out voters? What are your concerns as you’re deciding?

King: It’s their leading potential. I’m often asked if I think various candidates are electable. My response is to remind everybody that we did not think Obama would win, because he was a man of color, and we sure as hell didn’t think Trump would win. I think we have no way of knowing who is electable. I can’t use it as criteria anymore.

I used to base it on how people felt about particular issues. In this case, although they have various ways of getting there, they all agree. Health care, how we’re treating immigrants, climate are very high on my list. That’s part of the reason it’s hard to decide! I can’t separate it by issues.

Godfrey: What does it feel like to have the eyes of the country on you?

King: One of the reasons people are undecided—a much larger percentage than there ever has been in New Hampshire—is we feel a responsibility. What happens here does matter and has mattered in past elections. So, yes, in addition to my making a choice, it does feel like a responsibility to the process. I haven’t met a single person who hasn’t said [they] will work tirelessly for whomever gets the nomination. That’s not the issue. The issue is: Who do I choose on Tuesday?

Godfrey: It’s not like Iowa, where you could go into a caucus undecided and be convinced. You have to know going in that you’re going to cast a vote for someone.

King: You walk in and you have to check somebody. I’ve never been in this situation, and I’ve been doing this for decades. I’ve always known. I’m [usually] out canvassing and making phone calls; I’m helping train other people to do those kinds of things. It’s been very strange not to be out there.

Godfrey: Were you hoping that Iowa was going to help you make this decision by shaping the field more?

King: That never occurred to me, and it never has. I’ve usually known by the time Iowa happens who I’m supporting. It never even entered my mind.

[Read: What went wrong at the Iowa caucus]

Godfrey: The turnout in Iowa was roughly at 2016 levels, which is not what Democrats were anticipating. Do you expect a low turnout in New Hampshire?

King: I’m probably the wrong one to ask, because every single person I know will vote. Concord traditionally has very high turnout. I’ve never met anyone who hasn’t voted. I don’t meet people who don’t vote.

Godfrey: What are you going to be doing between now and tomorrow when you go vote? How are you going to narrow it down?

King: In a couple of minutes, I’m going to go deliver a speech, a professional speech. I’m working in between. We’ve been asked to be on CNN this afternoon. And I’ve been asked to be on Fox on Tuesday.

I go to sleep thinking about the election, and I wake up thinking about it. And in between, I think about it.

Godfrey: But how are you going to do it? You’ll just end up making a decision at some point in the day tomorrow?

King: I think I will, yeah. I feel like I’m foreign to myself! I used to think, when people would say [that], How could you not know by now? Well, now I know how you can not know!

Godfrey: I just can’t believe how cheerful you sound. This is a high-pressure situation—I think I’d be more stressed.

King: [Laughs] Because with all the pressure, there is an enormous amount of excitement. It is such a kick. It is really hard to explain to people what fun this is. I’ve had people say, ‘Oh, I could never stand going to all those events.’ The people we talk to couldn’t stand not going! It’s become part of our process and our life.

Godfrey: Is there a chance that you walk into the voting booth tomorrow and still don’t know, and just have to make a decision then and there?

King: I hope not. I guess I won’t know until tomorrow, and by then it’ll be too late for your article!

Donald Trump, February 2020: “BEST USA ECONOMY IN HISTORY!” Also Donald Trump, February 2020: “The years of economic decay are over [...] I am thrilled to report to you tonight that our economy is the best it has ever been.”

Donald Trump, yet again in February 2020, justified a move to cap federal worker raises at 1% in 2021 by claiming “national emergency or serious economic conditions.” A raise over 1%, he said, would be “inappropriate.” The raise needs to be limited to “maintain efforts to put our Nation on a fiscally sustainable course.” You know, the “fiscally sustainable course” that Republicans cared not one bit about when they were slashing taxes for corporations and the wealthy, but that’s suddenly a big freaking deal when the question is whether to give federal workers a decent raise.

Trump also plans to freeze the “locality pay increase,” which gives a pay bump to federal workers in expensive areas, at 2020 levels.

Congress does not have to go along with this plan and can do the right thing for federal workers in a spending bill.

Remember when Sen. Susan Collins said this about grassroots fundraising against her: "I consider this quid pro quo fundraising to be the equivalent of an attempt to bribe me to vote against Judge Kavanaugh"? Ooooh, look at Collins talking quid pro quo. It's still unclear whether she understands what that means, given that money now equals free speech in politics. But what's really interesting now is that bribe part. Because we've finally got some answers to that mystery of the big money coming into her campaign from Hawaii, and boy, does it sure appear to be in the neighborhood of quid pro quo and bribery.

Collins has chosen her side, and Maine knows it. Please give $1 to help Democrats in each of these crucial Senate races, but especially the one in Maine!

The money that showed up in the coffers of 1820 PAC, a super PAC set up to fund Collins, came from a shell company incorporated as the Society of Young Women Scientist and Engineers. Behind SYWSE, Honolulu Civil Beat reports, is Hawaii-based defense contractor Navatek LLC. The the Maine People’s Alliance website Beacon picks up the story from there: "In August 2019, Navatek was awarded an $8 million contract from the U.S. Navy Office of Naval Research," it reports. "Collins, joined by Lao and other members of Navatek's leadership team, announced the award together at a press event in Portland."

