Citizens United and Twelve Years of Unjustified Resentment

Citizens United and Twelve Years of Unjustified Resentment

It was 12 years ago this week that the Supreme Court handed down it’s notable, even infamous ruling in Citizens United v  Federal Elections Commission. Even after 12 years those who vilify the case are completely unable to accurately describe the legal questions at play, the Court’s primary holding, or what effect this decision has had in any applicable area of law or politics.

What was the Citizens United case was about? Well, the organization Citizens United challenged a Federal Elections Commission violation they were hit with. What FEC regulation did they violate? Did they bribe a politician? Did they give donations without disclosing them? Were they spending money that originally came from foreign governments? No, Citizens United got in trouble for showing a movie.

That’s right, “Hillary: The Movie” was a 2008 political documentary produced by the nonprofit organization. The movie was offered as an on-demand video on cable before the 2008 Democratic primaries and therefore it was considered electioneering. And the money that was spent on the film qualified as an independent expenditure. According to the Bipartisan Campaign Reform Act, or McCain-Feingold, a corporation, including a nonprofit corporation, cannot advocate for or against a candidate running for office 30 days prior to a primary election, or 60 days prior to a general election. So under this law, a group of people needed the government’s permission regarding whether or not they could show a film critical of Hillary Clinton. That’s the law that the Citizens United case nullified and Citizens United is the case seemingly everyone on the left seeks to overturn.

Many of you likely didn’t know those details. Most people don’t. It’s one of the most misunderstood things in all of American politics. Most people think that this Court decision established that money is speech and that corporations are people. Amazingly enough, those two specific phrases that everyone associates with the case never actually appeared in either the decision or the dissent. Second of all, neither the concept of corporate personhood nor the connection between money and speech were ever disputed by either party to the case.

Most commenters, though not all, grounded their opposition to the Supreme Court’s ruling in two rather absolute principles; (1) corporations are not persons and therefore have no First Amendment or free speech rights and (2) money is not speech and therefore restrictions on how money is spent cannot violate the First Amendment’s free speech clause. What makes those arguments so bizarre is that none of the nine justices, including the four dissenting justices, argue either of those propositions or believe them. To the contrary, all nine justices, including the four in the dissent, agree that corporations do have First Amendment rights and that restricting how money can be spent in pursuit of political advocacy does trigger First Amendment protections. As Justice John Paul Stevens who wrote the dissent says,

“Of course, speech does not fall entirely outside of the protection of the First Amendment merely because it comes from a corporation and no one suggests the contrary.”

Justice Stevens also wrote, “that even though the expenditures at issue were subject to First Amendment scrutiny, these restrictions on these expenditures were justified by compelling state interest.” In other words, Stevens believes that spending money on speech is covered under the First Amendment. Congress just has an interest in regulating it in some situations.

You see, the legal concept of corporate personhood goes back hundreds of years. Remember, a corporation legally speaking is just a group of people. Yes, it includes large, multinational for-profit corporations like Walmart and Exxon Mobil. But it also includes labor unions, nonprofit corporations like the ACLU, (which endorsed the Citizens United decision), and the Libertarian Institute itself is a 501(c)(3) that benefits from the First Amendment protections of this case—as well as small, limited liability corporations.

Granting these entities constitutional rights is simply predicated on the idea that individuals don’t sacrifice any of their civil liberties when they form into groups. So, to pose a simple question to all those who are against Citizens United and wish to see it overturned—and anyone who claims that since corporations are not persons, they have no rights under the Constitution—do you believe the FBI has the right to enter and search the offices of the ACLU without probable cause or warrants and seize whatever they want? Do they have the right to do that to the offices of labor unions? How about your local business on the corner which is incorporated? The only thing stopping them from doing that is the Fourth Amendment if you believe that corporations have no constitutional rights, because they’re not persons. What possible objection could you voice to Congress empowering the FBI to do these things? Can they seize the property, the buildings, cars, and bank accounts of those entities without due process or just compensation? If you believe that corporations have no constitutional rights, what possible constitutional objection could you have to such laws and actions?

Now to the point of money and speech. This is just the idea that engaging in speech in any meaningful way (anything more sophisticated than standing on the street corner and yelling) costs money, therefore regulations on the money somebody can spend on speaking is regulating speech by proxy. Think about it; printing a newspaper costs money, hosting an online news show costs money, placing a television ad costs money and so forth.

Regulating the amount of money someone can spend, where they can get that money, when they can spend it, and where they can spend it undoubtedly jeopardizes the speech itself. All nine justices of the Supreme Court at the time agreed. This actually goes back to the 1976 Supreme Court case Buckley v. Valeo.

Here, the majority ruled that limits on expenditures are necessarily at odds with the First Amendment because restrictions on spending for political communication necessarily reduces the quantity of that expression. The funny thing is, the Citizens United critics acknowledge this. So for Senator Bernie Sanders or Justice Democrats this is actually part of the point of their campaign finance efforts. In their understanding, if money is speech then the more money you have, the more speech you have. And if corporations are people, people who have a lot more money than you or I (ie corporations) have a lot more speech than the rest of us.

They think that it’s unfair that some candidates can purchase more advertisements than others and that needs to be corrected in Citizens United. The dissenting justices never said that money isn’t speech. What they did argue is that Congress had a compelling state interest in regulating it on the grounds of preventing corruption. So does this money in the system cause corruption? That’s what critics emphasized, arguing the Court’s ruling will produce very bad outcomes, primarily the exacerbation of corporate influence on the republic. Even if that is true, it’s not really relevant. Either the First Amendment allows these speech restrictions or it doesn’t. In general, a law that violates the Constitution can’t be upheld because the law produces good outcomes, or because its invalidation would produce bad outcomes.

Many think that America is too far gone in terms of corporate control of politics. I think it’s a very overrated problem. But it is a problem. And our current campaign finance regime contributes to that problem. But that’s not relevant to the speech question. We also have racism in this country. And that’s a problem too, and allowing the Ku Klux Klan to hold one of their stupid rallies contributes to that problem. That doesn’t mean they don’t have the right to hold it, and invoking the state interest isn’t really persuasive either. Virtually anything can be justified by that rationale. And that argument has been used to curtail civil liberties in other contexts. So when people talk about limiting independent expenditures, they’re actually talking about limiting your ability to engage in political advocacy.

Citizens United simply doesn’t stand for what many people say it does. Their erroneous lamentations are well characterized by President Obama’s famous statement during his 2010 State of the Union Address:

“The Supreme Court reversed a century of law that I believe will open the floodgates of special interests—including foreign corporations—to spend without limit in our elections.”

In that one sentence, the former law professor made four errors that are all too common.

First, Citizens United didn’t reverse a century of law. The president was referring to the Tillman Act of 1907, which banned corporate donations to campaigns. Such donations are still banned. Instead, the decision overturned a 1990 precedent that upheld a ban on independent spending by corporations. That 1990 ruling, Austin v. Michigan Chamber of Commerce, was the only time the court allowed a restriction on political speech for a reason other than the need to prevent corruption.

Second, the “floodgates” point depends on how you define those terms. In modern times, nearly every election cycle has seen an increase in political spending, but there’s no indication that there’s a significant change in corporate spending. And the rules affecting independent spending by wealthy individuals, who are spending more, haven’t changed at all.

