“The bill is also larded up with provisions that will make infrastructure projects more costly for taxpayers. That matters, of course, because if you inflate the cost of building a bridge and you have a fixed amount of money to spend on new bridges, you’ll get fewer bridges.
For example, the bill’s “Buy American” provision is nothing more than performative patriotism and a handout to politically powerful unions. By mandating that materials used in road, bridge, and rail projects come primarily from the United States, Congress will effectively hike prices and engage in arbitrary protectionism.”
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“The infrastructure bill could have been an opportunity to reform other federal rules that unnecessarily drive up the cost of building infrastructure. Like the Davis-Bacon Act, which requires that most workers on federally subsidized building projects are paid the local “prevailing wage” negotiated by unions even if the workers themselves are not unionized—and only about 13 percent of construction workers are part of a union. The Davis-Bacon Act rules can increase the costs of infrastructure projects by as much as 20 percent.
Similarly, the infrastructure package could have suspended or eliminated parts of the National Environmental Policy Act (NEPA) in order to streamline environmental reviews of infrastructure projects. Currently, NEPA reviews take more than four years on average, and they are frequently used as tools to block development for reasons that often have little to do with the environment.”
“In May, the Lone Star State raised the minimum legal age for working in a sexually oriented business from 18 to 21.”
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“Since the new law passed, adult businesses in Texas have laid off “droves” of 18- to 20-year-old workers, according to the Texas Entertainment Association (TEA), an organization that represents the interests of sex-oriented businesses and one of the plaintiffs challenging S.B. 315. Kevin Richardson, a TEA member who owns five adult cabarets, told the court he had to lay off more than 700 people due to the new law.
Evanny Salazar is one of the young adults who lost a job after S.B. 315 reclassified her as a child. Salazar “worked at two adult cabarets in San Antonio, Texas, where she earned about $1,000 a night” and did not witness any human trafficking, U.S. District Judge Robert Pitman noted in a July ruling. “Before she worked as an exotic dancer, Salazar was homeless and lived in her car,” he wrote. “Her job at the adult cabarets allowed Salazar to obtain housing and cover her living expenses. Since losing her job as an exotic dancer, Salazar has become homeless again and works for Door Dash [sic], where she makes about $30 a night.””
“Texas Gov. Greg Abbott, who..signed a bill that aims to restrict social media platforms’ editorial discretion, says the new law “protects Texans from wrongful censorship” and thereby upholds their “first amendment rights.” The law, H.B. 20, is scheduled to take effect on December 2, but that probably will not happen, because it is blatantly unconstitutional and inconsistent with federal law.
Abbott, a former Texas Supreme Court justice who served as his state’s attorney general from 2002 to 2015, presumably knows that. But whether he is sincerely mistaken or cynically catering to his party’s base, H.B. 20 reflects widespread confusion among conservatives about what the First Amendment requires and allows.”
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“the First Amendment applies to the government and imposes no constraints on private parties.
To the contrary, the First Amendment guarantees a private publisher’s right to exercise editorial discretion. The Supreme Court emphasized that point in a 1974 case involving a political candidate’s demand that The Miami Herald publish his responses to editorials that criticized him.
The constitutional protection against compelled publication does not disappear when we move from print to the internet, or from a news outlet to a website that invites users to post their own opinions. As Justice Brett Kavanaugh noted when he was a judge on the U.S. Court of Appeals for the D.C. Circuit, “the Government may not…tell Twitter or YouTube what videos to post” or “tell Facebook or Google what content to favor.”
Yet that is what H.B. 20 purports to do. The law says “social media platforms” with more than 50 million active monthly users in the U.S. may not “censor” content based on the “viewpoint” it expresses. That edict covers any effort to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.”
H.B. 20 makes a few exceptions, including “expression that directly incites criminal activity” and “specific threats of violence” that target people based on their membership in certain protected categories. But otherwise the rule’s reach is vast: As two trade organizations note in a federal lawsuit they filed last week, H.B. 20 “would unconstitutionally require platforms like YouTube and Facebook to disseminate, for example, pro-Nazi speech, terrorist propaganda, foreign government disinformation, and medical misinformation.””
“FOSTA and the takedown of Backpage have made finding and fighting sex criminals more difficult, according to the GAO report.
Since FOSTA’s passage, the commercial sex ad market has become more highly fragmented and more likely to be based overseas. This “heightens already-existing challenges law enforcement face in gathering tips and evidence,” the report says. Those running the newer platforms often “host servers abroad, reside abroad, use offshore bank accounts and financial institutions, or introduce third parties to attempt to obscure or distance themselves from the day-to-day operation of their platforms, according to DOJ officials.”
