Since the Russian invasion of Ukraine, the Biden administration has undertaken a vast scheme against Russian economic actors, which it characterizes as "sanctions." The scheme consists in seizing assets, freezing assets, and prohibiting lawful and constitutionally protected commercial transactions.
All of this is aimed at dissuading Russian President Vladimir Putin from his determination to use extreme state violence to neutralize the government of Ukraine and install a government more favorable to the Kremlin. Yet, the targets of these sanctions are neither Putin nor the Russian state. Rather, his friends and political supporters, as well as Russian banks and commercial entities, and even American banks and commercial entities, have been targeted -- and hundreds of millions of consumers and investors have been harmed.
By prohibiting the use of assets and international money transfers, the sanctions have severely harmed folks in Russia who have nothing to do with Putin's war by radically reducing their purchasing power and eliminating many everyday choices from their spending options. All of this was done by presidential edict.
Can the president constitutionally prevent Americans and foreign persons from the lawful use of their own assets and from engaging freely in lawful commercial transactions?
In a word: No.
Here is the backstory.
The Constitution was written to establish the federal government and to limit it. The same document that delegates to Congress the power to keep interstate and foreign commerce regular also prohibits the states in the Contracts Clause from interfering in private contracts. But there was originally no comparable prohibition restraining the federal government.
In 1791, James Madison, the author of the Constitution, argued as a member of the House of Representatives against legislation establishing the First National Bank of the United States because he feared federal control of commerce. Of course, it became law, caused recessions and was sunset 20 years later.
Yet in 1816, shortly before the end of his second term in the White House, Madison caved to corporatism and signed into law the Second National Bank of the United States. After its constitutionality was upheld by the Supreme Court in 1824, the feds insinuated themselves into all sorts of economic activity, none of it enhancing personal liberty, all of it favoring their patrons.
While still a congressman, and fearing federal insinuation into commerce, Madison authored the Bill of Rights -- the first 10 amendments to the Constitution. He crafted the Fifth Amendment to protect life, liberty and property from the government.
By requiring due process -- a trial at which the federal government must prove fault -- prior to interfering with any person's life, liberty or property, Madison arguably crafted more restraints on the feds than the original Constitution imposed upon the states.
Similarly, by requiring a search warrant issued by a neutral judge based on sworn testimony of probable cause of crime before the feds could seize any person or tangible thing, Madison again added strength and vitality to his understanding of the Constitution's protections of the primacy of the individual with respect to property and privacy.
Both the Fourth and the Fifth Amendments protect all "people" and every "person," not just Americans. This is critical to an understanding of why the sanctions imposed by the Biden administration -- upon those as to whom there has been no due process or against whom there have been no search warrants issued -- are profoundly unconstitutional.
For generations, the government argued that the rights to privacy and due process protected Americans only. In the post-World War II era, the feds have lost those arguments.
Thus, when the feds seize a yacht from a person whom they believe may have financed Putin's political rise to power, or even his personal lifestyle, they are doing so in direct violation of the Due Process Clause of the Fifth Amendment. Similarly, when they freeze foreign assets in American banks, they engage in a seizure, and seizures can only constitutionally be done with a search warrant.
As well, when the feds interfere -- whether by presidential edict or congressional legislation -- with contract rights by prohibiting compliance with lawful contracts, that, too, implicates due process and can only be done constitutionally after a jury verdict in the government's favor from a trial at which the feds have proven fault.
As if to anticipate these constitutional roadblocks to its interference with free commercial choices by investors, workers and consumers, Congress enacted the International Emergency Economic Powers Act of 1977 and the Magnitsky Act of 2016. These constitutional aberrations purport to give the president the power to declare persons and entities to be violators of human rights and, by that mere executive declaration, to punish them without trial.
These laws turn the Fourth and Fifth Amendments on their heads by punishing first and engaging in a perverse variant of due process later.