Collins was there for the big announcement because she was the one who got it into the defense appropriations bill, from her perch as head of the subcommittee that secured it. And guess what happened two weeks later: Yep, a bunch of donations to Collins’ campaign from people associated with Navatek. Then, in December, the 1820 PAC (again, set up to support Collins) got that $150,000 from SYSWE, the shell company of Navatek.

It all came together for Honolulu Civil Beat with the single name associated with SYSWE: Jennifer Lam. Turns out Navatek CEO Martin Kao is married to a woman named Tiffany Jennifer Lam, who has donated the maximum allowed amount—$5,600—to Collins, FEC records show, as have her husband and other officers of Navatek. Now is that a bribe, or is it a reward? Cuz, boy, from here it sure looks like quid pro quo of some kind.

Pay no attention to the man behind the curtain, folks, who thinks the same fuzzy math that brought us trillion-dollar deficits will now erase them by 2035. That's right: Despite having to concede that its previous 3% growth forecasts didn't live up to expectations, the White House is assuring America that it'll be nothing but soaring 3% growth going forward, according to The New York Times. 

By next year, the deficit will already be dipping below $1 trillion, and then it will just dwindle down until, poof! It's gone for good by 2035. Naturally, after briefly admitting that their previous growth projections had been too bullish, Trump officials went right back to using their 3% growth metric for the next few years. It's not only a projection that failed them in the past—it's also one that isn't shared for the future by the Federal Reserve, the budget office, and others that almost uniformly predict the growth rate falling under 2% going forward.

Although the White House once claimed the mantle of being the only administration to enjoy growth that "meets or exceeds its own forecasts in each of its first two years in office,” that also proved false once the Commerce Department revised its 2018 growth rate. Ultimately, the White House predictions fell short in both 2018 and 2019. Surely, its 2020-through-2035 projections will be spot-on, though. And if they're not, Trump will simply lie about them in perpetuity, while the rest of us bear the burden of his alternative facts. 

In November, former Trump campaign adviser Roger Stone was found guilty on all counts in the charges against him, including lying to Congress and witness tampering, in direct relation to Stone’s role as a liaison between WikiLeaks and the Trump campaign in 2016. The potential sentence for those crimes is more than 20 years, and on Monday prosecutors recommended a sentence of seven to nine years.

On Tuesday morning Donald Trump made it clear that before Stone receives so much as a slap on the wrist, he intends to make it all go away for the man who threatened a witness, covered up crimes, and lied repeatedly to investigators. Declaring that “the real crimes were on the other side,” Trump tweeted that he would not allow the charges against Stone to stand.

Donald Trump has already demonstrated an extraordinary willingness to use his pardon powers to excuse his allies of any wrongdoing. He has pardoned racist former Sheriff Joe Arpaio for charges of contempt of court. He dipped back into a former round of Republican wrongdoing to pardon Scooter Libby on multiple counts of perjury. He pardoned far-right propagandist Dinesh D'Souza for a conviction for campaign contribution fraud. He even pardoned newspaper magnate Conrad Black, whose fraud conviction had just been upheld unanimously by the Supreme Court, after Black wrote a flattering biography of Trump.

Trump has not been subtle about putting a short, fat thumb onto the scales of justice. So it shouldn’t come as a surprise that Trump appears to be putting pressure on a judge even before sentencing takes place.

As The New York Times reported on Monday, in obtaining a conviction against Stone, prosecutors carefully outlined that his crimes had not been a one-off event. The man who had been describing himself as a “dirty trickster” for decades had, unsurprisingly, been involved in dirty tricks just as long. And when his connections to WikiLeaks came under scrutiny, Stone engaged in a multiyear scheme that included “a relentless and elaborate campaign to silence.” That campaign involved threatening not just to injure or kill a witness, or to send thugs to take him out; Stone even promised that he would kill the witness’ dog.

Stone’s attorneys have argued for a sentence of just over a year—well below even the minimums that guidelines provide for his crimes. But based on the signals Trump is sending, it’s unlikely to matter. Whether he’s sentenced to one year or 10, Roger Stone is likely to be back in the buffet line at Mar-a-Lago by the end of the month, chuckling over the idea that he, or any of Trump’s friends, is subject to justice.

Sen. Bernie Sanders (I-VT) speaks to protesters rallying against Supreme Court nominee Judge Brett Kavanaugh on Capitol Hill, on October 4, 2018. | Drew Angerer/Getty Images

One possible version: What if the Court had 188 justices?

Sen. Bernie Sanders (I-VT) came out against court-packing as a way to end Republican dominance of the Supreme Court on Saturday. But he then suggested an alternative that is no less radical — neutralizing the Court’s Republican majority by demoting some of its members.

Some of Sanders’s rivals have embraced or, at least, expressed openness toward court-packing, adding additional seats to the Supreme Court to dilute its Republican members’ votes. Sanders, at a forum focused on how Democratic presidential candidates would approach an increasingly conservative judiciary, said he emphatically rejects such an idea.

Court-packing, Sanders told MSNBC’s Stephanie Ruhle during an event titled “Our Rights, Our Courts,” would produce a kind of death spiral for the Supreme Court.

“We add two more judges. The next guy comes in — maybe a Republican — somebody comes in, you have two more,” and before you know it, he said, “you have 87 members of the Supreme Court. And I think that delegitimizes the Court.”

But then he suggested another alternative: It may be possible to “rotate judges” off the Supreme Court and onto lower courts.