Indeed, much of the corporate influence peddling in Washington that has reformers concerned has nothing to do with campaign spending. Most corporations spend far more on lobbying lawmakers already in Washington than they do in political spending to choose which politicians come to Washington.

Third, Citizens United said nothing about restrictions on foreign spending in our political campaigns. In 2012, the Supreme Court summarily upheld just such restrictions.

Fourth, while independent spending on elections now has few limits, candidates and parties aren’t so lucky. Even last year’s decision in McCutcheon v. FEC, which struck down aggregate—not per‐candidate—contribution limits, only affected the relatively few bigwigs (about 600 in the 2012 cycle) who had hit the $123,200 cap. The amount that an individual can give to a single campaign remains untouched.

And so, if you’re concerned about the money spent on elections—though Americans spend more on Halloween—the problem isn’t with big corporate players. Exxon, Halliburton, and all these “evil” companies (or even “good” ones) aren’t suddenly dominating the conversation. They spend little on political ads because they don’t want to alienate half of their customers.

On the other hand, smaller players now get to speak freely: groups such as the National Federation of Independent Business, Sierra Club, the American Civil Liberties Union, and the National Rifle Association. Even if we accept “leveling the playing field” as a proper basis for regulation, the freeing of associational speech achieves that goal.

People don’t lose rights when they get together, be it in unions, advocacy groups, private clubs, for‐profit enterprises or any other group.

By removing limits on independent political speech—spending by people unconnected to candidates and parties—Citizens United weakened the government’s control of who can speak, how much, and on what subject. That’s a good thing.

News Roundup 1/27/2022

News Roundup 1/27/2022

Covid

  • The Navy has now removed 45 sailors for failing to take the covid vaccine. [Link]
  • The US donates 900,000 Pfizer covid vaccine doses to Laos. [Link]
  • The US will send two million Pfizer covid vaccine doses to Kenya and Morocco. [Link]

US News

  • In the first half of 2021, Twitter received fewer requests from governments for information on users but complied with the requests more often. When US law enforcement made informal requests for information, Twitter gave the info 68% of the time. [Link]
  • The Pentagon wants to accelerate its development of hypersonic missiles. [Link]
  • The Army will begin testing anti-aircraft lasers on Strykers. [Link]

Latin America

  • One body was found and 38 people are missing after a migrant boat capsized off the Florida coast. [Link]
  • The Coast Guard intercepted nearly 200 Haitians attempting to sail to the US. [Link]
  • Cuba asks the US to restaff its embassy after a CIA report on ‘Havana Syndrome’ found no diplomats were attacked by a foreign power. [Link]

Russia

  • Some large US companies lobby the Biden administration and Congress for waivers to continue business in Russia if more sanctions are imposed. [Link]
  • Germany offers Ukraine 5,000 military helmets. Some Ukrainian politicians felt insulted by the German aid. [Link]
  • Secretary of State Antony Blinken says Americans should strongly consider leaving Ukraine. [Link]
  • Ukraine says the number of Russian troops near its border is insufficient for a large-scale invasion. [Link]
  • Ukraine and Russia agreed to uphold the ceasefire in the Donbas during ‘Normandy format’ talks that included Germany and France. [Link] 
  • State Department Spokesperson Ned Price says Nord Stream 2 will not move forward if Russia invades Ukraine. [Link]
  • The US delivers its written response to Russia’s security proposal. [Link]

China

  • China says it is dissatisfied that the US is allowing embassy staff to leave China because of strict lockdowns. [Link]

Korea

  • North Korea test-fires two short-range ballistic missiles. [Link]

Middle East

  • Jeff Flake became the US Ambassador to Turkey. [Link]
  • US special forces continue to have an active role in the fight against IS. [Link]
  • The SDF claims to have regained control of a prison that holds alleged IS members and 700 children after IS captured the facility six days ago. At least 70 were killed in the fighting. [Link]
  • The Houthi threaten to attack The Dubai Expo. [Link]

Africa

  • France leads a group of 15 countries demanding Mali allow Danish troops to remain in Mali. [Link]
  • At least 20 Congolese soldiers were killed in an attack by M-23. [Link]
News Roundup 1/27/2022

News Roundup 1/24/2022

Covid

  • A federal judge in Texas blocks Biden’s vaccine mandate for federal employees. [Link]
  • The US donates three million covid vaccines to four African countries through covax. [Link]
  • The US donates nearly two million Pfizer covid vaccine doses to Egypt through Covax. [Link]

Haiti

  • The judge overseeing the investigation into the assassination of President Moise quits. [Link]

Russia

  • The Biden administration notified Congress of its plan to transfer Mi-17 helicopters to Ukraine. [Link]
  • The US delivers 90 tonnes of weapons – from a December aid package – to Ukraine. [Link]
  • The Baltic States’ arms transfers to Ukraine include Javelin anti-tank missiles and Stinger anti-aircraft missiles. [Link]
  • Fewer than one in six Americans support sending US troops to Ukraine to prevent a Russian invasion. [Link]
  • The US will allow non-essential staff at the embassy in Ukraine to leave the country. The US ordered the family of staff to leave the country. [Link]
  • Secretary of State Antony Blinken met with Russian Foreign Minister Sergey Lavrov in Vienna. The US agreed to give Russia a written response to its security proposal. The two diplomats will meet again next week. [Link]
  • Blinken asked Russia to release two US citizens who were convicted of crimes in Russia and serving prison sentences. [Link]
  • Germany, France, Ukraine, and Russia will send political advisers to Paris for talks this week. [Link]
  • German Chancellor Olaf Scholz declined an invitation to speak with Biden about the Ukraine crisis. [Link]
  • The UK says Russia is planning to install a new government in Ukraine. [Link]
  • Blinken rejects calls to sanction Russia now. He explained that sanctions cannot work as a deterrent if they are already in place. [Link]
  • Biden is considering applying the ‘foreign direct product rule’ – cutting off semiconductors and related technology – to Russia in response to an invasion of Ukraine. [Link]
  • Biden is considering plans to deploy between 1,000 and 5,000 troops to Eastern Europe and the Baltic States. [Link]
  • Blinken says there are a number of areas for the US and Russia to work together. [Link]

China

  • Taiwan reports 39 Chinese military aircraft entered its Air Defense Identification Zone. [Link]

Afghanistan 

  • The Taliban will meet with officials from Western governments in Norway. [Link]
  • ISIS-K claims it is behind a bombing in Afghanistan that killed at least six. [Link]

Iran

  • Shipments of thinning agents from Iran have allowed Venezuela to double its oil exports over the past year. [Link]
  • US and European officials warn time is running out in Iran nuclear talks. [Link]
  • Iran and Russia are in talks to upgrade Iran’s nuclear power plant. [Link]
  • The US Envoy to Iran Robert Malley says it is unlikely the US will return to the nuclear deal if Iran continues to hold four American prisoners. [Link]

Yemen

  • Saudi Arabia bombed a Houthi-run prison in Yemen, killing at least 80 people. [Link]
  • Shards from an American-made bomb were found at the prison. [Link]
  • The US claims it intercepted a ship transporting Urea-based fertilizer in the Gulf of Oman. The US alleges it was headed to the Houthi in Yemen. [Link]