How perverse? If the feds seize assets or interfere with contracts involving foreign ownership or interests, and the victims want justice, the persons or entities whose assets have been seized or whose contractual rights have been diminished must consent to the jurisdiction of American courts and prove that they are NOT human rights violators.
These statutes are a federal version of "Alice in Wonderland," whereby the punished person or entity must prove innocence. Such a burden defies all American concepts of property ownership, fairness and due process. It is antithetical to our history, repugnant to our values and mocks the Constitution that all in government have sworn to uphold. All persons are presumed innocent. The government must always prove fault.
The restrictions that the Constitution imposes upon the federal government have no emergency exceptions, nor are they theoretical or fanciful. They were crafted by men who knew and had tasted the torments of unbridled government power. They wrote the restrictions to assure that the new federal government could not do to Americans what the British had done to them.
They failed !!
Andrew P Napolitano
March is the absolute height of tourism season on Fort Myers Beach. Between residents and Seasonals to Spring Breakers and Spring Training fans, there is always something for everyone on Fort Myers Beach, so while on our 7-mile island, add a visit the iconic Mound House! One of Southwest Florida’s most-beloved historic sites, the Mound House traces its roots to the ancient Calusa of over 2,000 years ago.
Celebrate “Archaeology Month” on Saturday, March 19, as the Southwest Florida Archaeological Society presents “Calusa Coastal Days” at the Mound House! In addition to the Mound House Museum being open from 9 a.m. to 4 p.m., it offers a “Guided Kayak Tour” at 9 a.m.; “Cool Calusa Tools” at 10 a.m.; “Shell Mound Tours” at 11 a.m. & 1 p.m.; and the “Family Fun Kayak Tour” at 2 p.m. The Kayak Tours require advance reservations at 239-765-0865 or www.moundhouse.org.
As the oldest standing structure on Estero Island, the Town of Fort Myers Beach operates the Mound House as a museum complex and cultural and environmental learning experience that offers numerous monthly entertainment and educational programs, including for children. The Mound House is open Tuesdays through Saturdays from 9 a.m. to 4 p.m., enforces Social Distancing guidelines and requests that all unvaccinated visitors wear masks. It is at 451 Connecticut Street with overflow parking at 216 Connecticut. Admission is $10 for ages 13 & up, $8 for students with IDs, $5 ages 6 to 12, and 5 & under free, with Fort Myers Beach residents receiving a 50% museum admission discount. For information, reservations, and a monthly programs schedule, call 239-765-0865 or see www.moundhouse.org.
Shell Mound Tour
For all ages every March Tuesday through Saturday at 11 am & 1 pm.
If you dig archaeology, the Mound House’s signature program is for you! Tour the one-of-a-kind underground 2,000-year-old Calusa Indian Shell Mound, explore the site’s archaeology to unearth clues about this ancient society. $5-per-person that does not include Mound House admission; Free for members.
FREE: Newton Beach Park ‘Guided Beach Walk’
For all ages every Tuesday and Thursday weather permitting at 9 am.
This twice-weekly free outdoor nature program is different every single time, walk roughly a half-mile down the beach and back, discussing whatever you find that morning. Meet at the thatched hut closest to the beach, with Social Distancing in place. Bring sunscreen, shoes to get wet, sunglasses and hat. No reservations necessary; while free, parking is $5-per-hour, with one hour generally enough. Newton Beach Park, 4650 Estero Boulevard.
Cool Calusa Tools
For families with children ages 6 & older every March Tuesday, Thursday, & Saturday at 10 a.m.
Learn to hunt, fish, and make masks and pottery, just like the Calusa! In this exciting hands-on tour of the Mound House grounds where staff demonstrate Calusa tools and artifacts, then help you make Calusa-inspired artwork where your imagination runs wild! $5-per-person that does not include Mound House admission, Free for members.
For all ages every March Tuesday & Friday at 2 p.m.
