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Is Stephen Breyer About To Retire? His Clerk-Hiring Spree Suggests Otherwise. –

“We are now firmly in the window when past justices have announced their retirement, so it’s officially worrisome that Justice Breyer has not said yet that he will step down. The only responsible choice for Justice Breyer is to immediately announce his retirement.” So declared Brian Fallon, executive director of the progressive activist group Demand Justice. Fallon’s outfit has clearly set its sights on the 82-year-old jurist, launching a new pressure campaign last week under the none-too-subtle slogan Breyer Retire.

Is Breyer actually planning to step down anytime soon? Probably not, at least judging by the fact that Breyer just finished hiring a full slate of four clerks for the Supreme Court’s 2021–2022 term, which begins in October. Typically, a justice who is nearing retirement does not do so much staffing up for the future.

Of course, Justice Anthony Kennedy did announce his retirement after he hired a full slate of clerks, so there is a recent precedent for Breyer doing the same thing now. On the other hand, as the legal writer David Lat has observed, “I do think Justice Kennedy was especially likely to try and cover his tracks; if Justice Breyer has hired four clerks for OT 2021, I think it’s most likely because he expects to be on the Court at that time.” Lat, a savvy court watcher, thinks that Breyer’s hiring spree means there is now “a 70-30 chance that Justice Breyer remains on the Supreme Court for at least one more Term.”

Breyer recently disappointed progressive activists in another big way. In a Harvard Law School speech earlier this month, the justice came out firmly against court packing, telling those who would rejigger the size of the Court for the purpose of gaining a short-term political advantage to “think long and hard before embodying those changes in law.”

In my recent feature story, “Don’t Pack the Courts,” I noted that President Franklin Roosevelt’s famous 1937 court-packing scheme failed in large part because so many of his fellow Democrats opposed it. FDR’s “most effective adversaries turned out to be members of Roosevelt’s own party,” I wrote, “such as the legendary progressive jurist Louis Brandeis, who deftly maneuvered behind the scenes to ensure the bill’s ultimate defeat. Like so many others at the time, Brandeis was frankly aghast at FDR’s blatant power grab.”

Perhaps Breyer is gearing up to play the Brandeis role today.

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Congressional Democrats Want To Vote Themselves Into a Supreme Court Majority –

New legislation to be introduced in both the House and Senate today would add four justices to the U.S. Supreme Court. If successful, this would bring the number of Supreme Court justices to 13.

“The number of justices on the court, which is set by Congress, has fluctuated throughout the course of the nation’s history, reaching as many as 10 seats before settling on nine in 1869,” notes The Intercept. So, it would be perfectly legal, and not unheard of, for Congress to shift the number of justices.

And yet…a  Democratic-controlled legislature doing so at a time when conservative justices outnumber liberal justices 6–3 seems—and adding not one or two more spots but enough justices to see that, if appointed under President Joe Biden, liberals would once again hold a Supreme Court majority—smacks of partisan politics, not fulfilling legitimate legal needs.

The Senate bill will be introduced by Sen. Ed Markey (D–Mass.) and the House bill is backed by Reps. Jerry Nadler (D–N.Y.), Hank Johnson (D–Ga.), and Mondaire Jones (D–N.Y.). As a reason why, Jones cited cases that were decided in ways he didn’t like.

They’re slated to hold a press conference about the effort on Thursday morning.

“But there’s little chance the bill will make headway,” notes The Wall Street Journal.

Republicans are united in opposition to a plan that would undo the conservative majority on the Supreme Court, and even many Democrats critical of the court are reluctant to prejudge the issue while Mr. Biden’s commission is at work.

Moreover, some liberal-leaning scholars and jurists, including Justice Stephen Breyer, have suggested that altering the court’s makeup for ideological reasons would damage its reputation as an apolitical body.

Mr. Markey disagreed, arguing that adding four justices—thus allowing President Biden to create a 7-6 liberal majority—”will shore up the public’s confidence in the court and its legitimacy in the public’s eyes.”


U.S. will finally withdraw troops from Afghanistan. Biden announced on Wednesday that, after nearly two decades, it is “time to end the forever war” in Afghanistan. “War in Afghanistan was never meant to be a multigenerational undertaking,” Biden said. From The New York Times:

Speaking from the same spot in the White House where President George W. Bush ordered the start of the war after the Sept. 11 attacks nearly two decades ago, Mr. Biden made a case that there was no longer any justification — if there ever was — to believe that the United States military presence could turn Afghanistan into a stable democracy.

