Category: Politics

Yesterday afternoon England’s BBC dropped a teaser trailer for a new production they’ve made about Roman Emperor Gaius Julius Caesar, better known to history simply as Julius Caesar. If you watch their snippet you can see that they must have expected their production to be controversial, but one can’t imagine that they expected it to be as controversial as it’s proven to be.

Witness Julius Caesar: The Making of a Dictator

Produced by BBC Studios Specialist Factual Productions, and featuring insights from @holland_tom & @RoryStewartUK, discover how an ambitious power-grab turned to tyranny.

9pm Mon 27 Nov | @BBCTwo @BBCiPlayer | #MadeByBBCStudios pic.twitter.com/fayav1ztn7

— BBC Studios (@bbcstudios) November 27, 2023

Seriously, people really hate this thing.

A dictator that refused the crown of Rome.
First the British (Ridley Scott) butcher the life of Napoleon and now they are going to plunge more knives into the legacy of Julius Caesar.

— Napoleon Bonaparte Appreciator (@NapoleonBonabot) November 28, 2023

Wow I wonder what the subtext here could possibly be.

— Jack Montgomery (@JackBMontgomery) November 28, 2023

The late Roman Republic was ruled by a class of kleptocratic oligarchs that had progressively impoverished the common man, overseen a breakdown in law and order, ignored popular demands for reform, and was obsessed with its own image. Very timely comparison!

— Hippokleides (@Hippokleides) November 27, 2023

They probably didn’t mean it to be timely in that way but now that you mention it that’s a pretty good point…

Some people argued (tongue firmly in cheek we assume) that this production didn’t go far enough.

At least you didn’t make him black.

— The Occidental Jihadist (@Occidentaljihad) November 28, 2023

Make him trans!!!1

— The Hanford Institute 🐶 (@ThiccInstitute) November 28, 2023

Let me guess, he’s black and trans?

— Officer of Engineers (@OfficerofEngin1) November 28, 2023

While others took note of the specific ‘historians’ who had been chosen for this job.

It is genuinely astonishing to witness the depths that the BBC seeks to plumb with the screaming alarm bells that are sounding over the new ‘documentary’, Julius Caesar: The Making of a Dictator.

Such alarm bells crescendo into veritable sirens the instant that Shelley Haley,… https://t.co/NR26xVic3n pic.twitter.com/KgtbaDbAlM

— Western Exile (@westernexile) November 28, 2023

This is a long one but worth reading in its entirety:

It is genuinely astonishing to witness the depths that the BBC seeks to plumb with the screaming alarm bells that are sounding over the new ‘documentary’, Julius Caesar: The Making of a Dictator. Such alarm bells crescendo into veritable sirens the instant that Shelley Haley, the utterly discredited ‘expert’ on ‘Black feminist and critical race approaches’, whose infamous “I don’t care what they tell you in school” comment single-handedly demolished the credibility of Jada Pinkett Smith’s Queen Cleopatra, appears in the trailer. This is quite apart from the ham-fisted propaganda that dominates the rest of the piece, which seeks to perpetuate the notion that the Roman Republic, the very apotheosis of absolute oligarchy, whose only currency was naked corruption, was remotely worth defending. It does not matter how hard establishment media tries. The legitimacy of government by committee is at an end. The dawn of government by visionary is rising…

Yeah… she doesn’t sounds like the most credible source. 

The most ironic bit though is who they chose to close out the video with to make an impassioned plea for the value of Democracy:

For American viewers who don’t know, the woman at the end warning about democracy is an unelected peer who sits House of Lords & can vote on legislation & can’t be voted out.

She was appointed after she produced a whitewash report on anti-semitism for Jeremy Corbyn https://t.co/oPdBE4WqDt

— 🏛Steven🏛 (@nonregemesse) November 28, 2023

Talk about an imperfect messenger!

This doesn’t even address the massive number of responses that the BBC is choosing to hide, either. It’s understandable to a degree when the person running an account wants to hide spam posts or outright abuse… but these?

Can somebody at the BBC a explain why they chose Rory Stewart and Chakrabarti to give their opinions in this “documentary”.

We pay for this shit, at least get proper historians who know what they are talking about.

— Mr Sun (@MercianMenace) November 28, 2023

Like the fact as to how Westerners are now butchering their own historical figures instead of analysing them without bias, due to some misplaced white guilt. Lol.

I am enjoying this shit show.🤣

— ViduraUvacha (@ViduraUvacha) November 28, 2023

The BBC fashion of putting in non-historian talking heads is bizarre.,.what has Shami Chakrabarti, that arch-hypocrite who sld her soul for a peerage, got to offer in terms of objective academic discourse? It’s just like Ash Sarkar and the Nazis all over again…

— The Kilted Sailor (@Kilted_Sailor) November 28, 2023

We have to assume they know they’ve got a PR problem on their hands here and they’re trying to sweep it under the rug as best as possible.

There’s one other important fact here as well… they’ve been ratioed into the Sun by novelty account Daily Roman Updates, who has a colossal 16,000 likes next to their 540.