“A federal judge has a lifetime appointment,” Sanders told Ruhle, but the Constitution “doesn’t say that lifetime appointment has to got be on the Supreme Court — it’s got to be on a federal court.”

The Sanders campaign did not respond to a request for comment regarding this proposal.

It’s a novel response to the hardball tactics Republicans used to hold a Supreme Court vacancy open for more than a year, until President Trump could fill it with the archconservative Neil Gorsuch. But is Sanders right? Can Gorsuch simply be told that he’s being transferred to the United States District Court for the District of Colorado?

The short answer to this question is almost certainly “no.” But the longer answer is more nuanced. A President Sanders cannot simply reassign justices to lower courts, but he could potentially create a system where many different judges take turns serving as our nation’s most powerful jurists.

The solution may not be a court packed with two more Democratic appointees. It may be a court packed with dozens or even hundreds of appointees from both parties.

Is it legal to “rotate” justices off the Supreme Court?

The federal judiciary has three levels. District courts conduct trials and are typically the first judicial forum to hear a federal case; circuit courts (or courts of appeal) are the first recourse for litigants seeking to appeal a district court’s decision; and the Supreme Court sits at the top of the judicial pyramid, hearing a small percentage of the most vexing appeals.

It is well established that a judge appointed to one court may sometimes perform duties on a different court. District judges often sit “by designation” on circuit court panels. Retired Supreme Court justices typically remain members of the federal judiciary, and will occasionally hear a case on a lower court. In 1984, then-Justice William Rehnquist presided over a district court trial in Richmond, Virginia.

Yet while there are many examples of a Supreme Court justice temporarily assuming the duties of a lower court judge, the justice typically must consent to such an arrangement. It is highly doubtful that either Congress or a Sanders administration could reassign a justice to a lower court without that justice’s permission.

The Constitution provides that federal judges “shall hold their offices during good behaviour.” The “office” currently held by Neil Gorsuch is “associate justice of the Supreme Court of the United States.” Though there is some debate among scholars about what constitutes “good behaviour” under the Constitution, no reputable scholar that I’m aware of claims that a justice can be removed simply because their political agenda is at odds with the views of the president or of the majority party in Congress.

Absent some kind of misbehavior on his part, in other words, Gorsuch is likely to remain an associate justice for as long as he wants. Yet, while it would be difficult to strip a sitting justice of their current office, there may still be a way to effectively demote the current members of the Supreme Court.

The “lottery” solution

In an influential paper published in the Yale Law Journal, law professors Daniel Epps and Ganesh Sitaraman suggest two ways to restructure the Supreme Court in the hopes of depoliticizing it. One of their proposals, which former South Bend, Indiana Mayor Pete Buttigieg often touts on the campaign trail, is to expand the Supreme Court to 15 justices and implement a nonpartisan selection method for five of those justices.

Epps and Sitaraman’s other proposal is a “Supreme Court lottery.”

It works like this: Evert one of the 179 active circuit judges would receive a promotion to associate justice of the Supreme Court. For the most part, this promotion wouldn’t change their day-to-day work very much — they’d continue to hear cases on their current court, and they’d continue to do more or less the same work they’ve been doing as circuit judges.

But there would be a catch. Under Epps and Sitaraman’s lottery proposal, “the Supreme Court would hear cases as a panel of nine, randomly selected from all the Justices” — meaning that this panel would be randomly selected from among the nine current justices plus the 179 new justices. Epps and Sitaraman would also reshuffle this panel very frequently — a new panel of nine would be chosen every two weeks — although the proposal could be modified so that a particular panel would sit for a longer period of time.

The advantage of this “lottery” proposal is that it might be constitutional. Barring extraordinary events, Congress cannot strip a sitting justice of their “office,” but it can give the same office to a whole bunch of additional people. Under the lottery proposal, Gorsuch would remain an associate justice of the Supreme Court. He’d just have 179 new colleagues.

Moreover, it’s hardly unheard of for judges to hear cases on randomly assigned panels. The overwhelming majority of cases heard by federal circuit courts are heard by randomly assembled three-judge panels, not by the full appeals court. So if a small panel of appeals court judges can decide a case on behalf of their court, perhaps a panel of Supreme Court justices could do so as well.

To be clear, the constitutional case for a Supreme Court lottery is hardly airtight. Recall that the Constitution provides that federal judges “shall hold their offices during good behaviour.” The current justices might argue that one of the essential attributes of their office is the right to sit permanently on the nation’s most powerful panel of judges — and thus any legal regime that strips them of that right is unconstitutional.

It’s also far from clear that rotating judges would prevent the Supreme Court from undercutting Sanders’s agenda. In just three years in office, Trump’s appointed more than a quarter of the federal appellate judiciary, and many of his judges hold views that are well to the right of the current median justice.

One danger of randomly selecting members of the Supreme Court is that there’s no guarantee that the lottery won’t select James Ho, Neomi Rao, and three other Trump judges who are well to the right of the Roberts Court. Such a panel would only serve temporarily, under the lottery system, but that could be all the time they need to declare much of Sanders’s accomplishments — and potentially many of the New Deal and the Great Society policies — unconstitutional.

Which brings us back to the proposal Sanders has already rejected: court-packing.