The roughly 2,500 American troops on the ground there, he said, would be gradually withdrawn starting on May 1, with the process complete by Sept. 11, a timetable intended to signal his determination to end a vexing and largely failed chapter in American foreign policy.

Military officials suggested the exit could be even more rapid, leaving only a token guard force for the American Embassy. NATO forces, which today have a far larger presence than the United States, would also depart, European officials said.


Mastercard caves to anti-porn groups. Under pressure from religious groups, Mastercard is tightening the screws on adult businesses. In order for Mastercard to be used in interactions with online adult businesses, it will now require those businesses to have identity verification on all content creators, review all content prior to publication, and enact a slew of other specific content moderation processes. Since these rules go way beyond what is required of Facebook and other social media sites—which have been found to have a way bigger problem with criminal sexual content than, say, Pornhub—this is clearly more of a political move than anything else.

Mastercard and other credit companies have been under pressure from anti-porn religious groups (such as Exodus Cry) and others to stop doing any business with Pornhub, OnlyFans, and other purveyors of online adult content, much like they were pressured to stop doing business with Backpage and Craigslist a few years ago.


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How Economists Learned to Love Minimum Wage Hikes –

Would raising the federal minimum wage to $15 an hour cost jobs? That may seem like a strange question to ask. Forcing an economy-wide hike in the price of something typically means that people will purchase less of it. Other things being equal, forcing employers to pay more for low-wage labor is likely to mean they will employ fewer people.

In recent years, however, liberal policy wonks and Democratic Party stalwarts have begun to reject this answer, claiming, contrary to considerable evidence, that raising the minimum wage might result in no job losses at all. In 2014, President Barack Obama and Senate Democrats proposed raising the federal wage floor from $7.25 to $10.10 an hour. A Congressional Budget Office (CBO) analysis found that the proposal could reduce employment by 500,000 jobs. Yet the White House brushed off this analysis. “Zero is a perfectly reasonable estimate of the impact of minimum wage on employment,” said Obama administration economic adviser Jason Furman.

Since then, progressive lawmakers have continued to minimize or dismiss the possibility of negative employment effects from raising the minimum wage, even while backing proposals to raise it higher and higher. In 2019, Sen. Bernie Sanders (I–Vt.) cited a study from the union-backed Economic Policy Institute (EPI) that assumed no net job loss after instituting a $15 minimum wage.

This year, Democrats on the House Education and Labor Committee who favor a $15 federal minimum wage cited another EPI analysis. “High quality academic scholarship confirms that modest increases in the minimum wage have not led to detectable job losses,” it said.

What counts as modest? The EPI didn’t say. But President Joe Biden tucked a $15 minimum wage into the initial version of his $1.9 trillion COVID relief plan, which in theory was intended to boost the economy rather than harm it.

The debate goes back to a 1993 study by center-left economists Alan Krueger and David Card. In a paper published by the National Bureau of Economic Research, they examined the effect of a 1992 hike in New Jersey’s minimum wage by looking at fast-food restaurants in that state and a comparable sample across the border in Pennsylvania. They found no evidence that the New Jersey restaurants shed more jobs following the wage hike.

There were reasons to be wary of drawing larger policy lessons from that finding. For one, the study looked at less than a year’s worth of data. For another, the economies of New Jersey and Pennsylvania are not perfectly comparable, owing to various tax, regulatory, and other local factors. And the fast-food restaurants Krueger and Card studied were largely chains, which tend to be better capitalized than small, independent businesses, which are apt to be more sensitive to increases in labor costs. Finally, New Jersey’s wage increase was relatively small: a bump from $4.25 to $5.05 an hour.

Their paper nevertheless kicked off a revolution in left-of-center economic thinking. Many respected economists and policy makers on the left now believe and argue minimum wage hikes have minimal negative effects on employment.

Still, there are dissenters. They include University of California, Irvine, -economist David Neumark, who in January co-authored a survey that looked at 30 years of economic research on the minimum wage. That paper, also published by the National Bureau of Economic Research, found that a “clear preponderance”—almost 80 percent—of minimum wage studies since the beginning of the Clinton administration concluded that hikes cost jobs.

Some studies have found that fast-food restaurants cover wage hikes by passing the cost along to consumers rather than reducing employment. At best, this would mean a minimum wage hike acts as a kind of unacknowledged, poorly targeted tax increase that makes fast-food customers (not a particularly wealthy cohort) pay for higher federally mandated wages.

There is also the issue of scale. The 1992 New Jersey hike studied by Card and Krueger increased the base wage by less than 20 percent. Raising the federal minimum wage to $15 an hour would more than double it. A small hike might have a modest effect, especially in pricey urban areas where wages are already relatively high. A national doubling of the minimum wage is likely to have a bigger impact, especially in poorer and rural areas.