Middle East

  • Israel’s cabinet voted to launch an investigation into the “submarine affair” that could implicate former prime minister Netanyahu. [Link]
  • The UAE bans civilians from using drones. [Link]
  • The UAE says it intercepted two ballistic missiles. [Link]
  • Eleven Iraqi soldiers were killed in an IS attack. [Link]
  • Nearly 200 people have been killed in three days of fighting between the US-backed SDF and IS for control over a prison in Syria. [Link]

Africa

  • A top Ethiopian military official says his army will attempt to eliminate the Tigrayan People’s Liberation Front. [Link]
  • Aid groups warn the people of Mali will pay the price for the sanctions recently imposed on the country. [Link]
  • A French soldier was killed in Mali. [Link]
  • Reports from Burkina Faso say several soldiers have mutinied against the government and a possible coup is underway. [Link]
From GITMO to the ‘Killing Machine’

From GITMO to the ‘Killing Machine’

Twenty years ago, on January 11, 2002, the prison at Guantánamo Bay (GITMO) admitted its first round of post-9/11 terrorist suspects. Two recent films, The Mauritanian (2021) and The Forever Prisoner (2021), chart parts of the ugly history of the facility, during which acts of torture were rebranded by officials as “enhanced interrogation techniques” (EIT) and inflicted on at least 119 of the 780 men held at GITMO over the course of the Global War on Terror. The story of Mohamedou Ould Slahi, who was cleared for release in 2010 but remained incarcerated for another seven years as the Obama administration appealed the decision, is relayed in director Kevin Macdonald’s film The Mauritanian. The story of Abu Zubaydah, who remains incarcerated still today, is covered by Alex Gibney’s film The Forever Prisoner.

Many other men were abused in prisons such as Abu Ghraib in Iraq and Bagram in Afghanistan, in addition to an array of “black sites” erected around the world in collaboration with “torture-friendly” governments. The CIA’s EIT program was commissioned and approved at the highest levels of the U.S. government, and deemed legal by Deputy Assistant Attorney General John Yoo. The practices included waterboarding (which mimics drowning), slamming detainees’ heads against the wall, rectal feeding, confining naked suspects in small boxes along with insects, depriving them of sleep for days on end, and forcing them to endure extremely cold temperatures while naked. Some of the victimized men died, and while a number of deaths were characterized by the powers that be as suicides, at least one prisoner was acknowledged to have died of hypothermia as a direct result of the conditions he was forced to endure.

The nightmarish series of abuses to which these men were subjected were claimed by the architects and orchestrators of the EIT program to be supported by “the science” and sure to save American lives. At least twenty-six of the victims of torture held in GITMO were later determined to have been captured in error in what were most charitably interpreted as overzealous efforts to thwart the next terrorist attack. Bounty hunter greed and/or penury appears also to have played a significant role in the erroneous capture of thousands of innocent men throughout the War on Terror.

A thorough investigation of classified CIA documents eventually culminated in the 2014 release of the “Report of the Senate Select Committee on Intelligence Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program.” This 712-page document, which has come to be referred to colloquially as “The Torture Report,” includes a 500+ page executive summary of the thousands of pages of the original report instigated by committee chair Senator Diane Feinstein and prepared over a period of several years by her staffer Daniel Jones, among others. The investigation was undertaken in response to the revelation that the CIA had destroyed films of some of the detainees being victimized. The story of how The Torture Report was commissioned and eventually released is relayed in the 2019 film The Report (directed by Scott Z. Burns), which offers shocking insights into the lengths to which the CIA—including the director at the time of the report’s release, John Brennan—were willing to go in order to absolve themselves from allegations of wrongdoing.

Faced with the findings of the report, some of those involved, including former Vice President Dick Cheney and former CIA Deputy Director for Operations José Rodriguez, continued to deny that “enhanced interrogation techniques” were morally repugnant forms of torture. Others employed by the U.S. government during that period, including John Brennan, claimed that they had expressed moral reservations about the program, although there is no written evidence to that effect, and the director of the CIA at the time, George Tenet, has publicly denied that he was ever approached with such objections. The EIT program proved in any case to be tactically nugatory, at best.

According to the report’s authors, none of the ghastly procedures deployed resulted in actionable intelligence used to thwart terrorist attacks. Some of the men were entirely innocent and so obviously had no information to share; others told interrogators only information which had already been obtained from other sources or which had already gone stale; and some of the men simply made up stories so as to call a halt to the torture. Most notoriously, the false claim that Saddam Hussein was in cahoots with Al Qaeda was obtained through torture and used to rationalize the misbegotten 2003 war on Iraq.

In response to the Senate committee’s report, President Obama, to his credit, publicly admitted that “We tortured some folks,” and issued Executive Order 133491, “Ensuring Lawful Interrogations.” The order references the Geneva Conventions and explicitly prohibits the barbaric activities perpetrated by U.S. government employees and contractors under the guise of “enhanced interrogation techniques.” Notwithstanding Obama’s rhetorical efforts to restore the image of the United States as a beacon of human rights, the president never delivered on one of his primary campaign promises, to close the prison at Guantánamo Bay. He also declined to prosecute any of the torturers. Obama did stop sending new prisoners to the facility, and some of the remaining prisoners were released and sent to other countries for processing and rehabilitation.

The primary obstacle to Obama’s closure of GITMO was claimed by his apologists to be the political opposition he encountered to the prospect of suspects’ standing trial in the United States, which was thought by some to risk the increased incidence of terrorist attacks in the homeland. Concerns were also raised that some of the prisoners may have been made more dangerous by the torture to which they were subjected. Indeed, it was thought by some that even men who were not previously connected to terrorist groups, having been captured and imprisoned on the basis of faulty intelligence, may have been radicalized by the dramatic proof of the evil nature of the U.S. empire which they themselves had personally witnessed.

The Guardian recently reported that some of the men removed from GITMO and relocated to other countries have been stuck in legal limbo for years, unable to return to normal life because they have not been cleared for release by the governments of those countries. Others have found themselves unemployable and therefore unable to reassimilate into civil society. But they are still alive, which cannot be said of the many suspects pegged during the eight years of Obama’s presidency and labeled “Enemy Killed in Action” (EKIA) after having been dispatched by missiles launched from drones on the basis of purely circumstantial evidence of possible future complicity in possible future terror plots. We have Daniel Hale, the drone program whistleblower now serving a federal prison sentence, to thank for sharing documents revealing that suspects were effectively defined by the Obama administration as guilty until proven innocent before being summarily executed.

A number of politicians in addition to Obama, including the instigator of the Torture Report, Senator Dianne Feinstein, and Senator John McCain, who was a prisoner of war (POW) in Vietnam, spoke out against torture, agreeing with Obama that “That’s not who we are.” In addition to straightforward moral concerns about abusing human beings, some politicians and military officers aired concerns that such practices could also endanger U.S. troops, who when taken prisoner might be subjected to similarly cruel techniques.