If this picture of Julius Caesar ripping a heater gets more likes than your post, your “documentary” sucks. pic.twitter.com/i80czJoehV

— Daily Roman Updates (@UpdatingOnRome) November 28, 2023

That’s gotta sting, right?

 We look forward to never watching this, but the odds are that it will launch a thousand videos on YouTube deconstructing how terrible it is and we do look forward to watching those, yes indeed.

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On Monday, the U.S. Supreme Court heard two cases, Brown v. United States and Jackson v. United States, involving men who were each sentenced to 15 years in federal prison for possessing a firearm. Although the oral arguments focused on an arcane issue of statutory interpretation, the cases nicely illustrate how gun laws and drug laws interact to magnify the injustice of each.

In 2016, the U.S. Court of Appeals for the 3rd Circuit noted last year, police in York County, Pennsylvania, “conducted a series of controlled cocaine buys” from Justin Brown. They later obtained a search warrant for Brown’s apartment, where they found cocaine, scales, money, and “a loaded .38 caliber Ruger LCR revolver tucked under the couch cushion where Brown had been sitting.” Brown’s prior drug offenses made his gun possession a violation of 18 USC 922(g)(1), which at the time was punishable by up to 10 years in prison. But when he was sentenced in 2021, Brown received an enhancement under 18 USC 924(e), a.k.a. the Armed Career Criminal Act (ACCA), which transformed a 10-year maximum into a 15-year minimum.

That mandatory minimum applies when a defendant has at least three prior convictions for a “violent felony” or a “serious drug offense.” Brown had five prior Pennsylvania convictions, all of which fell into the latter category: a 2008 cocaine conviction and four marijuana convictions from 2009 through 2014.

Something similar happened to Eugene Jackson, a Florida man who was caught with a gun in 2017. He pleaded guilty to violating Section 922(g)(1) and received the same ACCA enhancement. Jackson’s qualifying priors in Florida were a mixture of violent and nonviolent offenses: armed robbery (2003), aggravated assault with a deadly weapon (2012), and two cocaine offenses (1998 and 2004).

While Jackson’s criminal record suggests he posed a threat to public safety, none of Brown’s priors was violent. And in both cases, the crime that triggered the mandatory minimum did not involve violence. Merely possessing the guns, regardless of how they were used, was enough to earn Brown and Jackson 15 years in prison.

Or was it? Here is where the ACCA’s complicated details come into play. As relevant here, the statute defines a “serious drug offense” to include a state offense that carries a maximum sentence of 10 years or more and involves the manufacture or distribution of a federally listed “controlled substance.” The meaning of “serious drug offense” therefore changes when Congress or the Drug Enforcement Administration (DEA) removes substances from the schedules of the Controlled Substances Act.

In 2015, the DEA descheduled ioflupane I, a medically promising cocaine derivative previously listed in Schedule II. At that point, Florida’s definition of cocaine still included ioflupane I, which remained true until 2017. At the time of Jackson’s cocaine convictions, in other words, Florida defined the substance to include a derivative that was no longer a federally controlled substance when Jackson was caught with a gun or when he was sentenced under the ACCA.

The U.S. Court of Appeals for the 11th Circuit initially held that the relevant version of the federal drug schedules was the one that existed when Jackson committed his federal firearm offense. But after a round of supplemental briefs, the court reversed itself, saying the version that existed when Jackson committed his state drug offenses was the one that mattered.

The same sort of wrinkle complicated Brown’s ACCA sentence. In 2018, Congress amended the federal definition of marijuana, a Schedule I substance, to exclude hemp. At the time of Brown’s marijuana offenses, Pennsylvania’s definition of the substance included hemp, meaning it did not correspond with the federal definition when he was sentenced under the ACCA in 2021. But since the two definitions did correspond in 2016, when Brown committed his federal firearm offense, the 3rd Circuit upheld the enhanced sentence.

During oral arguments in the two combined cases on Monday, the justices seemed to favor the 3rd Circuit’s understanding of the statute. That interpretation would relieve Jackson but not Brown of the 15-year mandatory minimum.

Andrew Adler, a federal public defender representing Jackson, argued that the timing of the firearm offense is what matters because that offense triggers the ACCA sentence. “If Congress amended ACCA’s criteria to delete burglary and someone then committed a 922(g) offense,” he said, “all agree that a prior burglary conviction would not be an ACCA predicate, even if it was one at the time it occurred. The only question here, then, is whether ACCA’s controlled substance criterion somehow warrants different treatment. And it does not. That criterion expressly incorporates the substances on the federal schedules. Under basic rules of statutory construction, that means the substances are effectively written into ACCA itself. So where a substance is removed from the schedules before the 922(g) offense, it is also removed from ACCA’s coverage, no less than burglary in the hypothetical.”

Several justices seemed to find that argument compelling. When Assistant to the Solicitor General Austin Raynor argued that scheduling changes after the commission of drug crimes do not affect their relevance under the ACCA, Justice Clarence Thomas wondered whether his analysis would be the same “if the statute itself was amended.” Raynor said no, prompting Justice Sonia Sotomayor to say, “I think this is the most serious weakness in your argument because it doesn’t make much sense to me.”

