"Let them hate,

so long as they fear."

 

...So as the second Trump administration careens from one failure to another, as unhappiness with the president rises, as events and reality refuse to bend to his will, he will become darker and crueler and more unstable. His advisers, all of whom are afraid to stand up to him, will enable him. And the MAGA movement, more cult-like than ever, more walled off from reality than ever, will stay with him until the end.

Leaders who have been worse—more ruthless and more skilled than Trump—have been stopped, and few nations have been blessed by a system of government as wise and resilient as what our Founders created. Many of our institutions are stronger than those in most other nations. So Trump is hardly invincible, and many millions of Americans will not give up without a fight. My hope and expectation is that they will prevail, that America will prevail, but it will come at quite a cost…

—Peter Wehner, "America's Mad King"

Also worth your time:

A Loophole That Would Swallow the Constitution
If Donald Trump can disappear people to El Salvador without due process, he can do anything.
By Jonathan Chait

Donald trump’s most frightening power grab was undertaken with an undertone of sinister jocularity. There was no column of tanks in the streets, no burning of the legislature. The president and his partner in despotism, President Nayib Bukele of El Salvador, were bantering amiably in the Oval Office in front of the press corps, mocking the American court system with evident delight.

Trump’s ploy is almost insultingly simple. He has seized the power to arrest any person and whisk them to Bukele’s notorious Terrorism Confinement Center, where they will be held indefinitely without trial. Once they are in Bukele’s custody, Trump can deny them the protections of American law. His administration has admitted that one such prisoner, Kilmar Abrego Garcia, was sent to El Salvador in error, but insists that it has no recourse. Trump, who has threatened the territorial integrity of multiple hemispheric neighbors, now claims that requesting the return of a prisoner he paid El Salvador to take would violate that country’s sovereignty…

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, April 17, 2025 (pdf)

…The Executive is inherently focused upon ends; the Judiciary much more so upon means. Ends are bestowed on the Executive by electoral outcomes. Means are entrusted to all of government, but most especially to the Judiciary by the Constitution itself.

The Executive possesses enormous powers to prosecute and to deport, but with powers come restraints. If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home?∗ And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies? The threat, even if not the actuality, would always be present, and the Executive’s obligation to “take Care that the Laws be faithfully executed” would lose its meaning….

The basic differences between the branches mandate a serious effort at mutual respect. The respect that courts must accord the Executive must be reciprocated by the Executive’s respect for the courts. Too often today this has not been the case, as calls for impeachment of judges for decisions the Executive disfavors and exhortations to disregard court orders sadly illustrate…

It is, as we have noted, all too possible to see in this case an incipient crisis, but it may present an opportunity as well. We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.

In sum, and for the reasons foregoing, we deny the motion for the stay pending appeal and the writ of mandamus in this case. It is so ordered.

Oopsie… 

Smackdown? Well, we'll see where that goes from here.

UPDATE:

REALLY SICK OF ALL THIS TRUMP STUFF THIS WEEK

 

Some new readings...

 

 

Came on to Becker via a Science Magazine Review. The Amazon blurb for More Everything Forever:

forThis "wild and utterly engaging narrative" (Melanie Mitchell) shows why Silicon Valley’s heartless, baseless, and foolish obsessions—with escaping death, building AI tyrants, and creating limitless growth—are about oligarchic power, not preparing for the future.

Tech billionaires have decided that they should determine our futures for us. According to Elon Musk, Jeff Bezos, Sam Altman, and more, the only good future for humanity is one powered by technology: trillions of humans living in space, functionally immortal, served by superintelligent AIs.  

In More Everything Forever, science journalist Adam Becker investigates these wildly implausible and often profoundly immoral visions of tomorrow—and shows why, in reality, there is no good evidence that they will, or should, come to pass. Nevertheless, these obsessions fuel fears that overwhelm reason—for example, that a rogue AI will exterminate humanity—at the expense of essential work on solving crucial problems like climate change. What’s more, these futuristic visions cloak a hunger for power under dreams of space colonies and digital immortality. The giants of Silicon Valley claim that their ideas are based on science, but the reality is darker: they come from a jumbled mix of shallow futurism and racist pseudoscience.  

More Everything Forever exposes the powerful and sinister ideas that dominate Silicon Valley, challenging us to see how foolish, and dangerous, these visions of the future are. 

Comes out April 22nd. I also had to go after heis earlier book.

 

apropoa of the new one:

Came to this via Substack.

Careless People: The Book Meta Doesn’t Want You to Read

Careless People by Sarah Wynn-Williams could almost be one of Christopher Buckley’s Beltway satires. Like Thank You for Smoking or The White House Mess, the first-person protagonist takes the reader on a journey from dream job to absurd nightmare—each chapter an ironic critique of the powerful characters depicted. Except Wynn-Williams is real, and so are the truly awful people and events she describes. “…like watching a bunch of fourteen-year-olds who’ve been given superpowers and an ungodly amount of money, as they jet around the world to figure out what power has bought and brought them,” she writes in the prologue.

The subtitle, A Cautionary Tale of Power, Greed, and Lost Idealism aptly describes this memoir, which begins with Wynn-Williams’s story of surviving a shark attack at the age of 13 in her native New Zealand and ends with her being escorted by security from the shark-infested headquarters at Facebook twenty-five years later. Hired in 2011 as the Manager of Global Public Policy, Wynn-Williams conveys her initial enthusiasm as a true believer in the power of Facebook to be a force for good and, on that basis, how she pitched the idea of a policy role for herself at a time when the leadership did not yet grasp why the company would need to build relationships with state leaders...
 

Stay tuned...

Supreme Court Justice Sonia Sotomayor

BaltimoreSpeakers.org

 

That was excellent. Packed house. Great venue. 15 minutes from our house. Justice Sotomayor was wonderful.

During the Q&A Justice Sotomayor spoke of a number of her current societal concerns. Very similar to those comprising my "Exigency Short List."