The downsides of court-packing are myriad. Sanders is right that it is likely to inspire retaliation — Republicans can add justices too if they regain control of Congress and the White House. And Sanders is also right that court-packing will tend to delegitimize the Supreme Court.

Red states are likely to engage in massive resistance against a Supreme Court packed with Democratic appointees. And, as the Jim Crow South’s massive resistance to Brown v. Board of Education (1954) demonstrates, such resistance can be very effective even when most of the country accepts the legitimacy of the Court.

But Republicans also believe that they won control of the Supreme Court fair and square, and are likely to treat any effort to strip away that control as illegitimate. If the Roberts Court overrules Roe v. Wade (1973), red states are likely to engage in massive resistance if Roe is reinstated by a packed Court. They are also likely to do the same if Roe is reinstated by a panel of liberal justices chosen by a lottery.

All of which is a long way to say that there probably isn’t any way to change the makeup of the Supreme Court that won’t be met with resistance. If Sanders believes that a lottery system is preferable to a packed Court on the merits, then he should push the policy that he believes to be best.

But he shouldn’t expect the same partisans who wouldn’t let President Obama appoint anyone at all to a Supreme Court vacancy to accept a new system where Republicans aren’t guaranteed control of the judiciary. One the Supreme Court becomes a partisan prize, it is devilishly hard to take that prize away from the party that captured it.

This is some truly hilarious spin from Senate Republicans, pretending that they exist to do stuff for the nation post-impeachment. "Hopefully the better angels of people will begin to emerge, and we’ll see a willingness to focus on a common agenda. […] I think both sides have things they need to get done." That's Sen. John Thune, Moscow Mitch McConnell's No. 2, talking about all the bipartisan bills they're going to do now.

Of course that's not what is going to happen. "My preference I guess would be […] we start working on things that unite us," said Sen. Kevin Cramer, Republican of North Dakota. "Not just as Republicans, but as a Senate, as a Congress, as Americans." Yeah, that's not happening either. Here's what's happening: According to The Hill, "McConnell tees up five Trump judges after impeachment trial wraps." One of those judicial nominees is Andrew Brasher, nominated to the Eleventh Circuit Court of Appeals, the federal appellate court for Alabama, Georgia, and Florida, where he would be the sixth Trump nominee on the 12-member court. Yes, Trump will have half of this bench. Brasher is 38 years old.

It's time to end McConnell's destructive stranglehold on the republic. Please give $1 to our nominee fund to help Democrats and end McConnell's career as Senate majority leader.

Brasher is opposed by leading national, state, and local racial justice organizations. A coalition of 29 advocacy groups called for a halt to his nomination pending Trump’s impeachment, and remain opposed to him now. "In his short career as a lawyer," the Alliance for Justice says, "Brasher fought against voting rights, rights for women, communities of color, and the LGBTQ community and zealously worked to dismantle consumer, worker, and environmental protections."

Par for the course for Trump and McConnell, in other words. And of course he's a Federalist Society member. But his presence on this court would be particularly scary looking ahead to the 2020 election. Georgia will have two Senate races, and Florida is always a presidential battleground. Republicans will try every voter suppression tactic in the book in those states, and now there'll be a federal court overseeing those states that will rubber-stamp them. That's McConnell—he'll never stop cheating now. But he won't be able to overcome a nation united against him and a vote swarm to take back the Senate.

As he has multiple times before, Donald Trump again is musing about revamping the American justice system to model it after authoritarian China. Specifically, he wants to duplicate China's policy of executing drug dealers.

"Countries with a powerful death penalty, with a fair but quick trial, they have very little if any drug problem. That includes China," he noted.

China is known for many things, but fair trials is conspicuously not among them. As tweeter Brandon Rittiman pointed out, the State Department specifically warns American travelers that the Chinese legal system "can be opaque," "arbitrary," and is subject to "political influence." Trials in China are not "fair," though they can be "quick." Drug sentences in China do indeed include state executions, though, which is transparently the only part Donald Trump is most interested in.

Two other bits seem evident as well: Trump doesn't mean, for example, the Sackler family, who are ground zero for much of the U.S. opioid epidemic. Trump also is unlikely to mean he intends to start executing drug users in the regions that epidemic is most rampant: white, rural, Trump-supporting places. On the contrary, Trump's visions of ultimate "justice" tend to run the most rampant when he is discussing, a la white supremacist Republican Rep. Steve King, the "drug mules" of the southern border, so we can presume any such speedy-trial, speedy-execution plan would at least initially be aimed mostly toward Trump's new tented border courtrooms.

But Trump keeps coming back to this idea of executing more criminals, over and over, and it clearly is based in Trump's overall fixation on the raw efficiency of dictatorships. As a malignant narcissist, the idea of his own proclamations being enforced without archaic notions of checks and balances must be enthralling. The man may very well fall asleep each night imagining what he could do with such powers. As a vengeance-obsessed cretin turned tinpot authoritarian, the notion of dispensing permanent "justice" aimed at whichever figures Trump deems most dangerous, with a Justice Department fully willing and able to carry out his orders, seems unlikely to be one Trump intends to confine only to one particular sort of miscreant.

In any case, when someone tells you who they are you should believe them. Trump has been consistent in his advocacy here, and unapologetic. He dreams of retooling the United States justice system to mirror what he finds best about autocracies: their efficient process of executing designated criminals. Some criminals, of course. Not others.