Justice Neil Gorsuch noted that “normally when we have a cross-reference, we look at the contemporaneous version of the cross-reference.” He added that “the statutory text here says ‘as defined in,’ which suggests we look at the present law, just as we normally would.”

Justice Elena Kagan likewise called the distinction drawn by Raynor “perplexing” and “a little bit mysterious.” She wondered “why you would have a different rule than you would if Congress had just listed the substances” in the ACCA text and subsequently changed it.

Jeffrey Green, the lawyer representing Brown, advocated the third position: that judges should consult the schedules as they exist at the time of sentencing. Justice Ketanji Brown Jackson, a former member of the U.S. Sentencing Commission, thought that made sense. “Isn’t that the sort of way it’s ordinarily done in the sentencing world?” she said. “Under the sort of normal federal sentencing process, a federal judge applies the sentencing law at the time of sentencing.”

But Justice Amy Coney Barrett was skeptical. “Why would it make sense for Congress to say that two defendants who were convicted at the exact same time should be sentenced differently simply by virtue of when their sentencing happened?” Barrett asked Green. “If we’re not going to choose the government’s approach, it just seems to me like the time-of-federal-offense approach makes more sense of the scheme.” Green conceded that the interpretation he favored would “create some arbitrariness.”

Speaking of arbitrariness, the interaction between drug laws and gun laws exemplified by these cases shows how legislators transform peaceful conduct into crimes and then rely on those decrees to manufacture more crimes. Brown’s prior felonies, which were created by drug prohibition, were the justification for revoking his Second Amendment rights, which in turn was the justification for charging him with violating Section 922(g)(1). Those same drug felonies were also the reason his firearm offense triggered a 15-year sentence.

Under the statutory interpretation that the Supreme Court seems inclined to endorse, Brown would have avoided that sentence if Congress had descheduled marijuana before he was caught with a gun. Given the ongoing collapse of pot prohibition, which most states have partly or entirely repudiated, Congress may eventually take that step, which 70 percent of Americans favor. But it will be too late to save Brown from a decade and a half in prison.

We love it when the Biden administration just out of nowhere solves problems that may not make the nightly news, but that have real impacts on people’s lives, like how last year Health and Human Services fixed a glitch in the design of Obamacare that had kept about a million people from being able to get coverage. No drama, no midnight vigils outside the White House: instead, people at HHS looked at the problem, proposed new administrative rules, and voila, a big headache for some Americans was gone. That’s happened with a lot of small fixes to student loans, too, in addition to the bigger loan forgiveness packages the administration has pursued.

This is what happens when you staff up an administration with smart people who want to solve problems. Today, ProPublica reports on yet another big change that stands to solve a decades-long problem we first learned about back in 2016, closing a huge loophole that allowed states to divert federal antipoverty funds to governors’ pet projects, like promoting abstinence, holding “heathy marriage” classes that did nothing to prevent out-of-wedlock births, funding anti-abortion “clinics” to lie about abortion “risks,” sending middle-class kids to private colleges, and other schemes only tangentially related to helping poor kids. It’s the same loophole that Mississippi officials tried to drive a truck through to divert welfare funds to former sportsball man Brett Favre’s alma mater, for a volleyball palace. That scandal made enough headlines that the administration’s plan to fix the loophole just might get covered beyond policy nerds, even.

At the root of the problem is some vague language around the program that used to be called “welfare” but which was rebranded Temporary Assistance for Needy Families (TANF) in Bill Clinton’s 1996 “Welfare reform” law. TANF normally gave cash assistance to low-income families, to use for basic living expenses. But under the 1986 “reform,” states were allowed to take their TANF block grants and allocate them to other programs that ostensibly assist low-income families with kids. Over the years, while some states still provided cash assistance, others shifted the funds to other budget slots, rationalizing almost any spending as somehow helping poor kids. Mississippi claimed that new volleyball stadium might prevent poverty by encouraging poors to adopt exercise and healthy eating habits, for instance.

ProPublica detailed the widespread abuse of TANF funds in a series of stories in 2021, explaining how Utah’s public assistance rules convinced some families they had to join the LDS church to get help, and how Arizona used TANF funds for child welfare investigations of needy parents — effectively “helping” poor families by breaking them up. Some states didn’t spend the funds at all, simply hoarding parts of their TANF grants.

So yeah, said the Biden folks at the Administration for Children and Families, let’s fix that! The agency has proposed new rules — open for public comment until December 1 — aimed at nudging states to actually use TANF funds to give cash to needy parents, not fill budget holes or punish poor people.

One change will put an end to the scheme Utah used to substitute LDS church funds for welfare, by prohibiting states

from counting charitable giving by private organizations, such as churches and food banks, as “state” spending on welfare, a practice that has allowed legislatures to budget less for programs for low-income families while still claiming to meet federal minimums.

Another new rule will put the kibosh on using TANF to fund child protective services or foster care programs, which are not what TANF is supposed to be for, damn it.

And then there’s the simple matter of making sure that funds for needy families go to needy families, not to pet projects that have little to do with poverty:

The reforms would also redefine the term “needy” to refer only to families with incomes at or below 200% of the federal poverty line. Currently, some states spend TANF money on programs like college scholarships — or volleyball stadiums — that benefit more affluent people.