Stroll through the Mound House gardens to discover how its unique plants conserve water and protect wildlife, while learning how the Calusa and other Native Americans used them in their daily lives. $5-per-person that does not include Mound House admission; Free for members.
Latino History Tour
For all ages every March Wednesday at 2 p.m.
Perfect for Florida history buffs! Learn about the Latino fishing village known as a “Rancho” that existed on the shell mound between the ancient Calusa and Anglo-Pioneer eras. Explore the site’s archaeology and history through unearthed clues about this multicultural society. $5-per-person that does not include Mound House admission, Free for members.
Guided Kayak Tour
For ages 12 & up every March Wednesday through Saturday at 9 am as well as Thursday, March 31, at 2 pm.
Explore the winding mangrove creeks and hidden waters of the Estero Bay Aquatic Preserve as only a kayaker can on this Environmental Educator-guided tour of the ancient realm of the Calusa! Witness birds, fish, manatee and dolphins as you paddle through the natural beauty of Estero and Hell Peckney Bays in a tandem kayak. All paddling & safety equipment provided; $45-per-person with Mound House members $15 that includes Mound House admission. Advance reservations necessary at www.moundhouse.org
Archaeology: Can You Dig It?
For all ages every March Wednesday & Friday at 10 a.m.
Learn what it takes to be an archaeologist! Handle real artifacts and discover how archaeologists study past cultures in a program perfect for families. $5-per-person that does not include Mound House admission, with Mound House members free.
Family Fun Kayak Tour
For ages 6 & up weather permitting every March Wednesday & Saturday, as well as Thursday, March 24, all at 2 p.m.
This specially-designed Environmental Educator-guided kayak tour is perfect fun for families with children ages 6 & up! See birds, dolphins, manatee, and other wildlife while paddling through the Estero Bay mangroves. $25-per-person ages 13 & up; $15-per-person ages 6 to 12 that includes Mound House admission. Equipment provided. Advance registrations necessary at www.moundhouse.org.
Full Moon Kayak Tour
For ages 12 & up on Friday, March 18, at 6 p.m.
This unique tour offers kayakers the rare opportunity to experience the backwaters of the Estero Bay in the quiet of twilight by the light of the full moon! Participants explore the estuary’s tidal creeks, winding mangroves, and abundant wildlife illuminated by the full moon. Weather permitting and reservations required at www.moundhouse.org; $45-per-person with Mound House members $15. The Mound House provides all paddling equipment.
Sunset Kayak Tour
Ages 12 & up weather permitting on Friday, March 25, at 5:45 p.m.
In addition to catching a breathtaking sunset, explore the tidal creeks and winding mangrove tunnels that extend into the hidden backwaters of Estero Bay while experiencing the estuary’s abundant wildlife in the quiet of twilight. Equipment provided. $45-per-person; Mound House members $15, with advance registrations necessary at www.moundhouse.org.
The new study looked at 258 rivers across the globe, including the Thames in London and the Amazon in Brazil, to measure the presence of 61 pharmaceuticals, such as carbamazepine, metformin and caffeine.
The researchers studied rivers in over half of the world's countries -- with rivers in 36 of these countries having never previously been monitored for pharmaceuticals.
The study forms part of the University of York-led Global Monitoring of Pharmaceuticals Project, which has expanded significantly over the last two years, with the new study becoming the first truly global-scale investigation of medicinal contamination in the environment.
With their latest study, the researchers found that:
* pharmaceutical pollution is contaminating water on every continent
* strong correlations between the socioeconomic status of a country and higher pollution of pharmaceuticals in its rivers (with lower-middle income nations the most polluted)
* high levels of pharmaceutical pollution was most positively associated with regions of high median age as well as high local unemployment and poverty rates
* the most polluted countries and regions of the world are the ones that have been researched the least (namely sub-saharan Africa, South America and parts of southern Asia).
* the activities most associated with the highest levels of pharmaceutical pollution included rubbish dumping along river banks, inadequate wastewater infrastructure and pharmaceutical manufacturing, and the dumping of the contents of residual septic tanks into rivers.