First time there for us. We've bought reserved seats for the entire 2023-2024 Speakers Series.

 

 

The Meyerhoff Symphony Hall is located near MICA, the Maryland Institute College of Art, and the University of Baltimore. In addition to the hosting Stevenson U., the Baltimore Speakers Series media partners are The Baltimore Sun and WYPR 88.1 FM (NPR affiliate).

 

ERRATUM

 

The new Supreme Court term commences Monday (Oct 2nd). Wonder how the pending federal shutdown will affect that?

 

Some other words of topical relevance not found in the Constitution: "close," "shut down, "shutdown," "budget," "deficit," "terminate, "dissolve," "lay off," "layoff,""furlough." And so on...

__________

 

Judicial interference with mifepristone

The AAAS speaks out.

  

 

I am an AAAS member (as should you be). They just published this OpEd.

In the days since Texas federal judge Matthew J. Kacsmaryk invalidated the approval by the US Food and Drug Administration (FDA) of mifepristone, a medication used to terminate pregnancy, a shock wave of concern has swept through many people, organizations, and companies that work closely with the agency. The strong opposition reflects the high stakes not only for pregnant persons and for the FDA, but also for the scientific process of drug development and public access to safe and effective medications. Twists and turns in the case are already happening. A federal appeals court stayed the full suspension of mifepristone, but permitted multiple restrictions on its availability. Then the Supreme Court, which recently overturned the constitutional right to abortion, kept the status quo in place for a few days while considering the government’s appeal. The results of the legal battle will be enormously consequential for reproductive health care—and far beyond, for innovation, science, and health.

The FDA plays such an important role in the health of Americans that it is easy to take its functions for granted. More than 15,000 agency employees regulate an estimated $2.7 trillion in consumer goods, including all medical products. Over more than a century, the FDA has developed extensive processes that govern the collection and review of preclinical and clinical data on biologics and drugs with defined scientific and legal-regulatory standards, earning high levels of trust from the public in the process.

The agency’s review of mifepristone in 2000 was thorough and fair. The drug’s manufacturer submitted a large dataset for the agency’s experts to review. An external advisory panel supported its approval. After a 6-month review, FDA’s scientific staff concluded that mifepristone is safe and effective. Over the past two decades, the medication’s safety record has grown stronger, with major medical professional associations in full support of access. Over time, the FDA, after thorough safety reviews, loosened restrictions on distribution.

The FDA’s expertise and diligence, however, barely seemed to matter to Kacsmaryk in his unprecedented decision last week. The judge’s use of extreme rhetoric, reliance on noncredible sources, and tendentious reasoning may have raised the hopes of the plaintiffs, who have a strong ideological opposition to abortion, but the decision also shredded any pretense of judicial objectivity and lowered the bar for efforts to overturn well-considered and justified determinations by the FDA...

...The FDA is a unique institution, bringing together intellectual resources from inside and outside government to make decisions on thousands of products each year. Once courts dismiss core scientific judgments by the agency, there is no reason to believe they will limit themselves to this one medication. There is already political pressure against vaccines, antidepressants and other psychotropic medication, and certain cell-derived therapies. If judges begin to dictate the terms of medication access, then others will seek to use ideology and influence to advance their agendas.

Respect for the integrity of the FDA underlies decades of progress in using science to save lives. Cracks in this foundation are as dangerous as they are unwarranted.

A woman's reproductive decisions are rightfully no one else's business. And, the improper ideological extrajudicial motives of this fundamentalist "Christian" judge, Matthew Kacsmaryk, could not be more clear.

CNN—The federal district judge who first suspended the US Food and Drug Administration’s approval of the so-called abortion pill mifepristone failed to disclose during his Senate confirmation process two interviews on Christian talk radio where he discussed social issues such as contraception and gay rights.

In undisclosed radio interviews, Matthew Kacsmaryk referred to being gay as “a lifestyle” and expressed concerns that new norms for “people who experience same-sex attraction” would lead to clashes with religious institutions, calling it the latest in a change in sexual norms that began with “no-fault divorce” and “permissive policies on contraception.”

Kacsmaryk, a Trump-appointed federal district judge, made the unreported comments in two appearances in 2014 on Chosen Generation, a radio show that offers “a biblical constitutional worldview.” At the time, Kacsmaryk was deputy general counsel at First Liberty Institute, a nonprofit religious liberty advocacy group known before 2016 as the Liberty Institute, and was brought on to the radio show to discuss “the homosexual agenda” to silence churches and religious liberty, according to the show’s host…

The broader Money Shot on this case:

"Once courts dismiss core scientific judgments by the agency, there is no reason to believe they will limit themselves to this one medication. There is already political pressure against vaccines, antidepressants and other psychotropic medication, and certain cell-derived therapies. If judges begin to dictate the terms of medication access, then others will seek to use ideology and influence to advance their agendas."

I submit that we can count on that. e.g., "Don't say 'Gaybies'," anyone?

 

MORE

(WaPo)—As a lawyer for a conservative legal group, Matthew Kacsmaryk in early 2017 submitted an article to a Texas law review criticizing Obama-era protections for transgender people and those seeking abortions.

The Obama administration, the draft article argued, had discounted religious physicians who “cannot use their scalpels to make female what God created male” and “cannot use their pens to prescribe or dispense abortifacient drugs designed to kill unborn children.”

But a few months after the piece arrived, an editor at the law journal who had been working with Kacsmaryk received an unusual email: Citing “reasons I may discuss at a later date,” Kacsmaryk, who had originally been listed as the article’s sole author, said he would be removing his name and replacing it with those of two colleagues at his legal group, First Liberty Institute, according to emails and early drafts obtained by The Washington Post.

What Kacsmaryk did not say in the email was that he had already been interviewed for a judgeship by his state’s two senators and was awaiting an interview at the White House.