Whereas sites like Backpage and Craigslist were willing to work with legal authorities—reporting suspicious ads, turning over information relevant to prosecutions, etc.—the new crop of commercial sex ad platforms are much less responsive and helpful. As a result, prosecuting their users has become more difficult, as has finding the victims of sex trafficking.”
“Contrary to what the Times reported, that policy is not “legally shaky.” It relies on the well-established anti-commandeering doctrine, which says the federal government cannot compel state and local officials to enforce its criminal laws or regulatory schemes.
That doctrine is rooted in the basic design of our government, which limits Congress to a short list of specifically enumerated powers and leaves the rest to the states or the people, as the 10th Amendment makes clear. That division of powers gives states wide discretion to experiment with different policies, some of which are bound to offend the Times.
The paper suggests that defending state autonomy is disreputable, because that argument was “deployed in the past in the South to resist antislavery and civil rights laws.” But federalism does not give states a license to violate rights guaranteed by the Constitution or to flout laws authorized by it.
Although the Times tries to tar the anti-commandeering principle as racist, the same basic idea was a crucial weapon for Northern states that refused to help the federal government enforce the Fugitive Slave Act. Today that principle likewise means that state and local officials have no obligation to participate in the “deportation crackdowns” that the Times decries.
Similarly, the ongoing collapse of marijuana prohibition—a development the Times welcomes—would be impossible if states were obligated to participate in the federal war on weed. While both progressives and conservatives might wish that federalism could be limited to achieving results they like, that is not how constitutional principles work.”
“Hand-picked by politicians, some magistrates were found to have accepted bribes, stolen money, flubbed trials, trampled over constitutional protections and mishandled even the most basic elements of criminal cases.
And though they handle hundreds of thousands of misdemeanor and civil cases every year, roughly three-quarters of the state’s magistrates have never practiced law in their life, the investigation found.”
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“The investigation found that a flaw in the application process removed a requirement for magistrates to disclose if they have been disciplined for misconduct by the state’s judicial watchdog. A dozen sitting judges with prior ethics offenses skated through their last reappointment, no questions asked, the investigation found.”
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“Magistrates are the busiest judges in the state. They sit in judgment on cases involving petty thefts, drunken driving, domestic violence, assaults and disorderly conduct. They also issue arrest warrants, set bail, preside over trials and conduct preliminary hearings to assess if there is sufficient probable cause to support felony charges such as murder, rape and robbery.
Yet the news organizations’ investigation found that most magistrates are not lawyers and could not represent someone in a court of law — yet they preside over them.
Davis has stressed that the state must bolster its legal qualifications for all magistrates. Though he has not proposed details, he would at least increase their mandatory legal training from the current minimum of 57 1/2 hours.
By comparison, South Carolina is stricter with its barbers: Their training school mandates 1,500 hours.”
“what did the authors of the Constitution say about the timing of impeachment? That answer should matter a lot to Republicans, who are known for placing great weight in “originalism” when they invoke the Constitution—the meaning of the document when written in 1787 and then ratified by the public.”
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“Even though the Constitution’s text does not explicitly address whether the Senate can try a former president, the evidence from English practice, state constitutions, the Constitutional Convention, and the Federalist Papers—all core sources for originalist legal arguments—suggest that its authors fully expected that the Senate would use its power that way.”
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“As Hamilton wrote in the Federalist Papers, a core source of original meaning, the framers “borrowed” the model from the English. And, as Raskin pointed out, every English impeachment during the lifetimes of the Founders was of a former official. During the convention debates on impeachment, George Mason mentioned the impeachment of Warren Hastings, a former British official in India, which began during the summer of 1787. No delegate raised any concern about its impropriety. No early state constitution prohibited impeaching a former official—and in fact, Delaware allowed its chief executive to be impeached only “when he is out of office.” Early state constitutions are usually core evidence for originalists. The English and early American practice suggest an emphasis more on punishment—for instance, disqualification from future office—than on removal.
In the 1787 Convention debates, as recorded by James Madison, four convention delegates explicitly discussed the potential problem of incumbent presidents abusing their power at the end of their terms in order to get reelected. Several of them specifically mentioned that election fraud and manipulation of the Electoral College could be grounds for impeachment.”
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“When the Convention specifically debated the timing of impeachments, delegates William Davey, George Mason, Edmund Randolph and Gouverneur Morris (the last three considered among the most influential delegates) implicitly rejected the Trump team’s arguments. On July 20, 1787, the Convention turned to the proposed impeachment language, and two delegates, Morris and Charles Pinckney, objected. Madison recorded Pinckney’s objection: A president “ought not to be impeachable whilst in office.” Morris explained that such impeachments of sitting presidents would hand Congress too much power over the president, who might be compromised by fear of impeachment. This argument is similar to the concern about whether a sitting president can be indicted and prosecuted.
