Month: July 2024

Not everyone appreciated the green mamba snake last week, so here's a cute little wallaby chewing on a leaf. This particular brand of wallaby is a tammar wallaby, named after "thickets of the shrub locally known as tamma that sheltered it in Western Australia."

This of course just begs the question of where that got its name, but here our inquiry stops. Tamma sheoak, aka Allocasuarina corniculata, is apparently a huge pain in the ass, but Google says no more about it. In fact, most of the search results merely tell you that it's the source of the name of the tammar wallaby. Anyone feel like digging a little deeper?

I sympathize with lifelong Republicans who hate Democrats and therefore remain unsure of whether to vote for Donald Trump. After all, I've long wondered how bad a Democrat would have to be to make me vote for a Republican. The problem is that I've never been able to come up with a plausible Democrat as bad as Trump.

But now we have a Democrat who isn't a horrible person but—just as bad—seems mentally unfit for the presidency. I'll still vote for him because the alternative is Trump, but what would I do if his opponent were a normie Republican like, say, Mitt Romney?

Just as I think decent Republicans should refuse to vote for Trump, I'd like to think I'd defect to Romney. But would I? I'm not quite being put to the test thanks to the unique horror of the Republican candidate, but it's getting too close for comfort.

Hiring ticked up 2.5% in May, but after two years of decline it's still well below its pre-pandemic trend:

Hiring looks to be leveling out a bit, which is sort of consistent with the soft landing hypothesis. We can hope.

Early this year the Department of Energy paused approvals of new LNG terminals. Several states sued, saying the decision was arbitrary and was costing them a lot of money.

Yesterday a Trump-appointed judge in Louisiana (of course) issued a preliminary injunction against the pause and told DOE to start issuing approvals again. It's possible that his ruling is correct. The pause was pretty obviously political in nature; it was ordered without the usual regulatory process; and it reversed a longstanding policy of approving most LNG terminals expeditiously.

Nonetheless I want to highlight a couple of passages from judge James Cain's opinion:

The Defendants’ choice to halt permits to export natural gas to foreign companies is quite complexing to this Court.... [It] is completely without reason or logic and is perhaps the epiphany of ideocracy.

What is this supposed to mean? It turns out that complexing actually is a word: It has to do with the process of binding two atoms to form a complex. However, a less-used definition is complicating. But neither makes sense. Perhaps his honor meant perplexing?

Then there's epiphany, which means a sudden inspiration or understanding. That also makes no sense. Perhaps he meant epitome?

Finally there's ideocracy. As it happens, this is actually a word too. It apparently refers to a society governed by a single overarching ideology. That seems unlikely, though. Perhaps he meant idiocracy?

Who edits these things? Anybody?

Nonresidential construction fell in May, marking the fifth straight month of losses. The post-pandemic building boom has well and truly ended.

I'm no great fan of today's Supreme Court ruling on presidential immunity, but I've seen some fairly outlandish responses about how this makes the president a king, or it allows the president to assassinate political opponents, etc. Everyone needs to cool down a bit on this.

First, it's true that this is the first time a president has been granted immunity from criminal prosecution. But that's only because it's never come up before. Most presidents except Richard Nixon haven't engaged in criminal behavior, and Nixon was pardoned before it became a live issue. Trump just happens to be first overtly lawless president.

Second, immunity for official acts isn't uncommon. In addition to the US, you'll find it in India, Italy, Japan, Mexico, Poland, the UK, Germany, and Brazil, among others. The reason is precisely the one the Supreme Court laid out: We want presidents to have a wide scope for decisive action. We don't want them hamstrung by fears that some enterprising prosecutor will someday try to toss them in jail for actions that they simply disagree with.¹

Third, the Court's decision doesn't mean that presidents can willy nilly decide to assassinate someone they don't like. Immunity applies only to official actions, and while that's a broad scope it's not infinite. Bribery is still illegal, even if you're president, and so is murder.