As part of that process, he was required to list all of his published work on a questionnaire submitted to the Senate Judiciary Committee, including “books, articles, reports, letters to the editor, editorial pieces, or other published material you have written or edited.”

The article, titled “The Jurisprudence of the Body,” was published in September 2017 by the Texas Review of Law and Politics, a right-leaning journal that Kacsmaryk had led as a law student at the University of Texas. But Kacsmaryk’s role in the article was not disclosed, nor did he list the article on the paperwork he submitted to the Senate in advance of confirmation hearings in which Kacsmaryk’s past statements on LGBT issues became a point of contention…

UPDATE

"We just saw a fetal heartbeat bill signed in the dead of night recently in Florida. In my home state of South Carolina, there was a very small group of state legislators that filed a bill that would execute women who have abortions and gave more rights to rapists than women who've been raped."—Rep Nancy Mace, R-SC

BREAKING

 

Coming soon…

In this regard, read up on Justice Alito’s dissent in the current Kacsmaryk case.

"...I would deny the stay applications. Contrary to the impression that may be held by many, that disposition would not express any view on the merits of the question whether the FDA acted lawfully in any of its actions regarding mifepristone. Rather, it would simply refuse to take a step that has not been shown as necessary to avoid the threat of any real harm during the presumably short period at issue."

"No threat of any real harm?"  Unless you're a woman in need of this Rx, which has been demonstrably, safe, effective, and legally available since 2000.

 

More on the Shadow Docket here.

__________

A world of hurt

136 days of obscene Russian war (crimes) against Ukraine as of July 10th, with no end in sight. And, 121 days until the U.S. mid-term elections, portending the possible beginning-of-the-end of our Democracy (fully culminating in 2024 should the GOP retake the White House, assuming they gain control of Congress this November).

 

In that regard, the U.S. Supreme Court "conservative / textualist" supermajority has now struck down womens' federal reproductive rights via the Dobbs decision (nullifying Roe), made it easier to obtain handguns by overturning New York's permit regulations on "concealed carry," invalidated EPA Clean Air Act environmental regulatory authority, and further eroded the separation of Church and State via their Maine religious schools and Bremerton WA "kneeling Christian football coach" rulings. SCOTUS has also agreed to next hear cases intended to accord state legislatures unreviewable plenary authority to summarily appoint "Presidential Electors," irrespective of previously certified state popular vote tallies.

 

Inflation is now (unsurprisingly) rampant, globally. People in the underdeveloped world face massive looming starvation. War, droughts, adverse climate change comprise enervating force multipliers...

 

Had I not direct multigenerational offspring, perhaps I'd have fewer [bleeps] to give.

 

“We just have a few more tragedies to report before we can get to the fun stuff.”

 

RECOMMENDED READING

 

"Autistic isolation," LOL. Mic drop.

Don't take my word for it. Do Your Own Research. 

 

TOPICAL ERRATA

Confirmation bias is normal human behavior. What’s not normal is the emergence of a populist madness on the American right that counts on the intimidation of the sensible many by the delusional few. This development threatens to turn a great republic into little more than a collection of unthinking and dangerous reflexes, its citizens like a school of fish aimlessly darting back and forth as they are lured by bait or chased by predators…

…That means it’s up to us to assert those norms and values in everything we do in our daily life. It means that citizens of good will must hold their ground, calmly and without reacting to the many bad-faith provocations thrown at them. It means linking arms with people with whom we disagree about almost everything, so long as we agree on the Constitution and our rights as citizens… —Tom Nichols, @TheAtlantic

 ON JUSTICE CLARENCE THOMAS

...In his second year on the Court, Thomas said that he was “proudly and unapologetically irrelevant and anachronistic.” Almost thirty years later, he has become what conservatives of every era seek to be: anachronistic and relevant.

Under Thomas’s aegis, the Court now assumes a society of extraordinary violence and minimal liberty, with no hope of the state being able to provide security to its citizens. In his Bruen concurrence, Alito extends Thomas’s history of Reconstruction to all modern America: “Many people face a serious risk of lethal violence when they venture outside their homes.” Like the Black citizens of Reconstruction, he argues, few of us should expect the police to protect us. “The police cannot disarm every person who acquires a gun for use in criminal activity,” Alito writes, “nor can they provide bodyguard protection for [New York] State’s nearly 20 million residents.”

Once upon a time, Alito’s claims of systemic danger and state incapacity would have been dismissed as the rantings of a mountain survivalist. But, after decades of mass shootings, his assertion that the cops can’t protect you reads as a corollary to the left’s warning that the cops won’t protect you. What makes both beliefs plausible is the failed state that America has become, with no small amount of help from Thomas, the right-wing Court, and elected officials from both parties.

Today’s felt absence of physical security is the culmination of a decades-long war against social welfare. In the face of a state that won’t do anything about climate change, economic inequality, personal debt, voting rights, and women’s rights, it’s no wonder that an increasing portion of the population, across all races, genders, and beliefs, have determined that the best way to protect themselves, and their families, is by getting a gun. A society with no rights, no freedoms, except for those you claim yourself—this was always Thomas’s vision of the world. Now, for many Americans, it is the only one available. —Corey Robin, the @NewYorker

MORE ON THE CURRENT SCOTUS SUPERMAJORITY

Watching Justice Samuel Alito go spelunking in his Dobbs opinion through centuries of so-called history and tradition in search of legal justifications to overturn the right to abortion decided almost 50 years ago in Roe v. Wade was like watching a boy play in a pile of dirt. Where do I dig next, he seemed to be muttering to himself as he shoveled manure from a slave-era law in Virginia onto an 18th-century pile of garbage he quoted from some doofus who believed women were inferior beings. Clarence Thomas was right there behind him in his decision that New York can't prevent people from carrying concealed weapons, plowing through statutes from jolly old England and the American frontier to show that Dodge City didn't really mean it when they told cowboys they had to check their six-guns with the sheriff if they came into town.