Krueger himself raised concerns about the push for a $15 federal minimum before his death. Such a change, he warned in a 2015 New York Times op-ed, “is beyond international experience, and could well be counterproductive. Although some high-wage cities and states could probably absorb a $15-an-hour minimum wage with little or no job loss, it is far from clear that the same could be said for every state, city and town in the United States.” Krueger wasn’t disowning his previous work; he was simply arguing that Democratic policy wisdom had taken his conclusions too far.

The Congressional Budget Office, meanwhile, continues to challenge the notion that increasing the minimum wage has a negligible impact on employment. In February, the nonpartisan budget watchdog produced an analysis of raising the minimum wage to $15.

By the time it took full effect in 2025, the CBO found, the change would result in a net loss of 1.4 million jobs. It said the effect would be concentrated among younger, less-skilled, low-wage workers, the group hit hardest by the COVID-19 recession. As it turned out, answering the original question about whether a wage hike will cost jobs is not so difficult. It takes only one word: Yes.

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Brickbat: Can I Take a Look at Your Photos, Too?

The British government is allowing pubs to reopen, with one catch. Drinkers will have to present their phones to pub staff to show they have registered on the National Health Services COVID-19 test-and-trace app. The app alerts people if they have been close to someone who tested positive for the disease. Pubs that don’t comply with the requirement may be fined up to £1,000 ($1,370 U.S.).

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No, We Don’t Need Biden’s $2.3 Trillion Infrastructure Plan –

While President Joe Biden’s administration doesn’t seem to need an excuse to spend money, two recurring arguments for his gigantic $2.3 trillion infrastructure proposal are that our roads and bridges are “crumbling,” and that modernization would generate economic growth and jobs—hence its name, the American Jobs Plan. But none of this clever marketing makes any of these claims true.

Let me start by pointing out that, to the extent that people think about roads and bridges when they hear the word “infrastructure,” they should know that only $621 billion of the $2.3 trillion is for transportation—and of that sum, only $115 billion is for repairing roads and bridges. The rest of the bill is mostly a handout to private companies that already invest heavily in infrastructure. These subsidies will come with federal red tape and regulation, and hinder job creation, not bolster it.

Also, while our infrastructure could certainly be modernized and could use some maintenance, it’s not crumbling. According to the World Economic Forum, U.S. infrastructure is ranked No. 13 in the world—which, out of 141 countries, isn’t too shabby, especially when considering the enormous size of our country and the challenges that presents.

Yet as Washington Post columnist Charles Lane notes, it would be more accurate to bundle European nations together, since they share a significant amount of infrastructure, which would move the United States into fifth place.

Moreover, while the American Society of Civil Engineers’ 2021 report card gave the United States a C-, this is its best grade in two decades—meaning that the quality of roads, bridges, inland waterways, or ports has been improving each year, without a congressional rescue plan. This fact doesn’t quite fit the crumbling infrastructure narrative that politicians and the media like to tout.

Academics also refute the idea that infrastructure is crumbling. Reviewing a large body of research in a National Bureau of Economic Research paper, Wharton University economist Gilles Duranton and his co-authors state: “Perhaps our main conclusion is that, on average, U.S. transportation infrastructure does not seem to be in the dire state that politicians and pundits describe. We find that the quality of interstate highways has improved, the quality of bridges is stable, and the age of buses and subway cars is also about constant.”

This is an important reminder that the private sector doesn’t seem to have any problem maintaining its infrastructure assets, as we see in the difference with railroads. Passenger rail is in mostly bad shape when owned publicly, whereas privately owned freight rail is mostly strong in quality. The best way to improve infrastructure isn’t to throw taxpayers’ money at it, but to privatize things such as passenger rail, airports, and air traffic controllers, as many other countries have done already.

Also, while the idea that building infrastructure will bring about more economic growth makes for a good talking point, it doesn’t work in practice. It’s proven that when there’s already economic growth occurring in a specific area, infrastructure spending targeted to support the boom will promote even more growth. But simply building infrastructure in the hope that it will create growth isn’t supported by evidence. For instance, in their review of the literature, Duranton and his colleagues find “little compelling evidence about transportation infrastructure creating economic growth.” One reason is that a supply of more infrastructure is likely to be a total waste of money if there’s no actual demand for it.