Shockingly, however, some of the most vociferous denouncers of torture, including Senators Feinstein and McCain, continued enthusiastically to support the far more ghastly practice of summary execution without trial of suspects, often unnamed, on the basis of purely circumstantial evidence, even when the targets were neither bearing arms nor located in war zones. The Obama administration itself reported in 2016 that they had ended the lives of between 2,372 and 2,581 of such men “outside areas of active hostilities,” in countries such as Yemen and Pakistan (not the active war zones of Afghanistan, Iraq, or Syria) where there were no uniformed U.S. soldiers on the ground to protect.

Having spoken out about the crimes committed by the Bush administration, Obama opted not to take as prisoners the suspects identified by his own administration using the very same forms of evidence which had served as the basis for capturing and imprisoning thousands of men during the first eight years of the War on Terror. It is therefore essential to observe here that 732 of the 780 men incarcerated at GITMO were eventually released without charges. Because the types of circumstantial evidence being used to peg suspects did not change under Obama, and continued to include intelligence obtained from bribed informants (human intelligence or HUMINT), and cellphone SIM card data and drone video footage (signals intelligence, or SIGINT), we have grounds for believing that many of the thousands of men executed rather than captured during Obama’s presidency, were, too, innocent.

President Obama had a choice to make in the light of the revelation that longterm detention and torture did not yield actionable intelligence. But rather than capture suspected militants and treat them humanely, detaining them in circumstances conducive to proper judicial processing, respecting their rights and acknowledging the very real possibility that they might in fact be innocent, his administration instead defined them as guilty until proven innocent and executed them using lethal drones.

Mentored by his drone-killing czar, John Brennan, Obama became known as the “drone warrior president,” who revved up a veritable “killing machine” to eliminate nearly all of the terror suspects identified as such during his eight-year term as president. Obama and Brennan (promoted to director of the CIA in 2013), opted to use lethal drones to execute suspects on hit lists generated by a vast network of government employees and private contractors who collected and analyzed HUMINT and SIGINT. These hit lists were reviewed by the president himself during what were termed “Terror Tuesday” meetings in which nominees for execution were evaluated on the basis of flash card presentations.

When the Obama administration located and executed Al Qaeda leader Osama bin Laden in 2011, the president was praised by many U.S. citizens. Later that year, he proceeded to act on the political capital he had garnered to take the drone program to a qualitatively new level, executing even U.S. citizens without indictment or trial. He authorized the killing of not only Anwar al-Awlaki, a formerly moderate Muslim cleric arguably radicalized by the War on Terror itself, and Samir Khan, a propagandist, but also, two weeks later, al-Awlaki’s sixteen-year-old son, Abdulrahman, along with a group of his teenage friends.

Obama himself never deigned to explain why Abdulrahman al-Awlaki, a teenager not suspected by anyone of terrorism, was eliminated, but it seems unlikely to have been a “coincidental” targeting error. In fact, Robert Gibbs, Obama’s press secretary at the time, offered the following garbled answer when asked about the U.S. government’s killing of Abdulrahman al-Awlaki:

I would suggest that you should have a far more responsible father if they are truly concerned about the well being of their children. I don’t think becoming an al Qaeda jihadist terrorist is the best way to go about doing your business.

The gravity of this normalization of summary execution of suspects and their associates (including family members) appears to have escaped altogether those who throughout the Trump presidency waxed nostalgically about the “good old days” when mild-mannered, anti-torture Obama was president. On the campaign trail in 2016, Trump vowed not only not to close GITMO, but also that he would fill up the facility with “bad dudes.” In reality, once president, Trump simply followed Obama’s lead, putting his newly appointed defense secretary, James “Mad Dog” Mattis on a very long leash and essentially allowing the killing machine—not only the drone program but also special operations forces—to eliminate anyone anywhere suspected of connections to “bad dudes.” Trump, like Obama, killed one of the children of Anwar al-Awlaki. In Trump’s case the victim was an eight-year-old girl, Nawar al-Awlaki, who was destroyed by U.S. special forces during a raid in Yemen, where both her father and her brother had been killed by drones.

Predictably enough, the norms governing state homicide were loosened yet again when President Trump, in his usual swagger-filled attempt to outdo his predecessor, openly vaunted his assassination of Qassim Soleimani, an Iranian general who was located in Iraq at the time. Before the War on Terror, assassination was widely regarded, even by U.S. officials, as illegal. President Bush may bear primary responsibility for the torture program, but we have President Obama to thank for having normalized the premeditated, intentional execution of persons believed by their killers to be dangerous, even when they are unarmed and located outside areas of active hostilities. This sleight of hand was accomplished through putting the CIA in charge of the drone program, ironically the very organization which had presided over the practices denounced in The Torture Report.

In the case of summary execution by drone of suspects, the CIA operated for years under its usual cloak of secrecy, allowing it to evade congressional oversight. As many critics of the drone program have observed (myself included), the decision to enlist the CIA to run the killing machine outside areas of active hostility was in all likelihood an effort to evade accusations of war crimes, to which the military itself would have been subject. In abject violation of the Geneva Conventions, the targets of drone strikes are not provided with the opportunity to surrender or lay down their arms, nor to defend themselves against allegations based on faulty intelligence. In other words, this slick rebranding of assassination as “targeted killing” also violates the Universal Declaration of Human Rights, according to which suspects are to be considered innocent until proven guilty. Instead, the “principle” governing the premeditated, intentional execution of specific persons at the caprice of the killers is tantamount to “Everything is permitted.”

Leaders rarely cede power unless forced to do so, and U.S. military leaders have long aimed to maximize both efficiency and lethality, so it should come as no surprise that President Joe Biden has taken up the drone-killing mantel to continue fecklessly on with the same policies vaunted by Obama as “smart war.” One horrifying example of the general laxity of standards in the use of lethal force by the U.S. government, regardless of who is in charge, was the incineration on August 29, 2021, of ten civilians in Kabul, Afghanistan, on the basis of intelligence according to which people who drive white Toyota Corollas and move stuff around town might be planning to bomb the airport. A Pentagon investigation into the case concluded that no wrongdoing had been committed, as the perpetrators had abided by standard protocols and followed their rules of engagement. As a direct result of the manner in which the drone program has evolved through four presidencies, the impunity long enjoyed by the CIA for what once were plausibly deniable acts of lawless killing has in this way been transferred to the military as well.

Torture is inhumane, barbaric, and immoral. It harms the victims both physically and psychologically, and it degrades the perpetrators, who are corrupted by their atrocious treatment of fellow human beings. We should accordingly welcome films such as The Mauritanian, The Forever Prisoner, and The Report, which aim to illuminate some of the many crimes committed in our names and using our tax dollars. Let us not, however, be distracted by the heartfelt denunciations of torture by some government officials from the even more egregious practices which some of them continue to champion.

As objectionable as torture may be, its perpetrators can still be conceptualized as having chosen misguided means to the acquisition of what they believed would be actionable intelligence needed to thwart imminent terrorist attacks. In contrast, the summary execution of unarmed suspects located outside areas of active hostilities, and identified as such on the basis of purely circumstantial evidence, serves no tactical or strategic aim whatsoever. It is evil, pure and simple: the intentional, premeditated annihilation of human beings denied all human rights, from the right to surrender, to the right to defend themselves against false claims that they have committed crimes.