And then along came Chief Justice Roberts as clean-up man, swinging the club of something known as the "major questions doctrine" to deny the Environmental Protection Agency its statutory authority to — duh — protect the environment unless Congress spells out exactly how they should do it. According to Roberts, it is Congress, not the EPA, that has to write a rule telling corporations they can't empty industrial waste directly into creeks, rivers or the ocean because it's a "major question" if it costs corporations a lot of money, so let's make it as hard as possible for the government to take a chunk out of our golf buddies' bottom lines…

All of this in service to their favorite doctrine of all — rights granted by the Constitution must be "deeply rooted in the nation's history and tradition" or they aren't really rights at all. Legal scholars have been predicting that the court will use its new jewel of a doctrine to overturn Obergefell v. Hodges, not to mention other recent decisions recognizing rights under the privacy provision of the equal protection clause of the 14th Amendment … because we have no "history and tradition" of same-sex marriage or gay sex or rubbers or the pill, or anything else they simply don't like... —Lucian K. Truscott IV, @Salon

__________

 

Commander Alito, Patriarch of New Gilead

Margaret Atwood on What ‘The Handmaid’s Tale’ Means in the Age of Trump

In the spring of 1984 I began to write a novel that was not initially called “The Handmaid’s Tale.” I wrote in longhand, mostly on yellow legal notepads, then transcribed my almost illegible scrawlings using a huge German-keyboard manual typewriter I’d rented.

The keyboard was German because I was living in West Berlin, which was still encircled by the Berlin Wall: The Soviet empire was still strongly in place, and was not to crumble for another five years. Every Sunday the East German Air Force made sonic booms to remind us of how close they were. During my visits to several countries behind the Iron Curtain — Czechoslovakia, East Germany — I experienced the wariness, the feeling of being spied on, the silences, the changes of subject, the oblique ways in which people might convey information, and these had an influence on what I was writing. So did the repurposed buildings. “This used to belong to . . . but then they disappeared.” I heard such stories many times.

Having been born in 1939 and come to consciousness during World War II, I knew that established orders could vanish overnight. Change could also be as fast as lightning. “It can’t happen here” could not be depended on: Anything could happen anywhere, given the circumstances.

By 1984, I’d been avoiding my novel for a year or two. It seemed to me a risky venture. I’d read extensively in science fiction, speculative fiction, utopias and dystopias ever since my high school years in the 1950s, but I’d never written such a book. Was I up to it? The form was strewn with pitfalls, among them a tendency to sermonize, a veering into allegory and a lack of plausibility. If I was to create an imaginary garden I wanted the toads in it to be real. One of my rules was that I would not put any events into the book that had not already happened in what James Joyce called the “nightmare” of history, nor any technology not already available. No imaginary gizmos, no imaginary laws, no imaginary atrocities. God is in the details, they say. So is the Devil.

Back in 1984, the main premise seemed — even to me — fairly outrageous. Would I be able to persuade readers that the United States had suffered a coup that had transformed an erstwhile liberal democracy into a literal-minded theocratic dictatorship? In the book, the Constitution and Congress are no longer: The Republic of Gilead is built on a foundation of the 17th-century Puritan roots that have always lain beneath the modern-day America we thought we knew.

The immediate location of the book is Cambridge, Mass., home of Harvard University, now a leading liberal educational institution but once a Puritan theological seminary. The Secret Service of Gilead is located in the Widener Library, where I had spent many hours in the stacks, researching my New England ancestors as well as the Salem witchcraft trials. Would some people be affronted by the use of the Harvard wall as a display area for the bodies of the executed? (They were.)

In the novel the population is shrinking due to a toxic environment, and the ability to have viable babies is at a premium. (In today’s real world, studies are now showing a sharp fertility decline in Chinese men.) Under totalitarianisms — or indeed in any sharply hierarchical society — the ruling class monopolizes valuable things, so the elite of the regime arrange to have fertile females assigned to them as Handmaids. The biblical precedent is the story of Jacob and his two wives, Rachel and Leah, and their two handmaids. One man, four women, 12 sons — but the handmaids could not claim the sons. They belonged to the respective wives.

And so the tale unfolds.

When I first began “The Handmaid’s Tale” it was called “Offred,” the name of its central character. This name is composed of a man’s first name, “Fred,” and a prefix denoting “belonging to,” so it is like “de” in French or “von” in German, or like the suffix “son” in English last names like Williamson. Within this name is concealed another possibility: “offered,” denoting a religious offering or a victim offered for sacrifice.
Why do we never learn the real name of the central character, I have often been asked. Because, I reply, so many people throughout history have had their names changed, or have simply disappeared from view.

Some have deduced that Offred’s real name is June, since, of all the names whispered among the Handmaids in the gymnasium/dormitory, “June” is the only one that never appears again. That was not my original thought but it fits, so readers are welcome to it if they wish.

At some time during the writing, the novel’s name changed to “The Handmaid’s Tale,” partly in honor of Chaucer’s “Canterbury Tales,” but partly also in reference to fairy tales and folk tales: The story told by the central character partakes — for later or remote listeners — of the unbelievable, the fantastic, as do the stories told by those who have survived earth-shattering events.

Over the years, “The Handmaid’s Tale” has taken many forms. It has been translated into 40 or more languages. It was made into a film in 1990. It has been an opera, and it has also been a ballet. It is being turned into a graphic novel. And in April 2017 it will become an MGM/Hulu television series.

In this series I have a small cameo. The scene is the one in which the newly conscripted Handmaids are being brainwashed in a sort of Red Guard re-education facility known as the Red Center. They must learn to renounce their previous identities, to know their place and their duties, to understand that they have no real rights but will be protected up to a point if they conform, and to think so poorly of themselves that they will accept their assigned fate and not rebel or run away.