What’s more, looking at spending on highway construction in the Great Recession stimulus bill, economist Valerie A. Ramey concluded that “there is scant empirical evidence that infrastructure investment, or public investment in general, has a short-run stimulus effect. There are more papers that find negative effects on employment than positive effects on employment.” What that spending does do, however, is displace private investments. This is unfortunate, since the Congressional Budget Office found that private spending produces twice the return as does public spending.

Finally, in theory, government spending could lead to higher growth in the longer term. Unfortunately, legislators’ well-documented tendency to make decisions based on politics often leads them to favor projects that are outdated, expensive, and never profitable at the expense of private and profitable alternatives. Rail and transit projects come to mind.

The bottom line is this: Politicians make a lot of promises, but we shouldn’t always believe them.


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COVID-19 Is Leading State Lawmakers To Finally Restrain Governors’ Emergency Powers –

The erratic and authoritarian ways governors across the country have responded to the COVID-19 pandemic have prompted state lawmakers to restrain the authority of the executive branch. This is good news for the separation of powers in state government and an opportunity for average folks to reclaim some autonomy.

For people in many states, governors have responded to the pandemic with a complicated and ever-shifting “Hokey Pokey” of demands and bans, many of which appeared to be completely unrelated to the actual science of the spread of the coronavirus. Some decisions, like New York Gov. Andrew Cuomo’s demand that nursing homes take in elderly people infected with COVID-19, made the pandemic even worse.

It’s supposed to be the province of lawmakers to decide what citizens must and must not do and pass laws that clearly explain these rules so that police and regulators can consistently and fairly apply them.

But governors and agents of the executive branch are given more flexibility to call the shots when an emergency comes around, and we’ve seen governors flex these emergency powers in harmful and oppressive ways that have failed to even serve their primary goal of stopping the spread of COVID-19. California Gov. Gavin Newsom is finally letting businesses and entertainment venues within the state serve more people indoors, months after Florida’s Gov. Ron DeSantis did the same. Yet, the two states ended up with strikingly similar infection and death rates. California citizens have been fighting back and even winning.

Today Nick Niedzwiadek reports at Politico that lawmakers are attempting to recover some of their lost authority to define the rules:

Lawmakers in nearly every state in the country have introduced a combined 300-plus bills this year related to governor’s emergency authority or executive action taken during the fight against Covid-19, according to the National Conference of State Legislatures. Only a fraction of those measures are likely to ultimately move out of committee, let alone be enacted into law, but the bills nevertheless reflect the considerable interest in recalibrating governors’ emergency authorities.

Niedzwiadek initially frames the dispute as partisan in his lede: Republican Kentucky lawmakers passed several bills to restrain the emergency powers of Democratic Gov. Andrew Beshear. One of the bills limits the duration of the governor’s emergency orders to 30 days unless the state’s General Assembly approves an extension. Beshear vetoed the bills, but lawmakers overruled him.

But Niedwiadek then quickly expands the view to show that it’s not really a partisan divide. Republican and Democratic lawmakers are now increasingly concerned even when somebody from their own party is governor.

Cuomo is an obvious example here. The Democrat-dominated New York Assembly voted in March to strip the governor of his emergency powers in the wake of the scandals consuming his office.

The same is true of Republicans in Ohio, who voted to override a veto by Republican Gov. Mike DeWine and pass a law that allows the Ohio Assembly to rescind standing orders by the state’s health department, and creates an oversight and advisory committee to examine emergency health orders.

Governors may complain about this loss of authority, but they should look at California and consider the alternatives. Newsom now faces a recall election, and while partisanship may have initially fueled the effort, the reality is that his office’s intrusive and often nonsensical rules on reopening within the state have caused economic harm to many, many citizens. The fact that organizers were able to gather enough signatures to recall a Democratic governor in a state with a Republican Party in deep decline (24.2 percent of voters) is a sign that voters don’t want governors misusing their emergency powers for wide-ranging, long-term diktats.

While it may feel like COVID-19 spread like wildfire, long-term policies that alter what is allowed, what is forbidden, and what is mandated should be funneled through legislatures and debated.

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A Defense Witness Says the Cops Who Pinned George Floyd to the Pavement Were Not Using Force –

The defense in Derek Chauvin’s murder trial yesterday presented testimony from a use-of-force expert who said the former Minneapolis police officer’s “interactions” with George Floyd “were following his training, following current practices in policing, and were objectively reasonable.” That conclusion contradicted the testimony of the city’s police chief, other supervisors, and other use-of-force experts. It was also highly implausible, relying on dubious definitions, eyebrow-raising assumptions, and the omission of crucial details.