Trump suggests he'd like to model American criminal law on drug dealing on authoritarian systems like China, where dealers are executed: "Countries with a powerful death penalty, with a fair but quick trial, they have very little if any drug problem. That includes China." pic.twitter.com/9WprysjJAX

— Aaron Rupar (@atrupar) February 10, 2020

[Now published in the NYU Journal of Law & Liberty]

The NYU Journal of Law & Liberty has published the final version of my new article, "Originalism and Stare Decisis in the Lower Courts." I hope this piece is of interest to many lower court judges who are now routinely engaging with the original meaning of the Constitution.

Here is the abstract:

The tension between originalism and stare decisis is well known. Many of the Supreme Court's most significant constitutional decisions are completely unmoored from the original public understanding of the Constitution. A Supreme Court Justice may recognize that a given precedent is non-originalist, but follow it anyway because of the doctrine of stare decisis. Or, a Supreme Court Justice may decide to deviate from stare decisis because that precedent is non-originalist. The Supreme Court's unique status, which is perched atop our judiciary, affords its members leeway to make either decision.

Lower court judges, however, do not have that sort of discretion. Consider a judge on a federal circuit court of appeals. First, she is bound by Supreme Court precedents interpreting the Constitution, regardless of whether those precedent are originalist or not. No matter how wrong a given Supreme Court case is, that precedent must be followed. Second, she is bound by circuit precedent interpreting the Constitution, regardless of whether that precedent is originalist or not. Only an en banc majority can reverse circuit precedent, and those proceedings are quite rare.

An originalist circuit judge would only have free jurisprudential rein in the rare case of first impression, where neither the Supreme Court nor the circuit court had considered a particular constitutional question. Those cases are even rarer. Even then, the circuit judge would still be at a disadvantage. Circuit courts seldom receive the wealth of originalist party and amicus briefs that are directed to the Supreme Court. Here, the circuit judge will often have to do all of her own originalist research—the proverbial law office history report—without the benefit of the adversarial process.

In short, it's tough for a lower-court judge to be a constitutional originalist. But it can be done. Part I of this essay explains when a lower-court judge can be an originalist. Part II explains how a lower-court judge can be an originalist.

 

A software flaw exposed the personal data of every eligible voter in Israel -- including full names, addresses and identity card numbers for 6.5 million people -- raising concerns about identity theft and electoral manipulation, three weeks before the country's national election. The New York Times reports: The security lapse was tied to a mobile app used by Prime Minister Benjamin Netanyahu and his Likud party to communicate with voters, offering news and information about the March 2 election. Until it was fixed, the flaw made it possible, without advanced technical skills, to view and download the government's entire voter registry, though it was unclear how many people did so. How the breach occurred remains uncertain, but Israel's Privacy Protection Authority, a unit of the Justice Ministry, said it was looking into the matter -- though it stopped short of announcing a full-fledged investigation. The app's maker, in a statement, played down the potential consequences, describing the leak as a "one-off incident that was immediately dealt with" and saying it had since bolstered the site's security. "Ran Bar-Zik, the programmer who revealed the breach, explained that visitors to the Elector app's website could right-click to 'view source,' an action that reveals the code behind a web page," the report adds. "That page of code included the user names and passwords of site administrators with access to the voter registry, and using those credentials would allow anyone to view and download the information. Mr. Bar-Zik, a software developer for Verizon Media who wrote the Sunday article in Haaretz, said he chose the name and password of the Likud party administrator and logged in." The flaw was first reported on Sunday by the newspaper Haaretz.

Read more of this story at Slashdot.

["The Eighth Amendment’s history and original understanding are of vital importance to this case."]

In August, a Ninth Circuit panel held that the denial of sex-reassignment surgery to a prisoner with gender dysphoria violates the Eighth Amendment. The Ninth Circuit has now denied rehearing en banc in that case. Judge Patrick Bumatay, who was confirmed in December, wrote a dissent from denial of rehearing en banc. He was joined in fully by Judges Callahan, Ikuta, R. Nelson, Bade, and VanDyke. (Judge Collins only joined Part II.)

Judge Bumatay's dissent is thoroughly originalist. Here is the introduction from Part I of the opinion:

In holding that Idaho violated the Eighth Amendment, the panel opined that the Constitution's text and original meaning merited "little discussion." I disagree.

As inferior court judges, we are bound by Supreme Court precedent. Yet, in my view, judges also have a "duty to interpret the Constitution in light of its text, structure, and original understanding." NLRB v. Noel Canning, (2014) (Scalia, J., concurring). While we must faithfully follow the Court's Eighth Amendment precedent as articulated in Estelle v. Gamble,(1976), and its progeny, "[w]e should resolve questions about the scope of those precedents in light of and in the direction of the constitutional text and constitutional history." Free Enter. Fund v. Public Co. Accounting Oversight Bd., (D.C. Cir. 2008) (Kavanaugh, J., dissenting), aff'd in part, rev'd in part and remanded, 561 U.S. 477 (2010).

Accordingly, the Eighth Amendment's history and original understanding are of vital importance to this case.

Judge Bumatay also relies extensively on the work of Professor John Stinneford, the leading scholar on Eight Amendment originalism.