The Handmaids sit in a circle, with the Taser-equipped Aunts forcing them to join in what is now called (but was not, in 1984) the “slut-shaming” of one of their number, Jeanine, who is being made to recount how she was gang-raped as a teenager. Her fault, she led them on — that is the chant of the other Handmaids.

Although it was “only a television show” and these were actresses who would be giggling at coffee break, and I myself was “just pretending,” I found this scene horribly upsetting. It was way too much like way too much history. Yes, women will gang up on other women. Yes, they will accuse others to keep themselves off the hook: We see that very publicly in the age of social media, which enables group swarmings. Yes, they will gladly take positions of power over other women, even — and, possibly, especially — in systems in which women as a whole have scant power: All power is relative, and in tough times any amount is seen as better than none. Some of the controlling Aunts are true believers, and think they are doing the Handmaids a favor: At least they haven’t been sent to clean up toxic waste, and at least in this brave new world they won’t get raped, not as such, not by strangers. Some of the Aunts are sadists. Some are opportunists. And they are adept at taking some of the stated aims of 1984 feminism — like the anti-porn campaign and greater safety from sexual assault — and turning them to their own advantage. As I say: real life.

Which brings me to three questions I am often asked.

First, is “The Handmaid’s Tale” a “feminist” novel? If you mean an ideological tract in which all women are angels and/or so victimized they are incapable of moral choice, no. If you mean a novel in which women are human beings — with all the variety of character and behavior that implies — and are also interesting and important, and what happens to them is crucial to the theme, structure and plot of the book, then yes. In that sense, many books are “feminist.”

Why interesting and important? Because women are interesting and important in real life. They are not an afterthought of nature, they are not secondary players in human destiny, and every society has always known that. Without women capable of giving birth, human populations would die out. That is why the mass rape and murder of women, girls and children has long been a feature of genocidal wars, and of other campaigns meant to subdue and exploit a population. Kill their babies and replace their babies with yours, as cats do; make women have babies they can’t afford to raise, or babies you will then remove from them for your own purposes, steal babies — it’s been a widespread, age-old motif. The control of women and babies has been a feature of every repressive regime on the planet. Napoleon and his “cannon fodder,” slavery and its ever-renewed human merchandise — they both fit in here. Of those promoting enforced childbirth, it should be asked: Cui bono? Who profits by it? Sometimes this sector, sometimes that. Never no one.

The second question that comes up frequently: Is “The Handmaid’s Tale” antireligion? Again, it depends what you may mean by that. True, a group of authoritarian men seize control and attempt to restore an extreme version of the patriarchy, in which women (like 19th-century American slaves) are forbidden to read. Further, they can’t control money or have jobs outside the home, unlike some women in the Bible. The regime uses biblical symbols, as any authoritarian regime taking over America doubtless would: They wouldn’t be Communists or Muslims.

The modesty costumes worn by the women of Gilead are derived from Western religious iconography — the Wives wear the blue of purity, from the Virgin Mary; the Handmaids wear red, from the blood of parturition, but also from Mary Magdalene. Also, red is easier to see if you happen to be fleeing. The wives of men lower in the social scale are called Econowives, and wear stripes. I must confess that the face-hiding bonnets came not only from mid-Victorian costume and from nuns, but from the Old Dutch Cleanser package of the 1940s, which showed a woman with her face hidden, and which frightened me as a child. Many totalitarianisms have used clothing, both forbidden and enforced, to identify and control people — think of yellow stars and Roman purple — and many have ruled behind a religious front. It makes the creation of heretics that much easier.

In the book, the dominant “religion” is moving to seize doctrinal control, and religious denominations familiar to us are being annihilated. Just as the Bolsheviks destroyed the Mensheviks in order to eliminate political competition and Red Guard factions fought to the death against one another, the Catholics and the Baptists are being targeted and eliminated. The Quakers have gone underground, and are running an escape route to Canada, as — I suspect — they would. Offred herself has a private version of the Lord’s Prayer and refuses to believe that this regime has been mandated by a just and merciful God. In the real world today, some religious groups are leading movements for the protection of vulnerable groups, including women.

So the book is not “antireligion.” It is against the use of religion as a front for tyranny; which is a different thing altogether.

Is “The Handmaid’s Tale” a prediction? That is the third question I’m asked — increasingly, as forces within American society seize power and enact decrees that embody what they were saying they wanted to do, even back in 1984, when I was writing the novel. No, it isn’t a prediction, because predicting the future isn’t really possible: There are too many variables and unforeseen possibilities. Let’s say it’s an antiprediction: If this future can be described in detail, maybe it won’t happen. But such wishful thinking cannot be depended on either.

So many different strands fed into “The Handmaid’s Tale” — group executions, sumptuary laws, book burnings, the Lebensborn program of the SS and the child-stealing of the Argentine generals, the history of slavery, the history of American polygamy . . . the list is long.

But there’s a literary form I haven’t mentioned yet: the literature of witness. Offred records her story as best she can; then she hides it, trusting that it may be discovered later, by someone who is free to understand it and share it. This is an act of hope: Every recorded story implies a future reader. Robinson Crusoe keeps a journal. So did Samuel Pepys, in which he chronicled the Great Fire of London. So did many who lived during the Black Death, although their accounts often stop abruptly. So did Roméo Dallaire, who chronicled both the Rwandan genocide and the world’s indifference to it. So did Anne Frank, hidden in her secret annex.

There are two reading audiences for Offred’s account: the one at the end of the book, at an academic conference in the future, who are free to read but who are not always as empathetic as one might wish; and the individual reader of the book at any given time. That is the “real” reader, the Dear Reader for whom every writer writes. And many Dear Readers will become writers in their turn. That is how we writers all started: by reading. We heard the voice of a book speaking to us.

In the wake of the recent American election, fears and anxieties proliferate. Basic civil liberties are seen as endangered, along with many of the rights for women won over the past decades, and indeed the past centuries. In this divisive climate, in which hate for many groups seems on the rise and scorn for democratic institutions is being expressed by extremists of all stripes, it is a certainty that someone, somewhere — many, I would guess — are writing down what is happening as they themselves are experiencing it. Or they will remember, and record later, if they can.