Incredibly, former police officer Barry Brodd testified that pinning a handcuffed Floyd facedown on the pavement for nine and a half minutes did not constitute a use of force. “I don’t consider a prone control as a use of force,” he said. “The maintaining of the prone control, to me, is not a use of force…because it’s a control technique. It doesn’t hurt. You’ve put the suspect in a position where it’s safe for you, the officer, safe for them, the suspect, and you’re using minimal effort to keep them on the ground.”

While Chauvin was using this “control technique,” he had one knee on Floyd’s neck and the other on his arm or back. Officer J. Alexander Kueng also was applying pressure to Floyd’s back, while Officer Thomas Lane was holding down his legs. But according to Brodd, the officers were not using force, because they were not hurting Floyd.

Yet Brodd admitted during cross-examination that pressing Floyd against the pavement “could produce pain,” in which case, according to his idiosyncratic definition, it would qualify as a use of force. As prosecutor Steve Schleicher pointed out, Floyd repeatedly complained that he was in pain. He said his neck, stomach, and “everything” hurt. Hennepin County Chief Medical Examiner Andrew Baker testified that Floyd had abrasions on his cheek and shoulder from contact with the pavement.

Los Angles Police Department Sgt. Jody Snider, a use-of-force expert, testified that the officers used “pain compliance” techniques on Floyd’s hands and wrists. “If the officers were manipulating Mr. Floyd’s hands in a way that would create pain,” Brodd conceded, “then I would say yes, that would be a use of force.”

In any case, the Minneapolis Police Department’s definition of force does not require the infliction of pain. “Do you accept that the Minneapolis Police Department generally defines force to include restraint?” Schleicher asked. Brodd acknowledged that Schleicher was right about that.

Given that Chauvin used force against Floyd (a point I did not realize was up for debate until I watched Brodd’s testimony), was that use of force justified in the circumstances? While addressing that question, Brodd, prodded by defense attorney Eric Nelson, introduced several irrelevancies.

The officers believed that Floyd, who had ingested black-market “Percocet” tablets that contained fentanyl and methamphetamine, was under the influence of drugs. “Drug-influenced” suspects, Brodd averred, “don’t feel pain” and “may have superhuman strength”—an old canard with racist roots that police tend to drag out when they are accused of using excessive force.

Even drug warriors who still promote this myth generally do not claim that opioids like fentanyl make people aggressive or enable them to overpower several police officers at once. And while they do make that claim about methamphetamine, prior testimony indicated that the amount of that drug consumed by Floyd was comparable to a single prescribed dose. Superhuman strength and insensitivity to pain are not commonly noted side effects of Desoxyn or of other oral stimulants with similar effects, such as Adderall and Ritalin.

In any event, Floyd was not displaying the characteristics that Brodd attributes to “drug-influenced persons” during his prone restraint. Far from demonstrating superhuman strength, he was at the cops’ mercy, and he certainly was not insensible to pain, judging from his repeated complaints that the officers were hurting him. Yet Nelson seems to think that introducing discredited notions about how people behave when they are “on something” will distract jurors from what actually happened in this case.

Speaking of distraction, Brodd reinforced the defense argument that bystanders who objected to the officers’ treatment of Floyd drew Chauvin’s attention away from the man under his knee. That claim is inconsistent with much of the video record, which shows Chauvin  looking at Floyd, acknowledging his complaints, and talking to his colleagues about how Floyd should be treated.

The defense makes it sound as if the officers were facing an incipient riot. But for much of the time, the bystanders were simply watching the encounter and recording it on their cellphones. Even when some of them were moved to criticize the officers’ conduct and express concern about Floyd’s welfare, they were not violent and did not make any threats. And regardless of what the bystanders were doing, as Schleicher pointed out and Brodd agreed, their behavior cannot legally justify the use of force against Floyd.

Nor can it justify the officers’ failure to perform CPR after Floyd became unconscious and no longer had a detectable pulse. Brodd suggested it was reasonable for them to “wait for the professionals to show up.” But he also acknowledged that they had a duty to care for Floyd—a duty that was not obviated by the fact that an ambulance was on the way.

Brodd also noted that Floyd, who initially seemed to be having a panic attack, struggled with Kueng and Lane when they tried to force him into the back of their squad car after they arrested him for using a counterfeit $20 bill to buy cigarettes. Floyd said he was claustrophobic, complained that he could not breathe, and asked to ride in the front seat. But once Kueng and Lane pulled him out of the car and onto the street, Floyd, at this point handcuffed and kneeling, stopped struggling and thanked them.