The study revealed that a quarter of the sites contained contaminants (such as sulfamethoxazole, propranolol, ciprofloxacin and loratadine) at potentially harmful concentrations.
The researchers hope that by increasing the monitoring of pharmaceuticals in the environment, they can develop strategies to limit the effects potentially caused by the presence of pollutants.
The study included noteworthy rivers such as the Amazon, Mississippi, Thames and the Mekong. Water samples were obtained from sites spanning from a Yanomami Village in Venezuela, where modern medicines are not used, to some of the most populated cities on the planet, such as Delhi, London, New York, Lagos, Las Vegas, and Guangzhou.
Areas of political instability such as Baghdad, the Palestinian West Bank and Yaoundé in Cameroon were also included. The climates where samples were obtained varied from high altitude alpine tundra in Colorado and polar regions in Antarctica, to Tunisian deserts.
While previous studies have monitored active pharmaceuticals ingredients (APIs) in rivers, these have ignored many of the countries of the world, have typically measured only a select few contaminants, and employed different analytical methods. Cumulatively, this has made it difficult to quantify the scale of the problem from a global perspective.
The water sample analysis occurred at the University of York's Centre of Excellence in Mass Spectrometry.
Co-leader of the project Dr John Wilkinson, from the Department of Environment and Geography, said: "With 127 collaborators across 86 institutions worldwide, the Global Monitoring of Pharmaceuticals Project is an excellent example of how the global scientific community can come together to tackle large-scale environmental issues.
"We've known for over two decades now that pharmaceuticals make their way into the aquatic environment where they may affect the biology of living organisms. But one of the largest problems we have faced in tackling this issue is that we have not been very representative when monitoring these contaminants, with almost all of the data focused on a select few areas in North America, Western Europe and China.
"Through our project, our knowledge of the global distribution of pharmaceuticals in the aquatic environment has now been considerably enhanced. This one study presents data from more countries around the world than the entire scientific community was previously aware of: 36 new countries to be precise where only 75 had ever been studied before."
The researchers suggest their approach could also be expanded in the future to include other environmental media such as sediments, soils and biota, and could allow for the development of global-scale datasets on pollution.
'' is published in Proceedings of the National Academy of Science (PNAS).
The data for specific rivers will be available in the supplemental information associated with the publication (via PNAS). It will also be published on the Global Monitoring of Pharmaceuticals Project website.
The study used 'predicted no adverse effect concentrations (PNECs)' to determine where there may be risk for adverse effects (such as toxicity). If the team measured a concentration in the environment above the PNEC, then there was potential for organisms living there to be adversly affected by the pharmaceutical. This can manifest in many ways largely dependent on what the pharmaceutical is, what organism is being exposed and at what concentration. Examples can include disrupted reproductive capabilities, altered behaviour or physiology and even changes in heart rate.
The contaminants found at potentially harmful concentrations include: propranolol, sulfamethoxazole, ciprofloxacin, loratadine
University of York
Sometimes as part of a dire prediction, someone will say, “I hope I’m wrong, but…”
When I heard about a new petition for the U.S. Supreme Court to hear another appeal on the extent of federal jurisdiction over water – the perennial “Waters of the U.S.” (WOTUS) issue, I did not think the nation’s highest court would agree to hear the case. That’s partly because the justices agree to hear less than one percent of the cases brought to them, and also because EPA argued that the case is not “ripe,” because the agency will soon finalize another new WOTUS rule. That argument is usually persuasive to a court that is habitually reluctant to rule on anything it doesn’t yet have to. But to almost everyone’s surprise, last week the Court granted the petition, agreeing to hear the case – Sackett v. EPA – and reconsider the issue. The court denied 129 petitions, and granted only four, including this one. That raises the possibility that the question could finally be settled.