Guess the real “Welfare Queens” were the state bureaucrats who robbed poor families to help people who didn’t need it, huh?

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But wait, there’s more! Instead of allowing states to write up flimsy rationalizations for how a Don’t-Fuck-Before-Marriage Summer Camp might benefit poor families, states would have to

provide concrete evidence, including social science research or real-world examples, showing that they are using their TANF spending in ways that truly help families in need.

And the best way to do that, the government writes in its announcement of the proposed rule, is to do what TANF was originally set up for: giving cash assistance to needy families, because it works, even if you’re sure they’ll just blow it on booze, drugs, and My Little Pony collectibles. That’s just wrong, you see:

[We] remind states that there is a large body of research that shows that cash assistance is a critically important tool for reducing family and child poverty.^[2] Studies have found that when families receive TANF and are more financially secure, they are less likely to be involved in the child welfare system.^[3]

When this new rule goes into effect, states will still have some flexibility if they want to use TANF grants for something other than direct cash assistance. But they’ll need to show that poor families really are benefitting, or they’ll be penalized.

And if states want to build sportsball facilities, they’ll need to have a bake sale or something.

[ProPublica / Federal Register / ProPublica]

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Since Ron DeSantis chose Dr. Joseph Ladapo to be Florida Surgeon General in September 2021, we’ve been treated to an endless parade of stories about what an absolute ass the state’s top medical official is. His chief qualification seems to have been that, like DeSantis, Ladapo constantly downplayed the seriousness of COVID-19 and opposed the vaccine on political grounds. Ladapo was a member of the crazy anti-science group “America’s Frontline Doctors,” which promoted the anti-malaria drug hydroxychloroquine as a “cure” for COVID (it is not), and he stubbornly refused to wear a mask while meeting with a state legislator who told him her immune system was compromised while she was undergoing cancer treatment. He advised young men to avoid the COVID vaccine — and then later the booster. Then we found out that his first recommendation against the vaccine was based on data that he had “personally altered” in an already-dubious study.

Quite a doctor, yes indeed; he even allegedly doctored research.

Yesterday, Politico — which broke the story of Ladapo’s surgery on the vaccine study earlier this year — reported on the turmoil Ladapo has wrought at the University of Florida, where he was rushed into a tenured professorship at the university’s medical school while he was also being confirmed as surgeon general. It seems that granting him tenure in just three weeks, without undergoing the usual reviews that are needed to get tenure, led the university to overlook a few problems in his academic qualifications, if you can imagine that.

On paper, the story notes, Ladapo looked like a real catch, with his medical degree from Harvard and research appointments at New York University and UCLA.

Professors had anticipated Ladapo would bring at least $600,000 in grant funding to his new appointment from his previous job at UCLA. That didn’t happen. They expected he would conduct research on internal medicine, as directed by his job letter. Instead, he edited science research manuscripts, gave a guest lecture for grad students and wrote a memoir about his vaccine skepticism.

The story is full of fun quotes from anonymous UF professors who were surprised, disappointed, annoyed, and otherwise unhappy to see the university went along with giving Ladapo a $260,000 per annum tenured position that doesn’t appear to involve doing much work — on top of his $250,000 salary as surgeon general. Why, it’s almost as if Florida under DeSantis is becoming some kind of republic in which bananas are grown and patronage jobs are distributed to the leader’s pals.

One prof who spoke out of school said that “a lot of people” thought Ladapo “had been vetted by the College of Medicine like anyone who goes through the tenure process,” and that as a result, the University missed “a lot of red flags.” Another said Ladapo “has undoubtedly sullied the academic reputation of the University,” which the prof said detracts from the “incredible science and outstanding clinical work being done by real UF scientists and clinicians.”

Dr. Meera Sitharam, a computer science prof who’s president of the union that represents UF faculty, said she’s still wondering why Ladapo’s messing around with that COVID study data hasn’t resulted in a formal investigation, but has some suspicions:

“For some reason the medical and public health communities aren’t outright investigating him … probably because he isn’t operating as a scientist or a faculty member,” Sitharam said in an email. “He is operating in the murky world where public health is held hostage to political fortunes, which is in part because public trust in health related institutions has been deeply eroded.”

State Sen. Tina Polsky (D-Boca Raton) was among the few people who went on the record with Politico, largely because her job doesn’t depend on smiling nicely for the DeSantis mob. (Yes, she’s the state senator who couldn’t persuade Ladapo to wear a mask, just because she was undergoing chemo. So selfish of her.) She noted that during Ladapo’s confirmation hearings, he’d been pretty cagey about his work at UF, even when she asked follow-up questions:

“You know he never taught a class per se, and it was just his typical word salad answers for everything,” Polsky said. “It’s really frustrating.” […]

“It was very par for the course,” Polsky said. “This guy is a charlatan, he’s not looking out for anyone’s health and he’s going to campaign with DeSantis.”

It sure seems like nice not-work, if you can get it. Politico notes that Ladapo was initially supposed to be teaching classes and doing research in the medical school’s internal medicine division, but that

His most recent quarterly effort report from spring of this year, however, shows he now spends most of his time in an undefined administrative role.

