Kevin Drum

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.

I overslept and then had to hop into my car for my first radiation treatment. So I'm a little late to the news. On the bright side, I'm now 1/28th of the way to a healthy prostate.

And now the news. The big news, obviously, is that the Supreme Court finally roused itself to rule on Donald Trump's immunity from federal prosecution for his actions related to January 6. To recap things, there are four charges against Trump:

1. Conspiracy to defraud the United States.
2. Conspiracy to obstruct an official proceeding.
3. Obstruction of and attempt to obstruct an official proceeding.
4. Conspiracy against rights.

#2 and #3 are based on violations of the Sarbanes-Oxley Act, which the Court already tossed out on Friday when it ruled that Sarbanes-Oxley couldn't be used to prosecute the January 6 rioters.

#1 and #4 are more complicated. The Court ruled that some aspects of the indictment are subject to immunity and some aren't:

• Trump is absolutely immune against charges of talking with the Attorney General or other members of the Justice Department.
• Trump is probably immune against charges of trying to pressure the vice president.
• He is also probably immune against charges related to tweets or other forms of public communication.
• Trump might be immune against charges of conspiring with state officials to change the official vote count.

However, because this is a unique case, the Court didn't rule on the questionable immunity charges. Instead, it remanded them back to the district court for further fact finding and consideration. After that, of course, it will get appealed to a circuit court and then finally land back in the lap of the Supreme Court.

This will delay things a very long time. Long enough that if Trump wins in November he'll have ample time to kill the prosecution entirely. If he doesn't, though, how are these things likely to go?

My read of the opinion is that the only part of the indictment that will remain standing is the charge of conspiring to influence state legislatures to investigate election fraud. The three liberals on the Court are on board with that, and so is Amy Coney Barrett:

The indictment alleges that the President “asked the Arizona House Speaker to call the legislature into session to hold a hearing” about election fraud claims. The President has no authority over state legislatures or their leadership, so it is hard to see how prosecuting him for crimes committed when dealing with the Arizona House Speaker would unconstitutionally intrude on executive power.

I wouldn't be surprised if at least one of the other conservative justices agreed with this. That would leave prosecutor Jack Smith with a very stripped down case aimed solely at Trump's actions with regard to state officials. That might be enough and it might not.

For some time, I've been watching videos of Joe Biden to see for myself if he was showing signs of cognitive decline. Time after time, the answer was no. He had obvious physical limitations, but mentally he had no problems. What's more, all indications suggested he was carrying out the duties of the presidency just fine.

That makes his performance last Thursday genuinely puzzling. Nevertheless, it was what it was: the performance of a man who was halting, confused, lost, and sometimes just plain incoherent. The evidence of cognitive decay was so obvious that even Biden partisans couldn't spin it away.

Sadly, this 90-minute look into Biden's mental state—temporary or not—makes it clear that he shouldn't be president any longer. It's too risky. He should resign the office immediately and turn the reins over to Kamala Harris.

And what then should Harris do? This is purely a question of politics. I can hardly believe I'm about to say this, but my suggestion would be to talk a moderate Republican—a Rob Portman type—into becoming her vice president and running mate and creating a bipartisan front against Donald Trump. This would shake things up enough to give her a chance of beating Trump in November.

This kind of suggestion is a horrible cliche, but it has possibilities. It's not the most important thing, though. What's important is that the president can't be a person who's obviously not all there—even if that's true only occasionally. Biden needs to leave office with dignity while he still can.

Donald Trump also flitted from subject to subject during Thursday's debate, but his primary sin was his ceaseless stream of lies. Here are a baker's dozen of them.

1. Tariffs:

Not going to drive [prices] higher. It’s just going to cause countries that have been ripping us off for years, like China and many others, in all fairness to China — it’s going to just force them to pay us a lot of money, reduce our deficit tremendously, and give us a lot of power for other things.

Flat out lie. Tariffs are paid by the importer, who then has to pass along the cost increase to its customers.

2. Social Security:

This man is going to single-handedly destroy Social Security. These millions and millions of people coming in, they’re trying to put them on Social Security. He will wipe out Social Security. He will wipe out Medicare.

Illegal immigrants aren't eligible for Social Security. In fact, they help Social Security because they pay taxes but never get any of the benefits.