That was when Chauvin, Kueng, and Lane tackled Floyd and pinned him to the ground on his stomach, keeping him there despite his complaints that he was having trouble breathing and despite bystanders’ warnings that his life was in danger. Chauvin continued kneeling on Floyd even after he stopped talking, became unresponsive, and no longer had a detectable pulse. The fact that Floyd had earlier resisted Kueng and Lane cannot justify this continued use of force.

Brodd claimed that Floyd was still resisting the officers even when they had him pinned. But his definition of resistance is broad:

Brodd: It appeared to me in that video that he was still struggling.

Schleicher: Struggling or writhing?

Brodd: I don’t know the difference.

Schleicher: Would a reasonable police officer on the scene consider whether somebody is actively resisting or writhing on the ground because they can’t breathe?

Brodd responded that it was reasonable to discount Floyd’s 27 complaints that he could not breathe because he had said something similar during the struggle inside the squad car. Schleicher suggested that it was not reasonable to ignore Floyd’s complaints once the officers were pressing him against the pavement, a different context in which it was less plausible that Floyd was faking.

Brodd’s idea of how Floyd would have behaved if he were “perfectly compliant” underlines how police interpret distress as resistance:

Brodd: A compliant person would have both their hands in the small of their back and just be resting comfortably…He is still moving around.

Schleicher: Did you say “resting comfortably”?

Brodd: Or lying comfortably.

Schleicher: Resting comfortably on the pavement?

Brodd: Yes.

Schleicher: At this point in time…he’s attempting to breathe by shoving his shoulder into the pavement.

Brodd: I was describing what the signs of a perfectly compliant person would be.

Schleicher: So attempting to breathe while restrained is being slightly noncompliant?

Brodd: No.

Brodd’s discussion of “positional asphyxia,” which is what the prosecution says killed Floyd, likewise had an air of unreality. He initially suggested that the hazard is relevant only when police are dealing with an “extremely obese” suspect whose body weight would press against his lungs when he lies on his stomach. But during cross-examination, he conceded that there could be a risk of positional asphyxia when police apply their own body weight to a thinner person in that position. He also acknowledged that the Minneapolis police officers are trained to move suspects to a “side recovery position” because of that danger, which he said is widely recognized by police.

Lane twice suggested that Floyd should be rolled onto his side, but Chauvin flatly rejected the idea. “In this situation, there [were] space limitations,” Brodd said. “Mr. Floyd was butted up against the tire of the patrol car. There was traffic still driving down the street. There were crowd issues that took the attention of the officers. Mr. Floyd was still somewhat resisting. So I think those were relatively valid reasons to keep him in the prone [position].” According to prosecution witnesses, including the police chief, the decision that Brodd calls “relatively valid” was objectively unreasonable and a clear violation of department policy.

Even by Brodd’s account, Floyd was “actively resisting” or “struggling against the officers” for “a couple of minutes.” Yet Chauvin kept kneeling on Floyd for an additional seven and a half minutes. At one point, Lane said, “He’s passing out.” Brodd conceded that Floyd did not seem to be resisting after he lost consciousness. Yet Chauvin maintained his position over Floyd for nearly five minutes after he became unresponsive, even after Kueng said he could not find a pulse.

While the prosecution says the prolonged prone restraint killed Floyd, Brodd said it was for his own good. Given an intoxicated suspect’s “potential erratic behavior, going from compliant to noncompliant, not feeling any pain, potentially having superhuman strength,” he averred, “it’s just safer for the officer and for the suspect to keep them in that prone control.”

How is it safer for the suspect? “If they were to get up and run, handcuffed,” Brodd said, they could “trip and fall, sustain facial injuries, other injuries. On the ground, their mobility is reduced…and their ability to hurt themselves is reduced.” If you believe Brodd, the cops killed Floyd to stop him from hurting himself.

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Why We Keep Falling for Psychological Quick Fixes –

Do you remember the “power pose” craze from about a decade ago? In the second-most popular TED talk ever, psychologist Amy Cuddy has told over 60 million viewers that they can change their lives by simply changing their body language.

If you grew up in the 1990s, you probably experienced classes devoted to boosting your self-esteem, independent of your actual achievements on tests or assignments.

Have you taken the Implicit Association Test or IAT, which claims to test your unconscious bias against minorities and other groups? It is routinely used in all sorts of diversity training programs and educational settings, from K-12 through college.

These are all examples of what science writer and podcaster Jesse Singal calls “quick fixes” that attempt to address pressing social issues based on fundamentally flawed research. In The Quick Fix: Why Fad Psychology Can’t Cure Our Social Ills, Singal looks at these and other attempts to change social policy based on bad or faulty science.