In the 18th Century, a punishment was "unusual" if it ran contrary to longstanding usage or custom, or had long fallen out of use. Bucklew, (citing 4 William Blackstone, Commentaries on the Laws of England 370 (1769); Stuart Banner, The Death Penalty: An American History 76 (2002); Baze v. Rees, 553 U.S. 35, 97 (2008) (Thomas, J., concurring); John F. Stinneford, The Original Meaning of "Unusual": The Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1770–71, 1814 (2008)). This early understanding comports with the plain meaning of "unusual," which has changed little from our Nation's founding. See Harmelin v. Michigan, (1991) (comparing Webster's American Dictionary (1828) definition of "unusual" as that which does not "occu[r] in ordinary practice" with Webster's Second International Dictionary 2807 (1954) as that which is not "in common use.").

Conversely, customs enjoying a long history of usage were described as "usual" practices. Stinneford, supra, at 1770. James Wilson, a key contributor to the Constitution, stated that "long customs, approved by the consent of those who use them, acquire the qualities of a law." 2 James Wilson, Collected Works of James Wilson 759 (Kermit L. Hall & Mark David Hall eds., Indianapolis, Liberty Fund 2007); see also Stinneford, supra, at 1769. Likewise, early American courts construing the term "cruel and unusual" (generally, as used in state constitutions) upheld punishments that were not "unusual" in light of common law usage. Stinneford, supra, at 1810–11.

This opinion illustrates how lower court judges can consider originalism and stare decisis.

I also commend Judge Bumatay's general approach to the case. Often, originalist opinions are curt or dismissive towards the person asserting a right not supported by the original meaning of the Constitution. Not here.  Judge Bumatay goes out of his way to identify with the prisoner's situation, even though the law is not in her favor. Here is the introductory section of the opinion:

Like the panel and the district court, I hold great sympathy for Adree Edmo's medical situation. And as with all citizens, her constitutional rights deserve the utmost respect and vigilant protection. As the district court rightly stated,

The Rule of Law, which is the bedrock of our legal system, promises that all individuals will be afforded the full protection of our legal system and the rights guaranteed by our Constitution. This is so whether the individual seeking that protection is black, white, male, female, gay, straight, or, as in this case, transgender.

Adree Edmo is a transgender woman suffering from gender dysphoria—a serious medical condition. While incarcerated in Idaho's correctional facilities, she asked that her gender dysphoria be treated with sex-reassignment surgery ("SRS"). After consultation with a prison doctor, her request was denied. She then sued under the Eighth Amendment.

I respect Edmo's wishes and hope she is afforded the best treatment possible. But whether SRS is the optimal treatment for Edmo's gender dysphoria is not before us. As judges, our role is not to take sides in matters of conflicting medical care. Rather, our duty is to faithfully interpret theConstitution.

That duty commands that we apply the Eighth Amendment, not our sympathies. Here, in disregard of the text and history of the Constitution and precedent, the panel's decision elevates innovative and evolving medical standards to be the constitutional threshold for prison medical care. In doing so, the panel minimizes the standard for establishing a violation of the Eighth Amendment.

Judge Bumatay's opinion serves as a model of how other courts should treat similar issues.

[Episode 299 of the Cyberlaw Podcast]

The next trade war will be over transatlantic data flows, and it will make the fight with China look like a picnic. That's the subject of this episode's interview. The European Court of Justice is poised to go nuclear – to cut off US companies' access to European customer data unless the US lets European courts and data protection agencies refashion American intelligence capabilities according to standards no European government has ever been required to meet. It is Europe in full neocolonial mode, but the movement has so far sailed below the radar, disguised as an abstruse European legal fight. Maury Shenk and I interview Peter Swire on the Schrems cases that look nearly certain to provoke a transatlantic trade and intelligence crisis. Actually, Maury interviews Peter, and I throw bombs into the conversation. But if ever there were a cyberlaw topic that deserves more bomb-throwing, this is it.

In the News Roundup, David Kris tells us that the trial of alleged Vault7 leaker Joshua Schulte is under way. And the star of the first day is our very own podcast regular, Paul Rosenzweig.

If you're wondering whether more cybersecurity regulation is what the country needs, you should be paying attention to the Pentagon, which has embraced cybersecurity regulation for its contractors. Matthew Heiman reports that DOD isn't finding the path easy. DOD has released its final cybersecurity plan for contractors, but the audit process needed to enforce it remains a mystery.

That's SNAKE spelled backwards: David tells us about a new strain of ransomware known as EKANS; ominously, it is targeting industrial control systems. I manage to find a very modest silver lining.

Nate Jones sums up the cybersecurity lessons from the voting debacle in Iowa.

Nate also reports on the FCC's latest half-step toward suing one or more telcos for selling phone-location data.

Matthew covers the Maze ransomware that has ravaged law firms in recent weeks. He argues that it's only a matter of time before such attacks become dog-bites-man stories.

Matthew also notes that Google and Facebook have apparently dropped plans to terminate their transpacific cable in Hong Kong. US national security concerns seem to have driven the decision. Looks like the Great Decoupling could be spurring a very real physical decoupling.

Nate makes the best of being asked to talk about the 2020 version of a Worthwhile Canadian Initiative: The third volume of the Senate Intel Committee's Russian electoral interference report. It's sober and responsible and bipartisan – and largely unread, sadly.