The confusion and inconsistency resulting from two opposite federal court rulings on WOTUS is among the greatest threats to water rights during our lifetime. The dispute represents a grave danger to the historic doctrine – reinforced many times over the past century – that water belongs to, and is controlled by, the states. The exception to that fundamental principle is the Clean Water Act, which created federal authority to regulate “navigable waters of the U.S.,” meaning major rivers, bays, inter-coastal waterways, and oceans, which involve interstate commerce. The law remained clear that inland waters belong to the states, and Congress has never attempted to change that. But presidents and regulators have tried to do so, leading to the court case that began this roller-coaster of confusion and contradiction.
That now-famous 2006 case, Rapanos v. United States, produced two competing definitions of “waters of the U.S.” in a strangely muddled 4-1-4 decision – two different views of where federal jurisdiction begins and ends. Four Justices shared the plurality opinion, written by Antonin Scalia, that the law covers wetlands only if they have a continuous surface connection to a river, lake or other major waterway. A fifth, Anthony Kennedy, agreed with the ruling, but with different reasoning, and wrote his own opinion – joined by no other Justice – saying the Clean Water Act covers all wetlands with a “significant nexus” to the larger bodies of water. What is “significant nexus?” Who knows – there is no such term in the Clean Water Act.
Nevertheless, the Obama EPA relied on the lone opinion of Justice Kennedy, in creating one of the most egregious power grabs in environmental history, asserting federal jurisdiction over every stream, rill, brook, creek, rivulet, backwater, stock pond, and parking lot drain in the country. It started a legal war with many states, though none had more to lose than Colorado, in terms of water.
Colorado helped lead the legal challenge, joined by half the other states, with full support of the Democratic legislature and then-Governor Hickenlooper. A federal Court of Appeals agreed, ruling that EPA had exceeded its statutory authority and blocking it in all 26 states. A different federal court disagreed, so the rule was blocked in 26 states and implemented in 24. Then the Trump Administration repealed the rule, issuing a new one based on the original plurality Supreme Court opinion, as Colorado had demanded. It was a hard-fought and enormously important victory for the State. But then, something unheard-of in the West happened.
Confounding generations of Colorado leaders, who always viewed protecting Colorado’s water as a non-partisan duty, newly-elected State Attorney General Phil Weiser filed an exactly-opposite suit seeking reinstatement of the Obama-era interpretation – federal control over Colorado water (he lost in court). That bizarre action defied the 2016 “Colorado Water Rights Protection Act,” passed unanimously by the Democratic legislature and signed by Hickenlooper, strongly opposing federal control. The Act re-asserted the constitutional principle that waters of Colorado belong to the people of Colorado, and are administered under State law.
There are no navigable waters in Colorado involving interstate commerce. EPA’s claim of jurisdiction, despite that obvious fact, may not be new (landowners have dealt with it off-and-on for decades), but it is nevertheless contrary to law. The Supreme Court finally has a chance to make that clear.
Predictably, many organizations will file briefs and opinions in this case, including states. Which side will Colorado be on this time? Will its officials defend its water, or knuckle under to federal control?
The illusory truth effect, also known as the illusion of truth, describes how, when we hear the same false information repeated again and again, we often come to believe it is true. Troublingly, this even happens when people should know better—that is, when people initially know that the misinformation is false. This phenomenon was first identified in a 1977 study at Villanova University and Temple University.
When truth is assessed, people rely on whether the information is in line with their understanding or if it feels familiar. The first condition is logical, as people compare new information with what they already know to be true. Repetition makes statements easier to process relative to new, unrepeated statements, leading people to believe that the repeated conclusion is more truthful. The illusory truth effect has also been linked to hindsight bias, in which the recollection of confidence is skewed after the truth has been received.
In a 2015 study, researchers discovered that familiarity can overpower rationality and that repetitively hearing that a certain fact is wrong can affect the hearer's beliefs. Researchers attributed the illusory truth effect's impact on participants who knew the correct answer to begin with, but were persuaded to believe otherwise through the repetition of a falsehood, to "processing fluency".