One of Cuddy’s fellow researchers has said that their research doesn’t prove anything in the real world. The K-12 curriculum that started the self-esteem boom was based on a misreading of Nathaniel Branden’s work by a single powerful California politician. And the IAT is not only unreliable—the same individual will generate very different scores when they retake the test—it’s not clear that “unconscious bias” is a major influence on how we act toward one another.

Singal, co-host of the popular podcast Blocked & Reported, tells Nick Gillespie his goal is to explain why we keep falling for ideas that psychologists say will fix society. He hopes that we’ll waste less time focusing on things that don’t really help anyone.

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Arizona Attorney General Mark Brnovich Sues Biden Administration for Not Studying the Environmental Impact of More Migrants Coming Into the U.S.

President Joe Biden’s modest rollback of former President Donald Trump’s border policies is attracting some novel legal challenges from anti-immigrant conservatives.

On Sunday, Arizona Attorney General Mark Brnovich sued the Biden administration in the U.S. District Court of Arizona over the federal government’s pause on border wall construction and the decision to end a policy requiring asylum seekers to remain in Mexico.

Both policy changes, argues Brnovich, should have had to undergo the kinds of environmental review normally required of federal infrastructure projects because they would increase Arizona’s population.

“Migrants (like everyone else) need housing, infrastructure, hospitals, and schools. They drive cars, purchase goods, and use public parks and other facilities. Their actions also directly result in the release of pollutants, carbon dioxide, and other greenhouse gases,” reads the complaint. “All of these activities have significant environment impact.”

His lawsuit takes issue with two specific actions of the Biden administration.

The first is a January 20 executive order freezing border wall construction and redirecting border wall funding to other priorities. The second is the administration’s February decision to start unwinding Trump’s Migrant Protection Protocol program (MPP) which required people who showed up at the southern border seeking asylum to return to Mexico while they wait for a court hearing. Because of the current administration’s changes, many of the people kept on the Mexico side of the border because of MPP are now being allowed into the U.S.

Both of those policy changes have proven controversial. The Government Accountability Office, the watchdog arm of Congress, said in March that it would examine the legality of the president’s pause of border wall funding.

The attorneys general of Texas and Missouri have also sued the Biden administration over its unwinding of MPP. Those lawsuits make more traditional legal claims that the administration’s decision was “arbitrary and capricious” and didn’t give state governments enough notice.

Brnovich is making the more unusual argument that the administration’s course change on immigration violates the National Environmental Policy Act (NEPA).

NEPA requires that federal agencies study the impacts of their actions on the environment, whether that’s funding a new highway or permitting a new power plant.

These environmental studies can be quite onerous. The average Environmental Impact Statement (EIS)—the most rigorous level of analysis required by NEPA—takes 4.5 years on average and results in reports 669 pages long on average.

NEPA also allows third parties to sue over environmental reports they feel didn’t adequately examine this or that environmental impact, stretching things out even longer.

Streamlining the NEPA process was a signature goal of the Trump administration. In July 2020, it finalized a number of administrative reforms that limited what environmental impacts federal agencies would have to consider and expanded the scope of how much federal involvement was necessary to trigger NEPA requirements.

Somewhat ironically, Brnovich is now looking to expand what kinds of federal actions should be subject to NEPA in order to save several other signature Trump administration immigration policies.

“As a direct and foreseeable consequence of the gaps in the nation’s border wall… migrants have been crossing the border in Arizona in greater numbers than ever before,” reads Brnovich’s complaint, citing the 171,000 migrants encountered by Customs and Border Patrol (CBP) on the border in March.

“Thousands of individuals have been released and are being released into Arizona as a result of the termination of this program that otherwise would never have entered the country,” continues the complaint in respect to the MPP unwinding. “Despite the intent to cause this outcome, at no time did Defendants undertake any analysis of the environmental impacts on the human environment in Arizona of this additional population.”

Brnovich’s lawsuit asks that Biden’s border wall pause and changes to MPP be overturned until a full Environmental Impact Statement is prepared on the consequences of all those migrants being allowed into his state.

Beginning in 2016, a collection of anti-immigrant groups, ranching associations, and conservation districts sued the then-Obama administration over its failure to subject its own immigration policies to NEPA review. That lawsuit was dismissed by a U.S. District Court in 2020 and is now being appealed.

The Arizona lawsuit points to a Ninth Circuit Court of Appeals decision in a NEPA case that held that an Environmental Impact Study sometimes needs to account for population growth.