Substituting drone killing of suspects for longterm detention and torture may seem superficially less objectionable to the untutored populace, but as is so often the case, appearance diverges starkly from moral reality. Through linguistic neologism and rebranding, conjoined with the development of technologies which have made it possible to kill anyone anywhere, through the push of a button from thousands of miles away, the atrocious practice of torture has been supplanted by the intrinsically evil and tyrannical practice of summary execution without indictment or trial. Is this who we are?

News Roundup 1/27/2022

News Roundup 1/14/2022

Covid

  • The Supreme Court strikes down the Biden requirement that employers mandate the covid vaccine or mask and test employees weekly. The court approved Biden’s requirement for all healthcare staff at federally funded facilities to get the covid vaccine. [Link]
  • Biden plans to double the number of covid tests the US is buying to one billion. The administration will announce plans on a program to distribute N-95 masks for free. [Link]
  • The Pentagon signs contracts to buy 380 million covid tests. [Link]
  • The Marines granted the Pentagon’s first two religious exemptions. Over 18,500 soldiers have applied. [Link]
  • Poorer nations rejected over 100 million doses of the covid vaccine in December. Most were rejected due to their short shelf life. [Link]

US News

  • A Florida resident was sentenced to years in prison for exporting rebreathers to Libya. Another man was sentenced to five months in prison for involvement in the crime. [Link]
  • Former Google employees are landing key posts in the Biden administration. [Link]
  • The USS Carl Vinson suffered four “Class A mishaps” – an incident causing at least $2.5 million in damages – in the final six weeks of 2021. [Link]
  • The Pentagon will allow a special operations soldier to retire with a written reprimand after allegedly sexually assaulting a Thai translator. [Link] 

Russia

  • Ted Cruz’s Nord Stream 2 sanctions bill fails in the Senate. [Link]
  • Ukraine spent over $1 million on lobbying in the US. [Link]
  • The CIA hired paramilitaries to train Ukrainian forces in the US.  [Link]
  • Russia says it does not see grounds for further talks with the US and NATO unless the US shows flexibility. [Link]
  • Russia says it could deploy troops to Venezuela or Cuba. [Link]
  • National Security Adviser Jake Sullivan claims the chance that Russia invades Ukraine is high. [Link]
  • Troops from the Russian-led CSTO begin withdrawing from Kazakhstan. [Link]

China

  • The US moved several warships into the South China Sea. [Link]

Korea

  • North Korea test-fired two missiles. [Link]

Afghanistan 

  • The UN calls on the US to release frozen Afghan funds. [Link]

Middle East

  • 110 Republican Congressman issued a letter calling for Biden to exit talks with Iran and increase pressure. [Link]
  • Four rockets targeted the US Embassy in Baghdad. One of the rockets injured three civilians. [Link]
  • Three people were killed in Syria in two suicide bombings near the Turkish border. [Link]

Africa

  • The EU will sanction Mali. [Link]
  • Sweden will remove its 400 troops from Africa’s Sahel. Sweden has been supporting France’s war in Mali. [Link]
  • One police officer and one protester were killed during protests in Sudan. [Link]
Biden’s Vaccine Mandates Go to Court

Biden’s Vaccine Mandates Go to Court

You could be forgiven for assuming that just because Joe Biden began his administration unequivocally saying the federal government has absolutely no constitutional authority to enact vaccine mandates, as well as the spectacular failure of his attempt to weasel around that pesky ‘ol Constitution by making it a workplace regulation enforced by OSHA, that President Biden would have finally learned his lesson and stopped trying to use his monopoly on force to subject as many Americans as possible to non-consensual medical treatments…

Well think again.

This past week a divided panel of the U.S. Court of Appeals for the Sixth Circuit rejected the Biden administration’s request for a stay of a lower court injunction barring enforcement of a COVID-19 vaccination requirement for employees of federal contractors in Ohio, Kentucky and Tennessee in Commonwealth of Kentucky v. Biden.

Here is how the court summarized its opinion.

In 1949, Congress passed a statute called the Federal Property and Administrative Services Act (“Property Act”) to facilitate the “economical and efficient” purchase of goods and services on behalf of the federal government. See 40 U.S.C. § 101. The Property Act serves an uncontroversial purpose; who doesn’t want the government to be more “economical and efficient”? Yet that laudable legislative-branch prescription, in place for the last seventy years, has recently been re-envisioned by the executive. In November 2021, the Safer Federal Workforce Task Force, under the supposed auspices of the Act, issued a “Guidance” mandating that the employees of federal contractors in “covered contract[s]” with the federal government become fully vaccinated against COVID-19. That directive sweeps in at least one-fifth of our nation’s workforce, possibly more. And so an act establishing an efficient “system of property management,” S. Rep. 1413 at 1 (1948), was transformed into a novel font of federal authority to regulate the private health decisions of millions of Americans.

In response, three states (Ohio, Kentucky, and Tennessee) and two Ohio sheriffs’ offices filed suit. They collectively alleged that nothing in the Property Act authorizes the contractor mandate, that the contractor mandate violates various other federal statutes, and that its intrusion upon traditional state prerogatives raises serious constitutional concerns under federalism principles and the Tenth Amendment. The district court agreed. It enjoined enforcement of the contractor mandate throughout Ohio, Kentucky, and Tennessee. It also denied the subsequent motion of the federal-government defendants to stay the injunction pending appeal. The government now comes to us with the same request. But because the government has established none of the showings required to obtain a stay, we DENY such relief.

Kentucky v. Biden is one of several pending challenges to the federal contractor mandate (which is not to be confused with the CMS mandate for Medicare and Medicaid providers or the OSHA vaccine-or-test ETS, both of which were heard before the Supreme Court on Friday). In this case, the lower court only issued an injunction in the plaintiff states. In one of the parallel cases, however, a district court entered a nationwide injunction against the vaccine requirement for federal contractors, and the U.S. Court of Appeals for the Eleventh Circuit refused to stay that order, but ordered expedited briefing on the merits.

Just last week, as part of a response to the new Omicron variant, Biden’s Vaccine Czar Anthony “The Science” Fauci has called for vaccine mandates to be put in place for all domestic air travel.

Although requiring vaccination of airline passengers ostensibly would be aimed at making air travel safer, Fauci sees it as a way to boost the U.S. vaccination rate. The Biden administration sees its vaccination rule for private employers, which ostensibly is aimed at addressing a workplace hazard, the same way.

While new federal government mandates meant to coerce citizens into forced medical treatments, entirely against their will, for such privileges as buying food, going out to eat, and the ability to travel are finally beginning to spark the question among citizens about whether or not this is a reasonable responses to a new variant that has quite literally only killed one person thus far (A man down in Harris County, Texas), there are good reasons to be optimistic that the courts will continue to see these mandates as the unlawful farce that they are and continue striking them down.

And all it took was the loss of our right to freedom of speech for expressing the “wrong opinion” on things like vaccine mandates, the loss of the right of free association (to choose when and under what circumstances we wish to see friends, family, business associates or medical professionals), the right to contract our labor as we see fit and of course freedom of movement.