The illusory truth effect plays a significant role in such fields as election campaigns, advertising, news media, and political propaganda.
The effect was first named and defined following the results in a study from 1977 at Villanova University and Temple University where participants were asked to rate a series of trivia statements as true or false.
On three occasions, Lynn Hasher, David Goldstein, and Thomas Toppino presented the same group of college students with lists of sixty plausible statements, some of them true and some of them false. The second list was distributed two weeks after the first, and the third two weeks after that.
Twenty statements appeared on all three lists; the other forty items on each list were unique to that list. Participants were asked how confident they were of the truth or falsity of the statements, which concerned matters about which they were unlikely to know anything. (For example, "The first air force base was launched in New Mexico." Or "Basketball became an Olympic discipline in 1925.") Specifically, the participants were asked to grade their belief in the truth of each statement on a scale of one to seven. While the participants' confidence in the truth of the non-repeated statements remained steady, their confidence in the truth of the repeated statements increased from the first to the second and second to third sessions, with an average score for those items rising from 4.2 to 4.6 to 4.7. The conclusion made by the researchers was that repeating a statement makes it more likely to appear factual.
In 1989, Hal R. Arkes, Catherine Hackett, and Larry Boehm replicated the original study, with similar results showing that exposure to false information changes the perceived truthfulness and plausibility of that information.
The effect works because when people assess truth, they rely on whether the information agrees with their understanding or whether it feels familiar. The first condition is logical as people compare new information with what they already know to be true and consider the credibility of both sources. However, researchers discovered that familiarity can overpower rationality—so much so that repetitively hearing that a certain fact is wrong can have a paradoxical effect.
Relation to other phenomena
At first, the truth effect was believed to occur only when individuals are highly uncertain about a given statement. Psychologists also assumed that "outlandish" headlines wouldn't produce this effect however, recent research shows the illusory truth effect is indeed at play with false news. This assumption was challenged by the results of a 2015 study by Lisa K. Fazio, Nadia M. Brasier, B. Keith Payne, and Elizabeth J. Marsh. Published in the Journal of Experimental Psychology; the study suggested that the truth effect can influence participants who actually knew the correct answer to begin with, but who were swayed to believe otherwise through the repetition of a falsehood. For example, when participants encountered on multiple occasions the statement "A sari is the name of the short plaid skirt worn by Scots," some of them were likely to come to believe it was true, even though these same people were able to correctly answer the question "What is the name of the short pleated skirt worn by Scots?"
After replicating these results in another experiment, Fazio and her team attributed this curious phenomenon to processing fluency, the facility with which people comprehend statements. "Repetition," explained the researcher, "makes statements easier to process (i.e. fluent) relative to new statements, leading people to the (sometimes) false conclusion that they are more truthful." When an individual hears something for a second or third time, their brain responds faster to it and misattributes that fluency as a signal for truth.
In a 1997 study, Ralph Hertwig, Gerd Gigerenzer, and Ulrich Hoffrage linked the truth effect to the phenomenon known as "hindsight bias", described as a situation in which the recollection of confidence is skewed after the truth or falsity has been received. They have described the truth effect (which they call "the reiteration effect") as a subset of hindsight bias.
“Black woman” is Biden’s requirement for any candidates to succeed Justice Breyer on the U.S. Supreme Court. That sounds fine, and as expected. So, what’s the issue? Following is some context.
In 2003, President Bush nominated Janice Rogers Brown to serve on the D.C. Circuit Court of Appeals, generally considered to be the country’s second most important court. It was understood to be a preliminary step to elevating Brown to the Supreme Court. This republican nominee was Black, and a woman.
Joseph Epstein reminded us of something in his February 14 WSJ column: “The man who now promises to appoint a black woman to the Supreme Court……warned in 2005 that if President Bush nominated Judge Janice Rogers Brown, ‘I can assure you that would be a very, very, very difficult fight and she probably would be filibustered……’ They opposed her because of her judicial philosophy……intensified because they especially despised the prospect of a libertarian conservative justice who was a black female.”