“I don’t know what he is doing but it definitely isn’t research,” said a separate College of Medicine professor not authorized to speak.

He is nonetheless a very busy guy, working on a memoir about why he doesn’t trust vaccines and proposing a “series of seminars on the critical evaluation of scientific evidence,” which we assume means “finding bogus reasons to ignore science.” Nothing has yet come of that proposal. Plus, he’s given two entire guest lectures this year (one in January, another in July), and even showed up on campus to do that, so honestly, what more can anyone ask of him?

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Besides, he’s been on Fox News a whole bunch of times this year, including multiple appearances in September and October where he urged viewers to avoid the latest COVID vaccine booster, even proclaiming in October that he wouldn’t “feel comfortable … recommending [the vaccine] to any living being on this planet.”

So that seems pretty educational, all right.

[Politico] / Fox News]

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From a decision last week by Magistrate Judge Robert Pitman in DL v. JS (W.D. Tex.):

Plaintiff dated ES from September 2021 to January 2022 when they were both in high school. On December 18, 2021, Plaintiff and ES were having intercourse when Plaintiff removed his condom without ES’s knowledge. ES, Defendant, and ES’s mother filed a civil lawsuit in Utah state court against Plaintiff and his parents in May 2022. The case proceeded publicly for over a year, when the parties agreed to classify the case as private, which sealed the pleadings and filings docketed in the case and renamed the parties with pseudonyms. The Utah civil suit has since settled.

In the instant case, Plaintiff brings claims of libel, public disclosure of private facts, and intentional infliction of emotional distress. Plaintiff alleges that Defendant contacted a member of the board of his fraternity, Phi Gamma Delta Fraternity at the University of Austin at Texas, via email and stated that Plaintiff sexually assaulted his daughter in high school. Plaintiff also alleges that Defendant has sent similar statements to various sororities affiliated with the University of Austin at Texas via the postal service. According to Plaintiff, these mailings contained the unredacted complaint from the Utah civil suit. Plaintiff filed this motion to proceed under pseudonyms concurrently with his complaint.

Plaintiff requests leave to proceed anonymously using the pseudonyms “DL” to refer to himself, “JS” to refer to Defendant, and “ES” to refer to Defendant’s daughter, who is not a party to this action, in order to protect his reputation, the reputation of ES, and to avoid further dissemination of details concerning Plaintiff’s alleged sexual misconduct against ES. Defendant responds that no public interest is served by allowing the use of pseudonyms and nothing about this case overcomes the presumption against allowing a party to proceed anonymously….

Plaintiff focuses his argument for the use of pseudonyms on the fact that the instant case involves allegations of sexual assault and therefore disclosure of information that is of the utmost intimacy. He relies on Doe v. Trustees of Socorro Indep. Sch. Dist. (W.D. Tex. 2018), where the court allowed the plaintiff to proceed using a pseudonym because her suit involved “matters of the utmost intimacy: details of sexual misconduct.” The court stated that the plaintiff would “risk substantial consequences if she proceeds without a pseudonym” and that there was public interest “in protecting the identities of victims of sexual assault.” …

[But i]n Trustees of Socorro, the plaintiff not only was the victim of alleged sexual assault, she also was suing a public school district for deliberate indifference concerning sexual assault perpetrated by its employee and feared retaliation and harm to her well-being. Here, Plaintiff is not a victim of sexual assault and does not contest that he removed his condom without ES’s knowledge during sexual intercourse. {The Court is not commenting on the veracity of Defendant’s allegations of sexual assault but rather whether Plaintiff has demonstrated that he is in a particularly vulnerable situation that warrants allowing him to proceed anonymously like the court allowed the plaintiff to do in Trustees of Socorro.} Plaintiff is not suing a public entity that could retaliate against him but another private individual for monetary damages. Further, the Court notes that Plaintiff does not identify any case law where a plaintiff bringing claims of libel or defamation was allowed to proceed using pseudonyms against the purported victim of the sexual assault. See Roe v. Does 1-11 (E.D.N.Y. 2020) (“The Court finds it highly persuasive that Plaintiff fails to and is unable to cite a single case in which a plaintiff, suing for defamation and alleging he was falsely accused of sexual assault, was allowed to proceed anonymously against the victim of the purported assault.”).

Plaintiff also raises the fact that he was a minor at the time of the alleged sexual misconduct…. [But] Plaintiff … has since turned 18, and … was an adult when the alleged libel occurred.

While the facts of the case may pertain to Plaintiff’s acts during sexual intimacy, Plaintiff has not shown the Court that he is likely to receive threats of violence or harassment. Indeed, Plaintiff’s motion to proceed using pseudonyms only makes a conclusory statement that he “fears he and his family would be subjected to discrimination, harassment, and violence.” Plaintiff must state more than a conclusory statement for the Court to give substantial weight to his alleged fear of harassment. “further evidence of a credible threat beyond [a] conclusory allegation” to proceed anonymously). Because Plaintiff has failed to provide the Court with any specific claims of potential retaliation or harassment, the Court does not find at this time that Plaintiff faces anything more than a general “threat of hostile public reaction to [the] lawsuit.”