Even with that decision, “it seems rather a jump to say that review is therefore needed for the whole class of government actions that invite an increase in population, whether or not directed at the development of a particular tract of land or group of tracts,” says Walter Olson, a legal scholar at the Cato Institute.

“Arizona actively encourages in-migration by promoting the attractiveness of the state as a place to live and do business. Should it have to conduct an environmental impact study assessing the impact on development and limited resources before it does this?” Olson says.

In an interview with Fox and Friends, Brnovich seemed to acknowledge the trollish nature of his lawsuit, saying that NEPA “is what the left always uses to stop highway projects and airport reconstruction.”

“We are saying that by stopping the wall construction they are violating NEPA by allowing more and more people coming into this country and that’s having a devastating impact on our environment and it’s also impacting the increase in population which will have all sorts of impacts down the road,” he continued, adding that migrants crossing over the border also litter a lot.

Arizona’s lawsuit is still fresh and the government has yet to respond. It will remain to be seen if a court will entertain the attorney general’s novel invocation of NEPA.

Legal merits aside, it is deeply concerning that some elected officials think we should be treating individual humans as pollutants by virtue of them coming from another country.

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After Promising To Stop Land Seizures, the Biden Administration Just Stole This Family’s Property for a Border Wall –

A federal judge confirmed yesterday that a Texas family will have their land immediately seized by eminent domain for a U.S.-Mexico border wall—the very type of confiscation that President Joe Biden expressly promised he would put a stop to.

“We are utterly devastated,” said Baudilia Cavazos, whose family owns land in Hidalgo County, Texas. “We thought President Joe Biden would protect us. Now we’ve lost our land. We don’t even know what comes next.”

The Cavazos clan has fended off similar attempts at confiscation for years. When former President Donald Trump took office, his administration sought to claim about 7 acres and divide their land—which they rent to various tenants—in two. A huge chunk of their property would thus be nearly inaccessible to prospective customers, paralyzing their business.

“I retired five years ago—I taught for 40 years,” Eloisa Cavazos told Reason in 2018. “This is my income that I use for my retirement.”

She may have to find a new source of revenue. “The Court already addressed many of Defendant’s arguments—including the United States’ compliance with statutory requirements, whether the taking was arbitrary and capricious, and whether the United States satisfied the negotiation requirements,” wrote District Judge Micaela Alvarez of the United States District Court for the Southern District of Texas. “For the same reasons outlined above, the Court rejects Defendant’s argument that immediate possession should be delayed on these bases.”

The Biden administration could well have come between yesterday’s decision, handed down by Alvarez in McAllen, Texas. On Biden’s first day in office, the administration issued a proclamation pausing border wall construction for 60 days to determine if any land needed to be confiscated. That 60 days came and went without a decision.

Yet he was insistent the decision was already made on the campaign trail. “There will not be another foot of wall constructed in my administration,” he told NPR’s Lulu Garcia-Navarro in August of last year. And the land seizures? “End, end, end, stop, done, over. Not gonna do it. Withdraw the lawsuits. We’re out.”

He did not, in fact, withdraw the lawsuits. “Yesterday, we witnessed a betrayal of the Biden Administration’s commitment to end construction of the border wall,” said Ricky Garza, an attorney for the Texas Civil Rights Project, in a statement. “In federal court, the President’s pause on border wall construction is meaningless without immediate action from the DOJ to dismiss these cases.”

The news marks yet another promise broken by Biden and Vice President Kamala Harris, both of whom cast themselves as foils to Trump’s merciless immigration program. Their administration is defending Immigration and Customs Enforcement (ICE) after the agency set up a fake college, charged immigrant students thousands of dollars, and then deported them without refunds. Not unlike Biden did with land seizures, Harris in 2019 called out the ruse and declared that “officials must be held accountable.” Biden has also continued the practice of separating some families at the border, and in various ways has restricted asylum claims even more than his predecessor.

The Cavazoses, including Eloisa’s brother Fred Cavazos and Rey Anzaldua, their first cousin, have watched their land steadily dwindle over the years. Descendants of 1700s-era Spanish settlers, the family began with 18,000 acres.

“Now we probably have no more than 150 acres,” Anzaldua told Reason‘s Mark McDaniel three years back. “That’s a lot of land to lose.”

They’re about to hemorrhage more. “We’re liable to lose about 10 acres, three barns, and two houses,” said Anzaldua, “so when they asked if I could help with this, I said, ‘Yes, I’ve got ties to this land just like you do. This is our grandmother’s land.'”

Despite all of Biden’s promises to the contrary, it is now the government’s land.