On that score, though, I'm baffled by the Court's opinion that the president's motivations don't matter. It's hard to see how this can stand. If, for example, the president authorizes a military strike that kills a US citizen, it certainly does matter what his motivation was. If it's because the citizen was hanging out with a gang of terrorists, the president would certainly be immune from later prosecution. But if you could provide evidence that the president actually wanted the person killed because he'd had an affair with his wife, that would surely be prosecutable.

Bottom line: it was a very broad decision. However, it doesn't literally make the president above the law, least of all Trump. In fact, it most likely leaves one of the charges against him still standing—though we won't know for sure until the case makes its way back to the Supreme Court for a definitive ruling. In the meantime, don't go to pieces over this.

¹It's an article of faith among conservatives, for example, that Joe Biden's suspension of student debt was the worst kind of plainly lawless behavior. Do we even want to take a chance that someday a few wingnuts will convince a state prosecutor to put this case in front of a friendly judge? Of course not. It's a political act obviously within the president's official duties, and that should be that.

Today brings weird news. It's bad news, but peculiar bad news.

As you'll recall, the main marker of multiple myeloma is M-protein. The lower the better, and late last year it dipped below detectable levels. A second test, serum immunofixation, went from detecting cancer to maybe detecting something to flatly reporting no hint of cancer. That was in April. In May it returned to maybe.

Today, I got back the test results from a week ago. For the first time in six months the immunofixation test reported definite cancer and my M-protein level spiked to 0.31.

I am, as usual, unable to get a straight answer about just how unusual this is. But obviously it's not common. The immunofixation result has gone from zero to definite cancer in eight weeks and the M-protein test has gone from zero all the way up to 0.31 in four weeks with nothing in between. That makes no sense, especially since my multiple myeloma has always been fairly well behaved.

But it is what it is. My CAR-T doctor called me today with the news and asked if I was willing to be part of a clinical trial. There aren't a lot of other options left. So sometime soon I'll probably be back at City of Hope to hear about what's available. We'll just have to figure out how to squeeze this into the schedule for my other cancer.

We have one final Supreme Court decision to look at this year: Moody v. NetChoice. It's a bit tricky. The headline result is that it was a unanimous opinion, and technically that's true. In reality, it was probably more like a 6-3 decision.

The background is pretty simple: Texas and Florida both passed laws banning social media companies from "censoring" content based on viewpoint. They did this primarily because they felt that Facebook and others were unfairly removing conservative views in their main news feeds.

The unanimous part of today's decision concerned a technical question about "facial" challenges. Normally, you can only sue over a specific harm. But in this case, NetChoice sued on grounds that the Texas and Florida laws were facially unconstitutional. That is, they so plainly violated the First Amendment under all possible circumstances that they should be overturned.

There's a high bar for facial challenges, and all nine justices agreed that NetChoice hadn't met it. So they sent the case back to the district court for more argument.

But that's not the end of it. The majority opinion spends a lot of time providing advice ("dicta") on how courts should treat First Amendment cases. This is not, strictly speaking, part of the formal opinion and has no legal authority. Still, it gives you a pretty good idea of how the justices are likely to rule once the case winds its way back to them.

And six of the justices are pretty clear: in the main, social media platforms engage in expressive conduct and the First Amendment protects their right to do that free of government interference. They say this over and over and over:

The Fifth Circuit was wrong in concluding that Texas’s restrictions on the platforms’ selection, ordering, and labeling of third-party posts do not interfere with expression.... The First Amendment offers protection when an entity engaging in expressive activity, including compiling and curating others’ speech, is directed to accommodate messages it would prefer to exclude.... The government may not, in supposed pursuit of better expressive balance, alter a private speaker’s own editorial choices about the mix of speech it wants to convey.... Texas’s law profoundly alters the platforms’ choices about the views they will, and will not, convey. And we have time and again held that type of regulation to interfere with protected speech.... A State may not interfere with private actors’ speech to advance its own vision of ideological balance.