Aside from stating that he wishes to protect his own reputation, Plaintiff also asserts that he wants to protect ES’s reputation. However, in his complaint, Plaintiff acknowledges that ES has “endeavored to make herself a professional ‘advocate’ for victims of stealthing,” i.e., removing a condom during sexual intercourse without a partner’s knowledge. In his response to the instant motion, Defendant highlights that ES has testified about her experience to the Utah Legislature, co-founded an organization that lobbies for anti-stealthing legislation, and was featured in the Salt Lake Tribune and appeared on a podcast as an advocate for anti-stealthing legislation. In these contexts, ES told the story of her high school boyfriend removing his condom during sex, although she did not disclose DL’s real name. However, the Utah civil suit, which named Plaintiff and ES in full, proceeded publicly for over a year. To the extent that Plaintiff argues that he wants to protect ES’s reputation in addition to his own by proceeding anonymously, the Court is unpersuaded.

Finally, Plaintiff claims that the Court should allow him to proceed anonymously because the Utah civil suit was classified as private. Plaintiff asserts that proceeding under pseudonyms is necessary to “avoid a violation of a Utah Court Order classifying a case filed there by Defendant JS as private.” The Court disagrees.

Proceeding under his real name in this instant case will not violate the Utah state court’s order classifying previous state litigation as private. The state court order prevents public access to the pleadings or filings contained therein. It does not affect the ability of Plaintiff and Defendant to proceed using their real names in this case. The parties can, and should, file any documents from the Utah civil suit under seal in the instant case as they already have been doing.

In conclusion, the Court finds that Plaintiff has not demonstrated any grounds for anonymity other than the risk of embarrassment or reputational damage. If Plaintiff wishes to pursue monetary damages against Defendant, he must be willing to do so publicly. Because Rule 10(a) requires Plaintiff to proceed using his real name, Plaintiff must file an amended complaint using his real name in order to proceed in this action….

Karen C. Burgess, Stacy Rogers Sharp, and Katie Dolan-Galaviz (Burgess Law PC) and Sherrard (Butch) Hayes (Weisbart Springer Hayes LLP) represent JS.

“We had Andrew Lloyd Weber popping down to see how long the strike is going to go on for, and at the same time you can’t afford to buy a cup of coffee at Costa.”

Outsourced workers in three government departments are currently taking a further 19 days of strike action over pay and terms and conditions.

Having been striking on and off since 2019, the ISS employees that compromise outsourced cleaners, security guards and support staff are now walking out after their employer failed to improve a below inflation 2.2% pay offer.

Steven, a recent employee for ISS, told LFF that the pay offer put to the union “barely even touches the sides” for workers grappling with a cost of living crisis.

“You’re talking about people who are just above minimum wage anyway, but you’re also talking colleagues that have given 10 – 20 years to the civil service,” Steven told LFF on the picket line.

The dispute concerns workers based at the Energy Security & Net Zero, Business & Trade and Department for Science, and Innovation & Technology based in Whitehall, down the road from the Houses of Parliament and surrounded by fancy hotels and grand buildings.

“We’ve got two really rich hotels next to us,” commented Steven. “We had Andrew Lloyd Weber popping down to see how long the strike is going to go on for, and at the same time you can’t afford to buy a cup of coffee at Costa.

“You know that all of your colleagues are in the same boat. Everyone has to bring lunch because we can’t even afford to eat at the local places while the civil servants, they are in and out getting coffee and getting lunch.

“Our employer isn’t looking after even the basic needs of life to be able to continue here, but at the end of the day they know that we’re disposable.”

Recently hired by ISS as an Experience Coordinator, and having worked in the management industry for 25 years, Steven expressed shock at the way workers were being treated and said there was “no other choice” but to come out and support the striking workers.

“The way they are hacking away wages and leaving people in desperate situations, there was no other choice than to come out and support the colleagues who are at the front line of that,” he said.

“Nothing is dealt with unless you go through the union and really start making a fuss over things.”

PCS union who is supporting workers in the dispute said that ISS had made £72 million in profits last year, with £1 million handed out in bonuses to senior staff.

After an all-out strike in 2019, ISS employees won the London Living Wage and some improvements to terms and conditions. Whilst this time around workers are seeking further improvements to their pay to reflect the cost of living and inflation rises, as well as union recognition and improvements to their terms and conditions, to bring them more in line with their insourced colleagues who they work alongside.

This round of industrial action has already seen the government department staff take four and a half weeks of strikes and are now set to take another three weeks.

However PCS union organiser Duncan is hopeful there could be a deal in the coming weeks. As exploratory talks with the company have apparently offered a “chink of light” that an outcome is “hopeful”, although there is nothing concrete yet.

But the issue isn’t just with the employer, but with the system of outsourcing itself and thus the root of the problem.

“Ultimately, our aim is to have them brought back in house, because why should they be on different set of terms than the rest of civil servants?” Duncan told LFF. “It’s effectively a two-tier setup.”

Duncan said workers were “very proud to work in these offices”.

“They feel that this is a good thing for them to be doing, but they feel like they’re treated very poorly and have been for years, and the gap has just grown and grown and grown, and we’re trying to start reversing that, we’re trying to catch them up.