3. Abortion:

If you look at this whole question that you’re asking, a complex, but not really complex — 51 years ago, you had Roe v. Wade, and everybody wanted to get it back to the states, everybody, without exception. Democrats, Republicans, liberals, conservatives, everybody wanted it back. Religious leaders.

Flat out lie. It's simply untrue that "everybody" wanted to overturn Roe. v. Wade.

4. Abortion again:

If you look at the former governor of Virginia, he was willing to do this. He said, we’ll put the baby aside and we’ll determine what we do with the baby. Meaning, we’ll kill the baby.

Former Gov. Ralph Northram never said this, no matter how many times Trump claims it.

5. Illegal immigration:

He decided to open up our border, open up our country to people that are from prisons, people that are from mental institutions, insane asylum, terrorists. We have the largest number of terrorists coming into our country right now. All terrorists, all over the world — not just in South America, all over the world. They come from the Middle East, everywhere. All over the world, they’re pouring in.

There is no evidence that terrorists have crossed into the US via the southwestern border.

6. Foreign affairs:

As far as Russia and Ukraine, if we had a real president, a president that knew — that was respected by Putin, he would have never — he would have never invaded Ukraine.... Just like Israel would have never been invaded, in a million years, by Hamas. You know why? Because Iran was broke with me. I wouldn’t let anybody do business with them. They ran out of money. They were broke. They had no money for Hamas. They had no money for anything. No money for terror.

This is ridiculous. Trump did nothing to deter Putin and nothing to deter Iran.

7. January 6:

Nancy Pelosi, if you just watch the news from two days ago, on tape to her daughter, who’s a documentary filmmaker, as they say, what she’s saying, oh, no, it’s my responsibility, I was responsible for this. Because I offered her 10,000 soldiers or National Guard, and she turned them down. And the mayor of — in writing, by the way, the mayor. In writing turned it down, the mayor of D.C. They turned it down.

Flat out lie. Trump didn't offer 10,000 National Guard troops to anyone on January 6.

8. January 6 again:

The unselect committee, which is basically two horrible Republicans that are all gone now, out of office, and Democrats, all Democrats, they destroyed and deleted all of the information they found, because they found out we were right. We were right. And they deleted and destroyed all of the information.

Flat out lie. The January 6 committee didn't destroy anything.

9. Ukraine:

Joe could be a convicted felon with all of the things that he’s done. He’s done horrible things. All of the death caused at the border, telling the Ukrainian people that we’re going to want a billion dollars or you change the prosecutor, otherwise, you’re not getting a billion dollars.

If I ever said that, that’s quid pro quo. That — we’re not going to do anything, we’re not going to give you a billion dollars unless you change your prosecutor having to do with his son.

Flat out lie. The US wanted Ukraine's top prosecutor fired because he was corrupt. It had nothing to do with Hunter Biden, and in any case, Joe Biden was just the messenger for US policy.

10. Inflation:

He caused the inflation. He’s blaming inflation. And he’s right, it’s been very bad. He caused the inflation and it’s killing black families and Hispanic families and just about everybody. It’s killing people. They can’t buy groceries anymore. They can’t. You look at the cost of food where it’s doubled and tripled and quadrupled. They can’t live. They’re not living anymore. He caused this inflation.

Our recent surge in inflation was caused primarily by COVID shortages. Beyond that, it was most likely caused by rescue packages passed under Trump, which were much bigger than Biden's. And food prices haven't doubled or quadrupled; they've gone up about 20%.

11. Criminal justice:

What he has done to the black population is horrible, including the fact that for 10 years he called them superpredators. We can’t, in the 1990s, we can’t forget that. Super predators was his name. And he called it to them for 10, and they’ve taken great offense at it, and now they see it happening.

Flat out lie. Biden never uttered the word superpredator.

12. The environment:

During my four years, I had the best environmental numbers ever. And my top environmental people gave me that statistic just before I walked on the stage, actually.

Trump was a disaster for the environment. Carbon emissions stopped going down under Trump until 2020, when they dropped solely due to COVID.

13. Fentanyl:

Jake, we’re doing very well at addiction until the COVID came along. We had the two-and-a-half, almost three years of like nobody’s ever had before, any country in every way. And then we had to get tough. And it was — the drugs pouring across the border, we’re — it started to increase.

Fentanyl deaths increased from 70,000 to 107,000 over Trump's term. Cocaine overdose deaths also skyrocketed.