The U.S. Court of Appeals for the 5th Circuit, which stayed the ETS the day after it was published, said it “grossly exceeds OSHA’s statutory authority.” But after the challenges to the mandate were consolidated and assigned to the U.S. Court of Appeals for the 6th Circuit, a divided three-judge panel lifted the 5th Circuit’s stay, which is how the case ended up at the Supreme Court.

OSHA’s sudden decision to invoke its “emergency” powers, nearly two years after the pandemic began and a year after vaccines became available, seems dubious. So does its preference for vaccination, which unlike other workplace safety measures is not limited to the workplace.

In fact OSHA’s estimate of its rule’s benefits is based on deaths prevented by vaccination of working-age Americans, regardless of where transmission occurs. The vaccine-or-testing requirement, by contrast, applies to 84 million employees—two-thirds of the work force—in myriad industries and workplaces, with little regard to how COVID-19 risk varies across them. And it exempts companies that employ fewer than 100 people, as if the risk of COVID-19 transmission disappears below that threshold.

But these queer distinctions don’t end there. According to the government, middle-aged workers who are vaccinated face about the same COVID-19 risk as younger workers who are not vaccinated. According to OSHA, however, COVID-19 poses a “grave danger” to the latter group but not to the former.

It seems the Biden administration’s best efforts to obfuscate a general vaccine mandate as a workplace safety measure makes for an unconvincing disguise—and the chance that it will fool anybody is about as likely as the chance that anybody will die from contracting the omicron variant.

January 6th: A Turgid Anniversary

January 6th: A Turgid Anniversary

Last year’s Jan. 6 clash at the Capitol may be the most politically exploited ruckus in American history. Team Biden is doing a victory lap to mark the anniversary, but the feds continue covering up key information regarding that day’s events. Democrats are canonizing a false version of history to change voting laws to perpetuate many of the shoddy if not shady practices that tarnished the 2020 election.

After the fracas a year ago, Democratic members of Congress made ludicrous claims about the perils they faced that day. Rep. Alexandria Ocasio-Cortez (D-NY) said, “We came close to half of the House nearly dying” from the attackers. But the only person gunned down that day was 35-year-old Air Force veteran Ashli Babbitt, shot at point-blank range by a Capitol policeman.

While heavy penalties are justified for protesters who physically attacked police, President Joe Biden and his media allies portray clashes that day as an insurrection seeking to destroy American democracy. But Reuters reported in August that the FBI had found little or no evidence that the attackers were part of an “organized plot to overturn the presidential election,” with almost all protesters “one-off cases” unrelated to a grand scheme.

Read the rest of this article at The New York Post

Inflation Is Robbing Your Pocket, Whether You Realize Or Not

Inflation Is Robbing Your Pocket, Whether You Realize Or Not

All across the economic dashboard, inflation indicators are blinking red. Most recently, the Personal Consumption Expenditures (PCE) index, calculated by the Bureau of Economic Analysis, rose 5.7% from November 2020 to November 2021. That’s the biggest year-over-year surge since September 1983.

Many mistakenly attribute today’s rising prices solely to supply chain woes, and government officials are happy to fertilize that mythology—as Kamala Harris reflexively did last week in her rambling, didn’t-do-the-reading response to a question from Margaret Brennan:

The truth is, in the words of economist Milton Friedman, “inflation is always and everywhere a monetary phenomenon.” In other words, today’s rising prices are primarily the result of the Federal Reserve’s relentless creation of new money, which serves to facilitate the government’s multi-trillion dollar deficit-spending addiction.

Note, the Fed’s rampant money creation facilitates deficit spending, but, in the end, it doesn’t actually pay for it. Instead, it functions as a massive scam that hides the price of deficit spending by ultimately passing it on to all of us via inflation.

While the new-money effect on prices is compounded by supply chain failures, those failures are themselves driven in part by higher demand fueled by the extra cash in circulation.

Manipulating Markets, Burying a Tax

When the government spends more than it takes in, the difference is funded by issuing Treasury bonds, bills, and notes.

In a rational, un-manipulated market, a profligate spender that’s already more than $29 trillion in debt would have to pay high interest rates to issue a new set of IOUs. Today’s 10-year Treasury rate, however, is just 1.5%. That utterly irrational rate is the direct result of the Federal Reserve’s manipulation of the Treasury debt market.

Specifically, the Fed routinely buys enormous amounts of Treasury debt, artificially pushing the interest rate down in the process. Because it’s prohibited from buying Treasury debt directly, the Fed contravenes the spirit of the law by buying it from large investment banks like Goldman Sachs and JP Morgan Chase—who profit from their role in what’s close to a money-laundering scheme.

What’s most critical to understand is that the Fed buys all those Treasury securities with new money created out of thin air. Unlike in earlier times, U.S. dollars aren’t backed by anything at all. Pouring trillions more of them into the economy can’t create enduring wealth, it can only sap the value of money that’s already in circulation.

Fed-created inflation thus functions as a stealth tax: Rather than taking your money directly and openly, the government reduces the value of your money through the opaque tax we call inflation.

As Friedman said, “Inflation is taxation without legislation.” Inflation is also taxation without any prescribed maximum rate. More ominously, nobody has any real control over the rate.

Once rightly charged with maintaining the value of the dollar—a mission it failed in spectacular fashion—the Fed now explicitly seeks to erode its value by 2% a year. However, with inflation accelerating well beyond that pace, it’s clear Fed officials appointed to play god with the economy have once again lost control, just as they’ve done through the cycle of booms and busts that have led us to this point.

Inflation Tax Hits Low-Income Americans Harder

Though inflation is a tax we all pay, the burden doesn’t fall evenly. With inflation assaulting American wallets at the highest pace in nearly four decades, a recently-published analysis finds that it’s taking a greater toll on lower-income Americans.

The study by Penn Wharton Budget Model found the average household will have had to spend $3,500 more in 2021 to achieve the same level of consumption as in 2020. However, “since lower-income households spend more of their budget on goods and services that have been more impacted by inflation…lower-income households will have to spend about 7 percent more while higher-income households will have to spend about 6 percent more,” wrote Zheli He and Xiayue Sun.

That’s not the only way the Fed printing press contributes to wealth inequality:

  • Since there’s a lag between money creation and the resulting price inflation, those who get to use the new money first have a leg up—and Wall Street investment banks and major government contractors are among the first in line.
  • The Fed’s creation of money and artificially low interest rates also disproportionately benefits the wealthiest Americans by inflating the value of their invested assets.

The Fed Has Painted Itself into a Corner

With inflation heating up, the Fed and its high-spending DC co-conspirators have boxed themselves in.

If the Fed stops printing dollars that finance runaway federal spending and force interest rates down, inflation may ease but the deficit will mushroom even larger due to higher interest rates on Treasury debt. Higher rates will also affect home and car buyers. Markets will crash and the economy too.

“Either the government is going to have to supply the money or the spending is not going to happen,” said economist and Euro Pacific Capital CEO Peter Schiff on his podcast. “So, either we have a recession, or we have even worse inflation. Because if the government has to print more money to fund more stimulus spending so that consumers can afford to keep buying stuff at higher prices, well then we have an even bigger inflation problem on our hands.”