Will their messages be suppressed and hidden? Will they be found, centuries later, in an old house, behind a wall?

Let us hope it doesn’t come to that. I trust it will not.
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I have not read this book (nor seen the Hulu series it spawned), but I've now gotten and started the text. The foregoing preface was in the book's 2017 updated paperback edition. She'd published it as a NY Times essay in March 2017.

 

See also her Atlantic article excerpted in the prior post.
 

Samuel Alito’s “Amelia Bedelia” Reading of the Constitution
What the Supreme Court Justice’s leaked draft opinion on abortion reveals about originalism.
By Fabio Bertoni

Twenty years ago, when my kids were little, and we went on long drives, my wife and I would play an audiotape of the Amelia Bedelia stories, by Peggy Parish, to keep them occupied. Amelia Bedelia is a housekeeper who goes to work for a rich couple. They give her instructions—dust the furniture, draw the drapes, put out the lights—that Amelia, being extremely literal-minded, interprets exactly the wrong way. She pours dust on the furniture; draws a picture of the drapes; puts all the lights outside. The couple comes home to the chaos, and resolves to fire poor Amelia—until they taste a pie that she has made. It is so delicious that they can’t bear to let her go.

Our kids loved the wordplay and, of course, the foolish adults. They got the joke. After several hundred listenings, however, it dawned on me: Amelia Bedelia, as others have noted, knows precisely what she is doing. She’s an anarchist, an agent of chaos, and is intentionally punishing the rich couple for some conduct deep in the untold backstory of the series. No reasonable person can use words that literally, with no awareness of how words can have multiple meanings. Even children know that the phrase “catch the school bus” doesn’t refer to grabbing a large yellow vehicle flying through the air. Amelia Bedelia, a functioning adult who manages to get to work each day, surely also understands the figurative use of language, and is simply pretending not to in order to achieve her own nefarious ends.

As a then-recent graduate of law school, I soon had another realization: this narrow focus on a certain understanding of words, to the exclusion of all others, is a close cousin to originalism, a distinctly conservative strain of thinking in constitutional law that was championed and popularized by the late Supreme Court Justice Antonin Scalia. Originalists argue that their thinking is uniquely rigorous and coherent. They believe that it is possible, even imperative, to identify the proper meaning and interpretation of the Constitution by adhering strictly to the text and to the intentions of the men who wrote it. Originalists scoff at the notion of a “living Constitution,” a document whose meaning has changed and expanded with time and evolving circumstances.

Only softheaded liberals, they say, believe that due process encompasses foggy notions and words unmentioned in the Constitution—words such as “privacy.” If something isn’t specifically articulated in the Constitution, any attempt to find it there is entirely speculative—or, as Justice Scalia put it, “pure applesauce.”

By the nineteen-eighties, originalism had become the dominant legal ideology of the right. It allowed conservative legal scholars and judges to claim a higher ground of objectivity and neutrality: they were simply applying what the Framers intended when they wrote the document. Conversely, it enabled them to label federal judges who sought to expand rights or powers of the Constitution as “activist judges”—effectively, as unelected legislators who would bend the language of the Constitution, in order to reshape society to fit a vision of liberal utopia.

But the recently leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, written by Supreme Court Justice Samuel Alito, and an earlier federal decision by Judge Kathryn Kimball Mizelle, in Florida, outlawing the federal mask mandate on airplanes, reveal the dishonesty inherent in the originalism idea. In fact, it appears that, much the way that many Republicans are dropping any pretense of civil decorum or anti-bigotry in order to appeal to radical elements of the base, many conservative judges are leaning into the bare-knuckled, results-oriented jurisprudence to take them in the direction that they want to go: backward.

Justice Alito, in his draft opinion, argues that, because he can find no reference to abortion in the Constitution, and because there was no widely established right to abortion in 1868, at the time of ratification of the Fourteenth Amendment (which contains the due-process clause that Roe v. Wade holds includes the right to privacy), there is no basis for finding that the Constitution protects any such right. That’s not what “due process” means, Alito maintains, because it’s not reflected in the historical record he selectively cites. Like Amelia Bedelia, he latches onto a specific, fixed meaning within the Constitution, and refuses to consider any broader possible meaning. And while, strictly speaking, Amelia Bedelia may be more of a textualist (relying solely on the words themselves) than an originalist (seeking to understand what the words meant at the time that they were used), the utter disregard for destructive outcomes is the same…

 Fabio Bertoni is General Counsel at The New Yorker. This piece is also worth your time in its entirety.

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Are federal regulations "unconstitutional?"

SCOTUS could soon say "yes."

 

[Kim Wehle] Today, the Supreme Court will hear oral argument in a pair of cases challenging President Joe Biden’s vaccine mandates in two contexts: private workplaces with more than 100 employees and health-care facilities that participate in Medicare and Medicaid.

Ostensibly, these cases are before the Court to resolve whether a president can even temporarily require vaccine and testing protocols during a pandemic to protect public health. But the questions the Court may examine are much more sweeping, with enormous implications for the future of the executive branch and the massive swaths of American life it regulates.

Article I of the Constitution establishes that “all legislative Powers herein granted shall be vested in a Congress of the United States,” but it doesn’t define “legislative powers” except to suggest that they are something other than the nominal, undefined powers granted to the other two branches of the federal government—the president’s “executive Power” under Article II and the federal courts’ “judicial Power” under Article III. As a practical matter, legislative or “lawmaking” power might be defined as writing rules that operate prospectively to constrain conduct…

OK, let's stop right there for the moment. My wife and I have spent our entire decades-long white collar careers working in heavily-federally regulated business environments: EPA, DOE, DOD, OSHA, HHS / CMS, OCC, and FDIC. I have slogged through innumerable "proposed regulations"—i.e. the NPRM ("Notice of Proposed Rulemaking") Code of Federal Regulations (CFR) first-cut submissions (published in the Federal Register ongoing).