“But the way that they set up the new set of contracts is very fractured,” he added.

“You’ll have three different companies running different parts of the facilities management, for example you’ll have one company running security, another one doing hard services like maintenance, and another one doing soft services like reception and cleaning.

“In fact, they’re not allowed to have the same company doing all of them. The companies don’t even like it. This is the Government Property Agency’s way of going about things.

“The basic reason is to try and save money, but I don’t think it’s as efficient as they think it is, and our job is to close that gap as much as we can and basically nullify that argument.”

He noted strong support from civil servants and MPs in the dispute, with civil servants offering both moral and financial support in donating to the strike fund.

“The civil service is completely behind us,” said Duncan. “The people at the top are the ones making the decisions, and that’s why we’re noisy because we want to annoy people.

“Because ultimately we need the government departments to put pressure on the Government Property Agency to end this.

“The Government Property Agency want to just say, no, it’s nothing to do with us, your dispute is with the company. But they’re the ones funding it, so they need to put their hands in their pockets, find money to settle the pay dispute.”

A spokesperson for ISS said: “We are disappointed that this action is going ahead despite our recent pay offer, which is in line with the 2023-24 Living Wage Foundation, London and Real Living wage rates and includes a cost-of-living payment. We value the contribution of every ISS team member and will continue to engage in constructive dialogue with PCS to work towards a resolution. In the meantime, we have robust plans in place to ensure service continuity at the impacted sites.”

Almost 100 workers at the departments for Energy Security & Net Zero, Business & Trade and Department for Science, and Innovation & Technology are walking out from Monday, 27 November until December 15.

Hannah Davenport is news reporter at Left Foot Forward, focusing on trade unions and environmental issues

Peter Franklin is an Associate Editor of UnHerd.

Do you ever get the feeling that our leaders don’t really care about us? Yes? Well, I don’t blame you. But if you think things are bad now, then just consider politics in the eighteenth century.

Back then, politicians didn’t have to care about us because few men and precisely no women had the vote. Parliament was there to represent the elites not the people — and the civil service was a system of sinecures based on the exploitation of artificial monopolies. Furthermore, in the absence of true democracy, the political parties, in as much they existed at all, were concerned with causes and loyalties far removed from popular concerns.

No matter how arrogant and out-of-touch they might seem, the politicians of our time and place could not get away with the unashamed haughtiness of the Georgian era.

But big business is another matter. In this milieu, the movers-and-shakers still strut their stuff like periwigged aristocrats. And nowhere is this hauteur more unchallenged than in the tech sector.

Indeed, the more advanced the technology, the lesser the ability of the public to make a meaningful contribution to key decisions. A case in point is the regulation of artificial intelligence (AI) and especially artificial general intelligence (AGI) — which might prove to be the most important invention of the 21st century.

A useful definition of AGI is a computational system that can equal or exceed human capabilities in most economically-useful tasks. Just to be clear, nothing like this exists yet, but many experts in bog-standard AI think that we’re on the brink of a breakthrough. And that has lead to an ideological split at the highest levels of the (mostly US-based) tech industry.

Until recently, this was a rarefied debate — about as easy to follow to non-experts as the finer points of the Tory-Whig rivalry were to the average English cowherd. But, earlier this month, something happened to bring the conflict to wider attention. The drama centred on OpenAI — which has been described as the world’s most important company.

Controlled by a not-for-profit organisation, but generously funded by Microsoft and other investors, OpenAI has already made waves. Earlier this year, it amazed the world with GPT-4 — an AI system that can generate complex and meaningful text in response to response to natural language questions and instructions. Though professional writers can still churn out better copy, GPT-4 output is genuinely impressive.

The excitement around GPT-4 has propelled Sam Altman, the CEO of Open AI, to front rank of Silicon Valley superstars. At the age of 38, he is the Bill Gates or Steve Jobs of his generation. It therefore came as a huge shock when on the 17th of this month he was sacked by the OpenAI board.

Of course, these things happen — for instance when Steve Jobs parted ways with Apple in 1985. However, Altman’s departure was as if Jobs had been sacked in 2007: i.e, after he’d returned to Apple and had successfully developed the first generation iPhone.

OpenAI’s move wasn’t just surprising it was seemingly inexplicable. Indeed, what happened next was an investor and employee rebellion in which Altman was restored to his position and the board reconstituted.

So what could explain this extraordinary tale of coup and counter-coup? Surely the top brass in the world’s most important company can’t have been so trivially-minded as to indulge in mere office politics?

Most likely, the answer is the precise opposite. As others have noted, those who wanted Altman out were connected to the Effective Altruism or “EA” movement . EA is heavily influenced by utilitarian philosophy — which seeks the greatest good (or happiness) for the greatest number of people (or sentient beings). People associated with this movement include the philosopher Peter Singer, the Facebook co-founder Dustin Moskovitz and, less happily, the disgraced crypto-king, Sam Bankman-Fried.

Some EA adherents, especially those in Silicon Valley, are worried that if Artificial General Intelligence is achieved, humanity could be enslaved or destroyed by its new creation. Even if the risk is very low, from a utilitarian point of view the negative consequences are so great as to justify extreme controls on the development of the technology and, if necessary, total cessation.