Though it would cause a major economic disruption, the healthy, long-term alternative is for Congress to embrace fiscal responsibility by sharply reducing the scope of federal government to what’s actually prescribed in the Constitution, slashing a couple trillion dollars from the budget, ending America’s sprawling imperial presence abroad, making the dollar real money again, and dramatically reforming if not eliminating the Federal Reserve.

Don’t count on reelection-minded politicians to do any of that anytime soon. Those measures may someday be adopted, but only after a major calamity gives America no alternative.

This article was originally featured at Stark Realities and is republished with permission.

12/30/21 Daniel Larison: US Militarism Should Have Died With the Soviet Union

Scott is joined by Antiwar.com contributing editor Daniel Larison to discuss his most recent piece. Larison argues that the period following the peaceful breakup of the USSR was the best moment for the U.S. to shed the militaristic blob it had built up in the name of fighting communism. Instead, the military-industrial-congressional complex scrambled to find a new enemy. And the next thirty years of meddling in the Middle East and Eastern Europe have resulted in today’s messy geopolitical status quo. 

Discussed on the show:

  • “US Militarism Should Have Died With the Soviet Union” (Antiwar.com)
  • “The Looming Threat of a Nuclear Crisis with Iran” (The New Yorker)

Daniel Larison is a contributing editor at Antiwar.com, contributor at the Quincy Institute for Responsible Statecraft and former senior editor at The American Conservative magazine. Follow him on Twitter @DanielLarison or on his blog, Eunomia.

This episode of the Scott Horton Show is sponsored by: The War State and Why The Vietnam War?, by Mike Swanson; Tom Woods’ Liberty Classroom; ExpandDesigns.com/Scott; EasyShip; Free Range Feeder; Thc Hemp Spot; Green Mill Supercritical; Bug-A-Salt and Listen and Think Audio.

Shop Libertarian Institute merch or donate to the show through Patreon, PayPal or Bitcoin: 1DZBZNJrxUhQhEzgDh7k8JXHXRjYu5tZiG.

TGIF: Pursue Your Happiness and Forget the Rest

TGIF: Pursue Your Happiness and Forget the Rest

How about we do something novel in the new year? Let’s stop worrying about the stuff most politicians, pundits, and activists want us to worry about and instead think about ourselves, our families, our friends, and whatever communities we choose to be part of. Let’s forget about “the country” and the rest of the world. Let’s individually pursue happiness.

All I’m saying is that it’s finally time for the politicians, bureaucrats, and know-it-all intelligentsia, left or right, to get out of the way and let us set our own agendas.

Too self-centered? Well, too bad. Much evil results from people failing to mind their own business. But what I have in mind does not involve wishing other people ill or seeing life as a zero-sum game in which you can win only if others lose. On the contrary, we benefit from other people’s, including distant strangers’, good fortune because at the very least it opens up opportunities for mutual gains from trade. (“The division of labor is limited by the extent of the market,” the wise Adam Smith pointed out some time ago.) In reality, it opens up so much more.

There’s little chance this sort of world would result in what is often stigmatized as “selfishness.” The vast majority of us understand that truly caring about oneself necessarily means caring about other people in a variety of proper ways. In fact, the person who claims to care only about himself actually cares little even about himself. That’s why mutually beneficial social arrangements have been bottom-up affairs. As Thomas Paine recognized in The Rights of Man:

Great part of that order which reigns among mankind is not the effect of government. It has its origin in the principles of society and the natural constitution of man. It existed prior to government, and would exist if the formality of government was abolished. The mutual dependence and reciprocal interest which man has upon man, and all the parts of civilised community upon each other, create that great chain of connection which holds it together. The landholder, the farmer, the manufacturer, the merchant, the tradesman, and every occupation, prospers by the aid which each receives from the other, and from the whole. Common interest regulates their concerns, and forms their law; and the laws which common usage ordains, have a greater influence than the laws of government. In fine, society performs for itself almost everything which is ascribed to government.

Yet the policy elite and much of the ideological left and right don’t want us to understand this. They have other plans for us. They always do, don’t they? So they can’t let us get it into our heads that their agendas are illiberal impositions.

The ruling establishment and its mouthpiece media try to keep us agitated by a variety of threats. As Ted Galen Carpenter notes,

In recent years, U.S. executive branch officials and members of Congress from both political parties have routinely portrayed Russia or China (and frequently both countries) as existential threats to the United States. It also is becoming increasingly common to find news articles or opinion pieces that adopt the same theme. Moreover, a significant number of politicians and analysts put smaller powers, especially Iran and North Korea, and even non-state actors, such as Al Qaeda and ISIS, in that category. The concerted campaign on the part of opinion-shaping elites to hype the danger from such sources is leaving an indelible mark on public attitudes. Many Americans now believe that their country faces multiple, horrifying threats.

More sober reflection should cause the public to conclude that the dangers are greatly exaggerated, and that the individuals, agencies, and organizations that foster such hysteria are not doing the country any favors. (“Paranoid Superpower: Threat Inflation is the American Way.”)

Do the real or imagined threats to Ukraine or Taiwan really represent existential threats to the world including the American people?

Then there’s the so-called climate emergency, which doesn’t exist. After more than 40 years of the most ridiculously bad predictions of the imminent catastrophe, it’s time for those who still take the doomsday scenarios seriously to realize that “Wolf!” has been cried too many times. The same goes for other “crises,” like the ones supposedly presented by immigrants, global free trade, and the allegedly rampant racism, sexism, anti-Semitism, and the assortment of imagined phobias.

We can also tell the “woke” left and the national conservative right that we have our own lives to live, thank you very much. And, no, we don’t have too much freedom, no matter what they may think. They can include us out of their culture wars.

The point of freedom is to be left unimpeded in our own individual and voluntary cooperative pursuits. It will forever be remarkable that the Declaration of Independence specified “the pursuit of happiness” in its examples of unalienable rights. Let’s never forget it.

Meanwhile, Happy New Year!

Did John Marshall Actually Try To Limit Federal Power?

Did John Marshall Actually Try To Limit Federal Power?

Despite the words of the Commerce Clause and Necessary and Proper Clause remaining constant for over 200 years, their meaning and scope has not. In our young republic’s history the era of the Marshall Court yielded two foundational cases which expanded the federal government’s implied powers, originally grounded in the Necessary and Proper Clause. The greatest expansions of the federal government have come from case after case of implied powers that have been created by using the Necessary and Proper Clause in conjunction with the Commerce Clause.

The first of these two great cases came in the 1819 Supreme Court opinion McCulloch v. Maryland. This case found that implied powers gave Congress the authority to charter a central bank.

The second case would come five years later in the form of Gibbons v. Ogden.

In some ways, Chief Justice John Marshall’s opinion in Gibbons v. Ogden expanded federal power using expansive definitions of various words in the Commerce Clause. But future courts ignored an important limiting principle he included in his opinion.

The Commerce Clause operates both as a power delegated to Congress and a constraint upon state legislation. The clause found in Article I, § 8, empowers Congress “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

To this day, the debate over the extent of the commerce power centers on the definitions of “to regulate,” “commerce,” and “among the several states.”

Gibbons v. Ogden was the Court’s first interpretation of these terms.