Then-Senators Biden and Obama repeatedly filibustered Brown’s confirmation. She was eventually seated on the D.C. court, with Biden having voted against her three times. Shortly thereafter, Brown made the short list as a possible replacement for retiring Supreme Court Justice Sandra Day O’Connor. Senator Biden once again declared a nomination of Brown’s would face a filibuster.
None of the other conservative “short listers” for O’Conner’s seat were threatened with a filibuster. Only this Black woman, by our current President, who now refers to filibuster as a “relic the Jim Crow era.” Samuel Alito was eventually seated. Our President’s apparent motivation is to guild his legacy, with a dedication to diversity way down his list of priorities.
Two events are now in process that many observers won’t connect as being related – a Supreme Court ruling regarding racial considerations in higher education admissions, and Biden’s SCOTUS appointment. The Court ruling will inevitably include debating the applicability of the 1978 “Bakke”reverse discrimination decision. That ruling stated: “Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.”
George Washington University Professor Jonathan Turley wrote as early as 2020 that Biden’s campaign pledge seemed to be against the law: “It is precisely what the Supreme Court already declared to be unconstitutional discrimination…in [Bakke], the Supreme Court found quota and affirmative action admissions policies based on race to be unconstitutional.”
Given that context, consider the President’s announcement the same day as Justice Breyer’s retirement announcement: “I will nominate…someone with extraordinary qualifications, character, experience, and integrity. And that person will be the first Black woman ever nominated to the United States Supreme Court.” Biden was emphatic in his racial requirement. It was subject to no other contingencies. Continuing with words from the 1978 ruling, “This the Constitution forbids.”
Politicians, journalists and even cartoonists must be careful when plying their trade. They shouldn’t mislead their readers because of ignorance of important legal nuances. The problem Biden will face in this nomination has nothing to do with diversity, gender, or anything else other than the ham-handed way it is being handled makes the process unconstitutional - i.e., illegal.
South Carolina Democrat Representative Jim Clyburn, House Majority Whip and Congress’ highest’ ranking Black member, has given Biden an opportunity to tiptoe out of this unconstitutional corner. It doesn’t remove the process blunders made but may quiet much of the opposition.
Clyburn considers lack of law school diversity more concerning than race. Eight of the nine current Court justices attended either Harvard or Yale law schools, and Clyburn wants the new justice to have a non-Ivy League degree. His preferred candidate is J. Michelle Childs. And he has bipartisan support from Republican South Carolina Senators Lindsey Graham and Tim Scott.
Childs, a South Carolina federal judge, is currently under consideration for the D.C. Court of appeals. She has a record of strong bipartisan support, was the first person from her family to attend college and graduated from the University of South Carolina law school. She would be a serious candidate on most bipartisan “short lists.” And she happens to be Black.
For me, that’s a smart diversity pick, a unifying pick.
Steve Bakke, Fort Myers
In the past month, this column has twice addressed the unbridled propensity of federal intelligence agencies to spy on Americans without search warrants as required by the Fourth Amendment to the U.S. Constitution.
These agencies believe that the Fourth Amendment -- which protects the individual right to privacy -- only regulates law enforcement and does not apply to domestic spying.
There is no basis in the constitutional text, history or judicial interpretations for such a limiting and toothless view of this constitutional guarantee. The courts have held that the Fourth Amendment restrains government. Period. Last week, Congress got burned when the CIA released a heavily redacted summary of its current spying in the United States.
Here is the backstory.
When the CIA was created in 1947, members of Congress who feared the establishment here of the type of domestic surveillance apparatus that the Allies had just defeated in Germany insisted that the new CIA have no role in American law enforcement and no legal ability to spy within the U.S. The legislation creating the CIA contains those limitations.