And to bring you up to speed on past stories:

• A Brazilian judge has declined to accept charges against Glenn Greenwald, "for now."
• The poster child for our current facial recognition moral panic can't catch a break: As I predicted, Clearview AI has been hit with orders to cease-and-desist from Google and Facebook.
• Tag-teaming with Bill Barr, child-welfare activists are attacking Facebook over its encryption plans and what that means for exploited kids.
• One of the first CCPA lawsuits has been filed, against Salesforce.
• And This Week in Silicon Valley's Suppression of the Right:
  • Letterboxd banned a black libertarian film critic's reviews.
  • James O'Keefe's Twitter account was suspended after he named a Bernie Sanders staffer who spoke fondly of gulags and electoral violence.
  • And Twitter banned the widely popular Zero Hedge account after it named a Chinese researcher who it thought might have a role in coronavirus.

Download the 299th Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of the participants' firms, clients, friends, former friends, or family members.

It's another sea of red ink for federal research funding programs in President Donald Trump's latest budget proposal. The 2021 budget request to Congress released today calls for deep, often double-digit cuts to R&D spending at major science agencies. From a report: At the same time, the president wants to put more money into a handful of areas -- notably artificial intelligence (AI) and quantum information science (QIS) -- to create the new technology needed for what the budget request calls "industries of the future." Here is a rundown of some of the numbers from the budget request's R&D chapter. (The numbers reflect the portion of each agency's budget classified as research, which in most cases is less than its overall budget.) 1. National Institutes of Health: a cut of 7%, or $2.942 billion, to $36.965 billion. 2. National Science Foundation (NSF): a cut of 6%, or $424 million, to $6.328 billion. 3. Department of Energy's (DOE's) Office of Science: a cut of 17%, or $1.164 billion, to $5.760 billion. 4. NASA science: a cut of 11%, or $758 million, to $6.261 billion. 5. DOE's Advanced Research Projects Agency-Energy: a cut of 173%, which would not only eliminate the $425 million agency, but also force it to return $311 million to the U.S. Department of the Treasury. 6. U.S. Department of Agriculture's (USDA's) Agricultural Research Service: a cut of 12%, or $190 million, to $1.435 billion. 7. National Institute of Standards and Technology: a cut of 19%, or $154 million, to $653 million. 8. National Oceanic and Atmospheric Administration: a cut of 31%, or $300 million, to $678 million. 9. Environmental Protection Agency science and technology: a cut of 37%, or $174 million, to $318 million. 10. Department of Homeland Security science and technology: a cut of 15%, or $65 million, to $357 million. 11. U.S. Geological Survey: a cut of 30%, or $200 million, to $460 million.

Read more of this story at Slashdot.

If there were any major sites that took a web traffic pummeling in 2019 Yahoo and Tumblr would top the list. That's according to a new report from SimilarWeb. The report looks back on key web trends in 2019. Among those trends were some pretty bad news for some sites: 1. Total web traffic is on the rise, growing 8% in 2019 to 223 billion visits per month to the top 100 websites worldwide. 2. Mobile is fueling much of that growth. While desktop web traffic decreased 3.3% since 2017, mobile web traffic shot up 30.6% over the same period. 3. But with the mobile web comes shrinking attention spans. The report says that visitors are spending 49 seconds less on websites per visit than they did three years ago. 4. The top 10 sites took 167.5 billion visits per month in 2019 -- a 10.7% increase. 5. Mobile visits claim the majority of visits made to "vice" sites -- those that involve porn and gambling. 6. The U.S. leads the world when it comes to visiting the websites. In 2019, over 300 billion visits per month to sites were made from America.

Read more of this story at Slashdot.

Mario Tama/Getty Images

The state’s plan to send patients to Mexico to buy cheap drugs is an indictment of US health care.

The insurance plan for Utah government employees decided two years ago it had to do something to curb prescription drug costs. Its solution? Pay for workers to travel to Canada or Mexico to buy the same medications they’d been getting in the United States, just at much lower prices.

Today, the Utah insurer is saving hundreds of thousands of dollars a year on drugs for a handful of patients who need expensive medicines and make the trip abroad to get them. It’s not as much as they were originally hoping for, but enough that paying airfare plus a $500 bonus is still a worthwhile deal for the state to make.

Medical tourism is hardly a new phenomenon. Eight percent of Americans said in a 2016 Kaiser Family Foundation poll that they had purchased prescription drugs outside of the United States. US government surveys have estimated between 150,000 and 320,000 Americans annually name health care as their reason for traveling abroad. Lower costs are usually their motivation.

But to see it so deliberately deployed by a major health insurer as a cost-saving measure is unusual.

”While we have long heard stories of individuals or informal groups of patients crossing the border to buy cheaper drugs, it has not typically been a sanctioned part of the American health insurance system,” Caroline Pearson, senior fellow at NORC-University of Chicago, told me. “The Utah ... example is the only case that I am aware of.”

Employers and health insurance plans are always looking for ways to cut costs, of course. That’s why they create provider networks in the first place.

Some employers will also send patients outside of their geographic area to high-quality health centers in the interest of lowering costs — according to the Kaiser Family Foundation, 16 percent of employers have utilized these so-called “centers of excellence” and of those firms, about one in five will pay for travel and lodging expenses.

”This is just the natural extension, I suppose,” Walid Gellad, director of the Center for Pharmaceutical Policy and Prescribing at the University of Pittsburgh, said. “It is really something that they’re paying people to do this — not just paying for it, but paying people to do it.”