New York law gave Aaron Ogden a monopoly; only his company could operate steamboats within New York waters. Another man, Thomas Gibbons, disregarded that law. He operated steamboats that traveled from New Jersey to New York.

Ogden sued to halt Gibbons’ steamboat business. He contended that New York law gave him a monopoly. Gibbons countered that New York law interfered with a federal law that licensed him to operate his ships. If Congress had the power to license ships that travel between one state and another, then the New York law would be preempted, and thus unconstitutional. The New York courts rejected Gibbons’ constitutional arguments and enjoined his operations. In turn, Gibbons appealed the case to the United States Supreme Court. He argued that the federal law was supported by Congress’ power under the Commerce Clause, and contended that a state cannot regulate interstate commerce.

Ogden argued that the New York monopoly law was constitutional because Congress lacked the power to regulate boats traveling between New York and New Jersey. Commerce he contended was limited to “traffic, to buying and selling, or the interchange of commodities and…it [did not] comprehend navigation.” Therefore the New York law should control.

As in McCulloch, Chief Justice Marshall rejected the narrowest interpretation of congressional power in favor of a broader one. He explained that Ogden’s construction would “restrict a general term,” that is commerce, which is “applicable to many objects, to one of its significations”—meaning trade or traffic. Instead, Marshall adopted a broader interpretation of the meaning of the word commerce. He concluded that “Commerce, undoubtedly, is traffic but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations in all its branches, and is regulated by prescribing rules for that intercourse.”

This conclusion is also supported by evidence that the original meaning of “commerce” included laws governing navigation.

Next Marshall explained that the word “among” in the Commerce Clause is defined as “intermingled with.” Marshall wrote that comprehensive as the word ‘among’ is, it may, very properly be restricted to that commerce which concerns more States than one.” The word “concerns” is another broadening term.

When the words of the Commerce Clause in the Constitution are replaced by synonyms used by Marshall (“commerce” with intercourse and “among” with intermingled with), the power seems to be broader—or so later courts would rule.

The narrowest definition of “to regulate” is to “make regular.” That is, to regulate the free flow of goods, but not, except in cases of danger, to prohibit the flow of any good. Some scholars and a number of Supreme Court Justices have supported that narrow definition.

Nonetheless, the Supreme Court has never formally accepted a limited view of what “to regulate” means. From the outset, in Gibbons v Ogden, Chief Justice John Marshall saw the power to regulate as coextensive with the other delegated powers of Congress. He declared, “This power, like all others vested in Congress, is complete in itself may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution.”

In other words “to regulate” is descriptive of the essential and core congressional power to legislate. The manner in which Congress decides to regulate commerce is completely at the discretion of Congress.

However, like in McCulloch, Marshall placed an important limiting principle on the scope of Congress’ powers. The Commerce Clause enumerated three specific powers: to regulate commerce with foreign nations, among the several states, and with Indian tribes. Therefore, that “enumeration presupposes something not enumerated.” In other words, Congress can’t regulate any other type of commerce than the three that are listed. Specifically, Marshall found that the Constitution does not give Congress the power to regulate the “exclusively internal commerce of a state.” Such “exclusively internal commerce” he added “may be considered as reserved for the state itself.”

The text of the Tenth Amendment supports Marshall’s conclusion. It provides that: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” If an enumerated power is not delegated to Congress, then it is reserved to the states.

With this broad reading of “commerce” and “among” the Court found that Congress had the power to enact the federal law that licensed Gibbons’ boats. Like in McCulloch, Marshall can be accused of casually employing expansive and comparatively imprecise rhetoric concerning the scope of Congress’ enumerated powers. Yet, Marshall in fact reaffirmed limits on these powers. Future decisions would rely on Marshall’s broad definition of “commerce” and “among,” yet ignore his limitations on federal power.

News Roundup 1/27/2022

News Roundup 12/27/21

Covid

  • Massachusetts halts all elective procedures. [Link]
  • The USS Milwaukee will remain in Cuba after several sailors tested positive for Covid. [Link]
  • USAID is running out of money to distribute covid vaccinations. [Link]
  • The US donates 1.5 million vaccine doses to Egypt through Covax. [Link]
  • Biden will lift the travel restriction from eight African countries on January 1st. [Link]

US News

  • LAPD officers killed a 14-year-old girl. [Link]
  • The Pentagon cuts the cost of living stipend it gives to tens of thousands of soldiers living in high-cost areas in the US. [Link]
  • Stu Scheller – who made a viral video calling for accountability for the Afghan withdrawal – has been discharged from the Marines. [Link]

Greece

  • At least 16 migrants drowned in Greek waters. [Link]

Russia

  • Congress ordered the creation of the Foreign Miligin Influence Center two years ago, but minimal progress has been made in setting up the new office. [Link]
  • Russia says security talks with the US will begin in January. [Link]
  • Biden is considering providing battlefield intelligence to Ukraine. [Link]
  • More than 10,000 Russian troops return to their permanent military bases near Russia’s border with Ukraine. [Link]
  • Putin will consider other options if the West refuses Russia’s request for security assurances. [Link]

China

  • Biden signs the Uyghur Forced Labor Prevention Act. [Link]
  • The US and Japan draw up joint defense plans for Taiwan. [Link]

Myanmar

  • A Myanmar human rights group accuses the military of killing several 30 people – including women and children – and burning the bodies. [Link]

Middle East

  • Israel’s Prime Minister Naftali Bennett unveils a plan to double the number of settlers in the occupied Golan Heights. [Link]
  • National Security Adviser Jake Sullivan says the deadline to save the Iran Nuclear Deal is within weeks. [Link]
  • An Iranian official says even if talks with the US fail, Iran will not enrich uranium past 60%. [Link]
  • Over 3,700 people were killed in the Syrian War in 2021. [Link]

Yemen

  • Saudi Arabia claims the Houthi have fired 430 missiles and 850 armed drones at Saudi Arabia since 2015. Saudi Arabia says 59 civilians have been killed. [Link]
  • A Houthi projectile killed two people in Saudi Arabia. Saudi carried out a heavy bombing of Yemen killing three civilians. [Link]
  • The US seizes a ship carrying guns manned by Yemenis. The US claims the ship was moving weapons from Iran to the Houthi. [Link]
  • 18 Saudi-backed Yemeni fighters were killed by the Houthi. The Houthi reported Saudi heavily bombed the area. [Link]

Africa

  • Biden will expel Ethiopia, Mali, and Guinea from the Africa Grow and Opportunity Act. The law created a program to allow African countries to access more American goods duty-free. [Link]
  • At least 27 migrants died off the coast of Libya attempting to cross to Europe. [Link]
  • Somalia’s President Mohamed Mohamed fires the prime minister. Several officials said the move was illegal and expects the prime minister to remain in the role. 
  • Ethiopia’s government says it has ordered its forces not to advance further into Tigray. [Link]
  • Militants in Burkina Faso killed 41 people in an attack on a town. [Link]
  • Mali denies that mercenaries from the Russian Wagner Group are fighting in the country. Western governments have accused Mali of using the Russian defense firm. [Link]
  • Russia says it will continue to provide assistance to Mali. [Link]
  • Five people were killed in the Congo by a suicide bomber. [Link]

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