William Davie answered, “If [the president] be not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected. [Davie] considered [impeachment of sitting presidents] as an essential security for the good behaviour of the Executive.”
Morris saw the public as the final arbiter—“In case he should be re-elected, that will be sufficient proof of his innocence,” he said—but neither Morris nor anyone else in the long ensuing debate suggested that a president who wasn’t reelected should be able to avoid impeachment for what he’d done in office. And in fact, several delegates addressed Morris by emphasizing their concerns that presidents might abuse their power at a particularly dangerous time: during bids for reelection.
On that same day, George Mason was especially concerned with election fraud and the Electoral College—with presidents corrupting electors to get elected, and then attempting to stay in power “by repeating his guilt.” It defies logic to think that a president who tried such a scheme could be impeached only if he somehow succeeded and stayed in office—especially given the British precedent of out-of-office impeachments, from which the Founders were drawing.
Then Randolph emphasized broad application: “Guilt wherever found ought to be punished”—reflecting the view that the purpose was not just removal from office, but more broadly punishment for abuses of power.
In the final speech of the debate on July 20, and perhaps the most significant, Gouverneur Morris, a supporter of a strong presidency, conceded that his colleagues had persuaded him to drop his concern about timing and to vote for the impeachment clause. After noting the infamous “Secret Treaty of Dover,” in which England’s Charles II made a corrupt deal with France’s Louis XIV that led to war, Morris concluded that “treachery” justified impeachment. But then he added other reasons, including, “Corrupting his electors, and incapacity.”
He proposed that incapacity, which implied no transgression, be punished only by “degradation from his office.” But corruption during a reelection effort deserved full impeachment, removal and disqualification from office. Impeachment proceedings for such abuses would by definition have to take place after the election. And implicitly, Morris was highlighting the urgency of disqualification for treachery and corruption of the Electoral College, regardless of removal. With Morris’ reversal, the Convention moved to vote, and impeachment prevailed 8-2.”
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“The original meaning of the impeachment clauses is that they applied to former presidents, as well as presidents.”
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“The point of originalism—and I say this as an originalist legal scholar—is that our Constitution is not supposed to be a wordy document narrowly fixing every point of law, but a framework that depends upon historical context to find meaning and purpose. As Senator Ben Sasse and then-nominee Amy Coney Barrett explained in a helpful exchange during her confirmation hearings, the text is not enough to understand what the Constitution calls for; that’s why, Barrett explained, the Fourth Amendment right against unreasonable searches applies to cars, cellphones and heat detection outside houses.
Contradicting the arguments they conveniently invoke for judicial appointments, the vast majority of Republican senators this week ignored the whole principle of originalism. The historical record before the Senate is clear: The founding generation understood that former officials can be impeached and tried. In looking at the Republicans’ vote this week, it’s hard not to say that the Republicans didn’t just get their history wrong: They imposed their own preferred meaning on the Constitution, following partisanship rather than historical evidence. They embraced the very lawlessness they claim to reject. They used Trump’s four years to fill the federal bench urgently with ostensible originalists. But when the rule of law is now on the line, the Senate Republicans effectively voted to disqualify “originalism” itself.”
“Preconstitutional practice in England and America included impeachment of former officials. Ten of the 12 state constitutions that were written before the U.S. Constitution was drafted addressed impeachment. In those state constitutions, Kalt notes, “late impeachment was either required, permitted, or not discussed, but was nowhere explicitly forbidden.”
Did the Framers mean to break from historical practice by limiting impeachment to current officials? If so, they never clearly expressed that intent.
The Constitution says “the President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” It gives the House the “sole Power of Impeachment” and the Senate “the sole Power to try all Impeachments,” while limiting the penalties to removal from office and disqualification from future federal office.
This “poor drafting,” as Kalt describes it, leaves unresolved the question of whether the optional penalty of disqualification is enough to justify a Senate trial when the mandatory penalty of removal from office is no longer possible. As Turley sees it, “a private citizen is being called to the Senate to be tried for removal from an office that he does not hold.”
Kalt and many other scholars argue that the aims of accountability and deterrence would be frustrated if a president could avoid impeachment or trial by committing “high crimes and misdemeanors” toward the end of his term (as Trump is accused of doing) or by resigning (as Belknap and Richard Nixon did) after his misconduct comes to light. They also argue that disqualification is an important remedy when a president guilty of serious misconduct might plausibly make a comeback.
The “good faith” to which Turley aspires is hard to perceive in the arguments offered by most of Trump’s critics and defenders. As Stanford law professor Michael McConnell (who thinks Trump’s trial is constitutional) notes, “much of the discussion…consists of motivated reasoning on both sides that no doubt would be the opposite if partisan roles were reversed.””