....The interest Texas asserts is in changing the balance of speech on the major platforms’ feeds, so that messages now excluded will be included. To describe that interest, the State borrows language from this Court’s First Amendment cases, maintaining that it is preventing “viewpoint discrimination.” But the Court uses that language to say what governments cannot do: They cannot prohibit private actors from expressing certain views. [Italics mine.]

There's more, but overall it's a relentless demolition of the notion that governments can regulate the expressive speech of individuals or corporations in any way.

The ultra-conservative wing (Alito, Thomas, and Gorsuch), however, was not as convinced. Technically their dissent is a concurrence, since they agree that the case needs to be sent back for more fact-finding. But it's really a dissent in all but name. The majority rejected the facial challenge because—who knows?—the laws in question might be OK as applied to certain parts of certain platforms. Direct messaging, for example. So the lower courts need to substantially broaden their findings to cover more than just Facebook's main news feed.

The minority agrees but goes further: they say that even as it applies to the main feeds, the two laws might just be constitutional. In a "just asking questions" style, they pose a long laundry list of issues for lower courts to consider. Maybe Facebook should be treated as a common carrier. Maybe a news feed isn't truly "expressive speech." Maybe free speech applies to some platforms but not others:

On the present record, we are ill-equipped to account for the many platform-specific features that allow users to do things like sell or purchase goods, live-stream events, request a ride, arrange a date, create a discussion forum, wire money to friends, play a video game, hire an employee, log a run, or agree to watch a dog.

What's more, some sites moderate via algorithm and some via human interaction. Plus they're really, really big! And there are network effects. And AI. And anyway, how much difference could the laws make, since they affect only a "small amount of discordant speech"? (Though literally moments later the dissent mentions the "billions of nonconforming comments that YouTube removes each year.")

In other words, when the case eventually comes back, there's no guarantee that the minority will agree even about the narrow issue of restricting free speech. After all, it's conservative speech we're talking about, and that's special. Right?

However, I have to admit that the dissent has one sentence I approve of:

While the meaning of the Constitution remains constant, the application of enduring principles to new technology requires an understanding of that technology and its effects.

Quite true! This is something that liberals keep pointing out when conservatives go into their originalist crouches. It's funny that the ultra-cons suddenly become such living constitutionalists when conservative interests are at stake.

Over at National Review, Matthew Wilson clucks over Taraji P. Henson's claim that the Supreme Court has criminalized homelessness:

In fact, the Supreme Court did not make it a “crime to be homeless.” In Johnson, the Court held that it is not a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment for local governments to simply enforce laws against sleeping or camping in public places. Justice Neil Gorsuch correctly noted in the majority opinion that neither the Court’s ruling nor the law it was reviewing criminalize the “mere status” of being homeless.

It's true that Gorsuch said this. Many times! But saying it doesn't make it so. The Court ruled that even if no shelter beds were available, cities could still make it illegal to sleep in public places.

Not merely illegal to pitch a tent. Not merely illegal to haul out a sleeping bag. Illegal to sleep with so much as a blanket covering you. You can repeat all day long that this only criminalizes conduct, not the mere fact of being homeless, but saying the sky is green doesn't make it green. The plain fact is that if you have nowhere to go, then criminalizing sleep is effectively a prohibition against being homeless.

It's possible that this case was correctly decided on pragmatic terms. Maybe even on technical Eighth Amendment grounds, though that's iffy. Wilson is correct that plenty of progressive West Coast politicians welcomed the ruling because they believe that tackling homelessness is made more difficult by micromanagement from the courts. I sympathize with that.

Nonetheless, it's clear from the evidence that the city of Grants Pass had the goal of forcing homeless people out of town. The Court ruled this was OK as long as it somehow maintained the thin veneer of criminalizing conduct. But a thin veneer is all it is. The Supreme Court has given cities the power to make homelessness illegal in pretty much any way they choose.

This is the famous statue of Athena outside of Parlament¹ in Vienna. As you may remember, Athena has always been my favorite of the Greeks gods. She could kick butt when she needed to, but had the wisdom to know when not to. As for her unfortunate participation in the Trojan War, we'll just let bygones be bygones.

¹That's German for parliament.