Nevertheless, we know from statements of former governors of several states that CIA agents claim to be physically present in all 50 statehouses in the United States.
The agents who have infiltrated state governments didn't arrive until after Dec. 4, 1981. That's the date that President Ronald Reagan signed Executive Order 12333, which purports to give the CIA authority to spy in America -- supposedly looking for narcotics from foreign countries -- and keep from law enforcement whatever it finds.
Stated differently, while Reagan purported to authorize the CIA to defy the limitations imposed upon it by the Constitution and by federal law, he insisted on a "wall" of separation between domestic spying and law enforcement.
So, if the CIA using unconstitutional spying discovered that a janitor in the Russian Embassy in Washington was really a KGB colonel who abused his wife in their suburban Maryland home, under E.O. 12333, it could continue to spy upon him in defiance of the Fourth Amendment and the CIA charter, but it could not reveal to Maryland prosecutors -- who can only use evidence lawfully obtained -- any evidence of his domestic violence.
All this changed 20 years later when President George W. Bush demolished Reagan's "wall" between law enforcement and domestic spying and directed the CIA and other domestic spying agencies to share the fruits of their spying with the FBI.
Thus, thanks to Reagan and Bush authorizing it, and their successors looking the other way, CIA agents have been engaging in fishing expeditions on a grand scale inside the U.S. for the past 20 years. Congress knows about this because all intelligence agencies are required by statute to report the extent of their spying secretly to the House and Senate Intelligence Committees.
This, of course, does not absolve the CIA of its presidentially authorized computer hacking crimes; rather, it gives Congress a false sense of security that it has a handle on what's going on.
What's going on is not CIA lawyers appearing before judges asking for surveillance warrants based upon probable cause of crime, as the Constitution requires. What's going on is CIA agents going to Big Tech and paying for access to communications used by ordinary Americans. Some Big Tech firms told the CIA to take a hike. Others took the CIA's cash and opened the spigots of their fiber optic data to the voracious federal appetite.
If the CIA went to a judge and demonstrated probable cause of crime -- for example, that a janitor in the Russian Embassy was passing defense secrets to Moscow -- surely the judge would have signed a surveillance warrant. But to the CIA, following the Constitution is too limiting.
Thus, by acquiring bulk data -- fiber optic data on hundreds of millions of Americans acquired without search warrants -- the CIA could avoid the time and trouble of demonstrating probable cause to a judge. But that time and trouble were intentionally required by the authors of the Fourth Amendment so as to keep the government off our backs.
Not to be outdone by its principal rival, the FBI soon began doing the same thing -- gathering bulk data without search warrants.
When Congress learned of this, it enacted legislation that banned the warrantless acquisition of bulk data. Apparently, Congress is naive enough to believe that the CIA, the FBI and the National Security Agency, their cousin with 60,000 domestic spies, actually comply with federal law.
Last week, that naivete was manifested front and center when the CIA sent a letter to the Senate Intelligence Committee documenting the extent of its domestic acquisition of bulk data on Americans.
Two senators who should have known better claimed they were "shocked" at what they read. They read an admission of continued CIA warrantless bulk acquisition of personal data on unsuspecting and unsuspected Americans, and they saw large portions of the letter redacted so that the senators do not know the nature of the data received.
So, notwithstanding the persistent efforts of members of Congress from both parties to limit and in some cases to prohibit the warrantless acquisition of bulk data by the CIA from Americans, the practice continues, the CIA defends it and presidents look the other way.
In 1947, Congress created a monster which today is so big and so powerful and so indifferent to the Constitution and the federal laws its agents have sworn to uphold that it can boast about its lawlessness, have no fear of defying Congress and always escape the consequences of all this largely unscathed.
I suspect the CIA and its cousins get away with this because they spy on Congress and possess damning personal data on members who regularly vote to increase their secret budgets. When will we have a government whose officials are courageous enough to uphold the Constitution?
Andrew P. Napolitano