In brief, here is how the Utah government employee program works:

• Patients taking one or more of 13 specialty drugs are eligible to participate
• They can travel to Vancouver, Canada, or Tijuana, Mexico, to buy their prescriptions
• They still make their usual copayments only
• The state health insurance plan covers the cost of their airfare, transportation to and from the airport, and lodging if necessary
• The state will also pay the patients $500 cash for making the trip

The health insurer works with a Mexico-based pharmacy to arrange the purchases and coordinate travel. From a great Salt Lake Tribune story on the program:

Flying from Salt Lake City to San Diego International Airport takes about two hours. At the base of the baggage claim escalator in San Diego, Javier Ojeda greets first-time patients with a name placard and a driver.

“We never leave [patients’] side,” said Ojeda, general manager of Provide Rx, the pharmacy that works with Hospital Angeles to obtain and dispense specialty drugs for U.S. patients. Provide Rx also makes all travel arrangements, including a motor service staffed by bilingual drivers, who escort patients out of the airport and into a van for the short drive south.

Of course, the only reason it’s worth going through all this trouble for the patients and their insurer is drug prices in the United States are so much higher than anywhere else, including Mexico and Canada.

Here are the international price comparisons for the arthritis medication Humira, one of the 13 drugs that qualify for the Utah program, via a report from House Democrats:

House Ways and Means Committee

So you can see why Utah’s insurance plan is eager to find cheaper prices for these drugs. But it turns out they really needed the $500 cash incentive to get people to take advantage of it.

According to the Tribune, the state insurance plan actually already had a longstanding policy to cover travel costs for patients who journeyed to Tijuana to have certain procedures done (to the same hospital where they now go to get prescriptions filled), but nobody took them up on it. It was the $500 in cash that seemed to make the difference.

It’s important to maintain some context here: Only 10 patients have actually made the trip to Mexico to buy cheaper drugs (though, remember, these are specialty drugs for expensive conditions — they are by definition pretty rare). So it’s not as if Utah is suddenly sending people in droves across the border.

The relatively low uptake means the state has saved “only” $225,000 through the program, not the $1 million they were hoping for, per the Tribune. Still, whatever savings there are can be used to lower premiums for everybody.

This is not a sustainable model for curbing health care costs. There are concerns, like making sure the medications bought in Mexico are safe to use. Gellad pointed out to me that one of the eligible drugs, Enbrel, can increase the risk of infection, so putting those patients on a plane to travel abroad is a risk to be wary of.

But this might be the best of a bunch of bad options until the US gets its house in order.

Throughout the Tribune’s story, consultants who advise employers on international medical tourism are quoted. There aren’t many specifics, but there is clearly a whole cottage industry out there to help US patients find cheaper health care abroad. It is a subtle, or not so subtle, indictment of our current health system.

This story appears in VoxCare, a newsletter from Vox on the latest twists and turns in America’s health care debate. Sign up to get VoxCare in your inbox along with more health care stats and news.

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A report today from Motherboard highlights several email apps that sell anonymized or pseudonymised data collected from users' inboxes, including Edison Mail, Cleanfox, and Slice, adding that many users are unaware of this practice.


An excerpt from the report:

The popular Edison email app, which is in the top 100 productivity apps on the Apple app store, scrapes users' email inboxes and sells products based off that information to clients in the finance, travel, and e-Commerce sectors. The contents of Edison users' inboxes are of particular interest to companies who can buy the data to make better investment decisions, according to a J.P. Morgan document obtained by Motherboard.

Data obtained by Motherboard reveals what some of the information scraped from emails can look like, using Slice as an example:

A spreadsheet containing data from Rakuten's Slice, an app that scrapes a user's inbox so they can better track packages or get their money back once a product goes down in price, contains the item that an app user bought from a specific brand, what they paid, and an unique identification code for each buyer.

The report serves as a good reminder to review the privacy policies of apps that you use. Edison Mail is transparent about its data collection in its privacy policy, for example, noting that it uses "non-personal data such as seller, product and price extracted from information we collect" to help its Edison Trends business partners "aggregate and understand commerce trends."

Edison's privacy policy and support website also indicate that users can opt out of having their anonymized data shared with Edison Trends partners by navigating to Account > Settings > Manage Privacy in the app.

Most importantly, Edison Mail requires users to accept or decline Edison Trends data collection during initial setup of the app.

Edison emphasizes its transparency in its response to the report:

To keep our Edison Mail app free, and to protect your privacy by rejecting an advertising-based business model, our company Edison Software, measures e-commerce through a technology that automatically recognizes commercial emails and extracts anonymous purchase information from them. Our technology is designed to ignore personal and work email, which does not help us measure market trends.

Edison puts privacy first in everything we do as a company and that includes making our users aware of how we use their data in our products. You have complete control over how your information is used and we allow you to opt-out of data sharing in our research product, without impacting your app experience. We strive to be as transparent as possible about our business practices in our press communications, Edison Mail website, Edison Trends website, privacy policy, blog posts, on our app store pages, on social media, and of course, in our app itself. We do not participate in any ad targeting of our users and do not allow others to do ad targeting of our users.

To learn more, read Edison's lengthy blog post on its business model from last year.


This article, "Edison Mail Responds to Report on Email Apps Selling Anonymized Data Scraped From Inboxes" first appeared on MacRumors.com

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If he becomes president, he will have helped them sabotage the American economy and his presidency.