 

Statutory law and regulation bring to mind a rather precise and relevant business analogy. Bills that pass and become law provide us with the "what" and the "why." Think "Corporate Policies" documents (that we usually ignore—those ugly-assed 2" binders on the shelves). Within the laws we find stipulations pertaining to the "regulations," which comprise the "who," "how," "where", and "when" things get done to comply with the laws (or company policies). The "procedures." I've written my share.

Open any law on the books. Search for phrases like "as the Secretary shall implement by regulation."

You will find buku. It's a long-standing conventional staple of legislative promulgation. The who-how-where-when ops particulars largely get delegated to the myriad Article II federal agencies wherein reside the boots-on-the-ground relevant experts. Draft regulations undergo lengthy and detailed "pubic review and comment" periods prior to being finalized and added to the CFR.

This reality is by no means an unalloyed good. to wit, Obamacare contains more than 1,000 such phrases. I recall thinking at the time "be careful what you ask for."

I was right. Can you say "Tom Price?"

One last thought for now on federal CFRs. Their scopes are constrained to stay within the "intent" of the enabling legislation. Where they exceed their briefs, they are routinely challenged in court, and may well be nullified or otherwise appropriately circumscribed. That's how the system works. Yeah, it's tedious and boring. As the late Betty White would've said, "deal with it."

Moreover, federal agencies nominally answerable to the Executive Branch don't sit around thinking up random stuff to unilaterally regulate. C'mon.

So, to wrap for now. Is the Article III Branch about to declare that the Article I Branch cannot delegate via legislation the ops particulars (via statutory regulations) to the Article II Branch?

Probably not, in the aggregate. But, the Camel's Nose lurks at the edge of the tent nonetheless.

Consider these observations by WaPo's James Hohmann:

When Donald Trump took office five years ago, White House chief strategist Stephen K. Bannon vowed that the new president would wage an unending battle for the “deconstruction of the administrative state.”

The Supreme Court’s apparent readiness to block President Biden’s vaccine mandate for large companies, which will otherwise go into effect Monday, underscores the likelihood that Trump’s legacy, by remaking the judiciary, will include declawing the federal bureaucracy and hollowing out its regulatory authorities…

Solicitor General Elizabeth B. Prelogar, representing the Biden administration, told the justices that they are wrong to pretend Congress must renew authorities that have already been deferred to the executive branch, in this case to protect workers from “grave risk.” Covid “is the biggest threat to workers in OSHA’s history,” Prelogar said.

This gets to the nub of a deeper ideological dispute that reflects how the court is changing. It involves a lot more than OSHA or the polarized politics of vaccination. The unusual 3½ hours of arguments felt like the culmination of a multi-decade effort to tie the hands of a range of career civil servants inside alphabet-soup agencies such as the Environmental Protection Agency.

The right’s frustrations are understandable. The administrative state has swelled over the past century, repeatedly using broadly worded laws to issue far-reaching regulations that are often quite costly.

The left also has grounds to worry. Historically, and almost definitionally, a gridlocked Congress that cannot pass laws tends to be better for conservative reactionaries than progressive activists. Lawmakers also lack the mastery of esoteric issues, say soil runoff, that civil servants can master. When the courts force Congress to expressly decide, usually either nothing happens — or lobbyists sit in the driver’s seat…

We already have a problem with lobbyists and astroturfers hawking partisan "model legislation." I don't think we want them writing the regulations—the who-how-where-when procedures—that would have to be included in original bills passed into law should SCOTUS strike down the current Article I/II process.

Back to Kim Wehle:

The crucial legal question in the cases now before the Supreme Court is less about whether Biden properly exercised the authority granted to him in these acts than whether Congress acted constitutionally in passing along the authority to the executive branch to make such rules in the first place. If the Supreme Court’s conservative majority decides that that delegation was improper (a position that certain justices appear to have endorsed), a cascade of deregulation could begin, reversible only with a formal amendment to the Constitution or a new majority on the Court, both of which are all but impossible in the foreseeable future…

If Congress is hindered in its ability to employ agencies to fill in the details of its broad mandates, life in the United States could change dramatically. Agencies make rules and regulations affecting stock markets, consumer-product safety, the use and trafficking of firearms, environmental protection, workplace discrimination, agriculture, aviation, radio and television communications, financial institutions, federal elections, natural gas and electricity, the construction and maintenance of highways, imports and exports, human and veterinary drugs, and even the licensing and inspection of nuclear-power plants…

Jus' sayin'...

 

BTW, highly recommend her book.

MONDAY UPDATE

January 11th, Elizabeth Kolbert in The New Yorker.

Next month, the Supreme Court will hear oral arguments in a case involving an Obama-era power-plant rule that’s no longer in effect, and never really was. The Court has agreed to hear so many high-profile cases this term, on subjects ranging from abortion to gun rights to vaccine mandates, that this one—West Virginia v. Environmental Protection Agency—has received relatively little attention beyond legal circles. But its potential ramifications are profound. At a minimum, the Court’s ruling on the case is likely to make it difficult for the Biden Administration to curtail greenhouse-gas emissions. The ruling could also go much further and hobble the Administration’s efforts to protect the environment and public health.