Here are ten short excerpts from answers Joe Biden gave during last Thursday's debate. Reading them on the screen allows you to judge his performance solely by its content without getting distracted by his hoarseness or his facial expressions or any other bits of theater criticism. We're not electing someone to star in Hamlet, after all.

Unfortunately, this does not improve things. It might make them worse.

1. Raising taxes on billionaires:

We’d be able to write — wipe out his debt. We’d be able to help make sure that — all those things we need to do, childcare, elder care, making sure that we continue to strengthen our healthcare system, making sure that we’re able to make every single solitary person eligible for what I’ve been able to do with the COVID — excuse me, with dealing with everything we have to do with—

LONG PAUSE AND BLANK STARE

Look, if—

PAUSE

We finally beat Medicare.

2. Abortion:

Look, there’s so many young women who have been — including a young woman who just was murdered and he went to the funeral. The idea that she was murdered by — by — by an immigrant coming in and (inaudible) talk about that.

But here’s the deal, there’s a lot of young women who are being raped by their — by their in-laws, by their — by their spouses, brothers and sisters, by — just — it’s just — it’s just ridiculous. And they can do nothing about it. And they try to arrest them when they cross state lines.

3. Abortion again:

I supported Roe v. Wade, which had three trimesters. First time is between a woman and a doctor. Second time is between a doctor and an extreme situation. A third time is between the doctor — I mean, it’d be between the woman and the state.

4. Illegal immigration:

Since I’ve changed the law, what’s happened? I’ve changed it in a way that now you’re in a situation where there are 40 percent fewer people coming across the border illegally. It’s better than when he left office. And I’m going to continue to move until we get the total ban on the — the total initiative relative to what we’re going to do with more Border Patrol and more asylum officers.

5. Ukraine:

We found ourselves in a situation where, if you take a look at what Trump did in Ukraine, he’s — this guy told Ukraine — told Trump, do whatever you want. Do whatever you want. And that’s exactly what Trump did to Putin, encouraged him, do whatever you want. And he went in.

6. Black progress:

The facts of the matter is more small black businesses that have been started in any time in history. Number two, the wages of black — black unemployment is the lowest level it has been in a long, long time. Number three, we find them — they’re trying to provide housing for black Americans and dealing with segregation that exists among these corporate — these corporate operations that collude to keep people out of their houses.

7. The economy:

We have covered with — the ACA has increased. I made sure that they’re $8,000 per person in the family to get written off in health care, but this guy wants to eliminate that. They tried 50 times. He wants to get rid of the ACA again, and they’re going to try again if they win.

You find ourselves in a position where the idea that we’re not doing it. I put more — we put more police on the street than any administration has. He wants to cut the cops. We’re providing for equity, equity, and making sure people have a shot to make it. There is a lot going on. But, on inflation, he caused it by his tremendous malfeasance in the way he handled the pandemic.

8. Climate change:

I’ve passed the most extensive, it was the most extensive climate change legislation in history, in history. We find ourselves — and by the way, black colleges, I came up with $50 billion for HBCUs, historic black universities and colleges, because they don’t have the kind of contributors that they have to build these laboratories and the like. Any black student is capable in college in doing what any white student can do. They just have the money. But now, they’ll be able to get those jobs in high tech.

9. Social Security:

The idea that they’re going to — I’m not — I’ve been proposing that everybody, they pay — millionaires pay 1 percent — 1 percent. So no one after — I would not raise the cost of Social Security for anybody under $400,000. After that, I begin to make the wealthy begin to pay their fair share, by increasing from 1 percent beyond, to be able to guarantee the program for life.

10. Golf:

BIDEN: You’re going to see he’s six-foot-five and only 225 pounds — or 235 pounds.
TRUMP: (inaudible).
BIDEN: Well, you said six-four, 200.
TRUMP: (inaudible).
BIDEN: Well, anyway, that’s — anyway, just take a look at what he says he is and take a look at what he is. Look, I’d be happy to have a driving contest with him. I got my handicap, which, when I was vice president, down to a 6. And by the way, I told you before I’m happy to play golf if you carry your own bag. Think you can do it?
TRUMP: That’s the biggest lie that he’s a 6 handicap, of all.
BIDEN: I was 8 handicap.
TRUMP: Yeah.
BIDEN: Eight, but I have — you know how many…