West Virginia v. E.P.A. “could well become one of the most significant environmental law cases of all time,” Jonathan H. Adler, a law professor at Case Western Reserve University and a prominent conservative commentator, wrote on the legal blog the Volokh Conspiracy. Or, as Ian Millhiser put it, for Vox, “West Virginia is a monster of a case.”…

Under Donald Trump, the E.P.A. scrapped the Clean Power Plan and replaced it with what it called the Affordable Clean Energy rule, or ace. ace called on coal-fired power plants to install new equipment to increase their efficiency, an approach that some researchers concluded would have actually increased greenhouse-gas emissions by causing more coal, over all, to be burned. In issuing the regulation, the Trump Administration insisted that the E.P.A. didn’t have the authority to issue the Clean Power Plan in the first place. Democrat-led states took the Trump Administration to court, and, the day before Joe Biden’s Inauguration, the U.S. Court of Appeals for the D.C. Circuit struck down ace, saying that it was based “on a mistaken reading of the Clean Air Act.” The Clean Air Act, the court said, did give the E.P.A. broad latitude to decide what the “best system” would be…

At the center of the consolidated case is the question of whose interpretation of the E.P.A.’s authority under Section 111(d) of the Clean Air Act is correct: the Obama Administration’s or Trump’s—or, if you prefer, blue states’ attorneys general’s or red states’. But the case, which has attracted amicus briefs from a Death Star’s worth of right-wing think tanks, could become the start of something much bigger. Vickie Patton, the general counsel to the Environmental Defense Fund, one of the many respondents in the case, said that the petitioners are “asking the Court to do far-reaching damage to all sorts of ways we protect human life: by regulating food safety, car safety, deadly pollution, and so on.” She added, “There’s an enormous amount at stake for the American people.”…

The petitioners and their “friends” filed their briefs in the case last month. (Strikingly, several major utility companies, including Con Ed and National Grid, have joined with environmental groups, such as E.D.F., and blue states, such as New York and California, to oppose the petitioners.) Many of the briefs range far beyond the question of how to read Section 111(d) and seem aimed at what the former Trump adviser Steve Bannon famously called the “deconstruction of the administrative state.” (One of the briefs was co-authored by John Eastman, the lawyer who wrote the memo for the Trump legal team that urged Vice-President Mike Pence to overturn the results of the 2020 election.) Several invoke what’s become known as the “major questions” doctrine, which is popular among conservative jurists, including, notably, Justices Brett Kavanaugh and Neil Gorsuch….

According to the major-questions doctrine, an agency can issue a regulation that would have significant political or economic ramifications only if it has explicit instructions from Congress to do so. Major questions is a challenge to the prevailing approach, known as the Chevron doctrine, which is named after a case—Chevron U.S.A., Inc. v. Natural Resources Defense Council—that was decided by the Supreme Court in 1984. Chevron holds that, if a statute is silent or ambiguous on a point, the courts should defer to an executive agency’s interpretation, as long as the interpretation is reasonable.

The Chevron doctrine is critical to government regulation as we know it: often, federal rules are written in response to broad directives from Congress to, say, protect air quality or worker safety. The Biden Administration’s mandate that companies with a hundred or more employees require workers to be vaccinated against covid or tested weekly, for instance, relies on the Occupational Safety and Health Act of 1970. For obvious reasons, the act never mentioned covid. Last week, when the Supreme Court heard arguments in two cases challenging the Biden Administration’s authority to issue vaccine mandates, Justices Kavanaugh and Gorsuch raised the major-questions doctrine. Critics of major questions point out that, if the Court were to favor this doctrine and abandon or curtail Chevron—a move that, after last week’s arguments, seems increasingly likely—it would, in effect, be stripping power from the executive branch and handing it over to itself. “At a moment when conservatives are likely to control the Court for at least a generation, they don’t need to win congressional or presidential elections to ensure a perpetual veto over federal policy,” Hannah Mullen, a staff attorney at Georgetown Law’s Appellate Courts Immersion Clinic, wrote recently on the legal Web site Balls & Strikes.

Several of the parties to the West Virginia case go beyond the major-questions doctrine to argue in favor of what has become known as the “non-delegation” doctrine. According to this way of thinking, Congress is barred by the Constitution from delegating powers that could be construed as legislative to the executive branch. In the nineteen-thirties, the Court relied on non-delegation to strike down provisions of some of F.D.R.’s early initiatives. The idea has basically lain dormant since 1935, but in recent years several Justices—including Gorsuch and Clarence Thomas—have indicated a desire to revive it, though what exactly this would mean, ninety years after the New Deal, is unclear. As Justice Elena Kagan noted, in a 2019 decision, non-delegation has the potential to render most of contemporary government unconstitutional, “dependent as Congress is on the need to give discretion to executive officials to implement its programs.”…

Jus' sayin'

 

UPDATE: KIM WEHLE IS ON A ROLL

...[T]he Supreme Court is actually the worst of the four options when it comes to creating the country’s vaccine policy. Regular people can’t file comments with the Court on a proposed ruling and thereby put their views before the decision maker, as it can when an agency finalizes a regulation after a process known as “notice and comment” decision making. Nor can voters lobby Supreme Court justices for favorable policies as they can, at least in theory, with elected members of Congress. Unlike with legislation, moreover, there’s no way for the regulated community or those affected to know whether these “lawmakers” in robes would condone a revised vaccine regulation, other than for OSHA to enact a new one and litigate it all the way to the top for a stamp of approval. When judges—rather than Congress or administrative agencies—task themselves with filling in the blanks inevitably left in legislation, the people have little guidance in the interim…

Breyer saw it that way too. And he didn’t like it: “And then, there is this Court. Its Members are elected by, and accountable to, no one. And we lack the background, competence, and expertise to assess workplace health and safety issues. When we are wise, we know enough to defer on matters like this one. When we are wise, we know not to displace the judgments of experts, acting within the sphere Congress marked out and under Presidential control, to deal with emergency conditions. Today, we are not wise.”

Welcome to the new America, friends. Where the new boss of all bosses is not a king, or a president, or even Congress. It’s five or more elite legal minds with more unaccountable power than anyone—and with very strong opinions about what the law should be.

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MORE GREAT NEW READS

 

"Truth Decay" is meticulous. Just now getting deep into "The Way Out."  

 

They go to my whole "Exigent Priorities" riff. Stay tuned...

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