However, the Effective Altruists are countered by a rival faction who call themselves “effective accelerationists” (incidentally, they don’t seem keen on capital letters). If you see anyone on social media who includes the abbreviation “e/acc”after their names — for instance, the tech legend Marc Andreessen — this is it what it means.

The accelerationists also believe that AGI is coming — but they want it as soon as possible, given the potential of the technology to improve the human condition. Furthermore, with all the non-AI related risks to humanity’s continued survival — from nuclear war to climate change to pandemic disease — the e/acc position is that we can we can improve our odds by getting some super-intelligence on our side.

So rival philosophies, playing for high stakes, with some powerful names on both sides. This would certainly be a high-minded motive for the tussle over Sam Altman (who leans towards the accelerationist side of the debate). After all, what does a spot of corporate turbulence matter compared to the future of the human race?

The only trouble is that this debate is so high-minded — and high-powered — as to be above our heads. And by that I don’t just mean the general public, but most of the media and just about all of our politicians. What could be the most important issue of our time, is being contested in the absence of anything resembling democracy.

In this respect we really have returned to the politics of the eighteenth century in which loosely defined rival parties battle it out with about as many voters involved as the average rotten borough. So is there anything that British politicians can do to bring the decision-making process back within the democratic realm?

Rishi Sunak was certainly right to show international leadership through his AI Safety Summit, but much more needs to be done. For instance, as Garvan Walsh argues on this site, the UK has a golden opportunity to take the lead on AI regulation — because both the EU and the US are making a right old hash of it. We also need an ambitious industrial policy capable of making the most of our own AI sector, which though much smaller than its American and Chinese counterparts, is still significant.

Perhaps most importantly, the UK government should proceed on the basis of ideological neutrality. At this stage, its impossible to objectively say which of the rival AI factions is right. Indeed, both sides could be wrong because both the Effective Altruists and accelerationists believe that we’re already on the path to Artificial General Intelligence.

Yet, as things stand, there is zero proof that the progress being made by OpenAI and its rivals gets us any closer to AGI which could depend on an entirely different set of principles.

Clearly, the accelerationists want AGI to happen, and the Effective Altruists want to be in charge if it does. But we should be prepared for the possibility both factions are chasing fairies.

A surge in immigration, concerns over asylum seekers, surging rents and a decline in housing construction, high inflation, worker shortages, pressure from business to further open borders, and the opposition promising to cut immigration significantly — all make for tough political times for the government.

Except that’s not Australia — it’s the United Kingdom, where the walking dead Tory government is bearing the brunt of the immensely complex policy dilemma of immigration while inflation is high and the workforce is shrinking. The political pain for the Tories is particularly acute because one of the supposed attractions of Brexit was the restoration of British control over its borders, enabling it to cut off the flow of EU citizens into the UK. But the decline in EU immigration has been more than offset by a massive increase in non-EU immigration since the pandemic.

Ukrainian refugees and Hong Kong people fleeing the Chinese regime crackdown make up a third of the recent surge in UK immigration. But the rest comprises familiar factors to Australians: foreign students and temporary workers.

Over in the Netherlands, veteran Islamophobe Geert Wilders has achieved a remarkable political comeback, with a shift away from direct attacks on Muslims to targeting immigration and housing. In Italy Prime Minister Giorgia Meloni, who has failed to stem a flow of illegal immigrants across the Mediterranean, signed an agreement with Albania — similar to the Tories’ deal with Rwanda recently struck down by the courts — allowing for asylum seekers to be dispatched to a third country.

That comes as the EU considers a significant hardening of its border policy to show voters it is serious about retaining control of migration. In Dublin, an attack on a preschool by an immigrant last week, which saw several children and two adults stabbed (and which a Brazilian immigrant helped to stop), was used by far-right groups to provoke a night of rioting in the city.

There’s a well-established link between perceptions of economic insecurity and hostility to immigration — rather than economic conditions per se (see for example here, here and here). Traditionally, unemployment indicators have been a useful proxy for economic insecurity, but in a world with a shrinking workforce, that may no longer be so useful. At the moment, Western economies are dominated by low unemployment, high inflation (particularly around energy prices), and high (by recent levels) interest rates, creating perceptions of greater economic insecurity even for those with relatively safe jobs.

The right often promises to crack down on borders, but its record is poor: the Tories post-Brexit; Meloni’s inability to halt illegal migrants crossing the Mediterranean, Peter Dutton’s loss of control of borders to criminals and exploitive employers while presiding over a dramatic increase in temporary migration. But what right-wing parties are good at is convincing voters they are tough on border security, understanding that concerns about high immigration are separate from perceptions of control of immigration.

John Howard knew this, and was able to preside over a steep, big business-friendly rise in immigration as prime minister while proudly boasting of his strong border security credentials — indeed, one of the factors Labor was able to exploit in the 2007 election was not merely rising inflation that led the Reserve Bank to lift interest rates, but concerns about insufficient housing supply amid high migration.

And while Dutton’s own border security record is poor, he’ll be aware that perceptions of Labor weakness on border security born during the Howard era linger and will be more prominent in voters’ minds than the minutiae of his failings as minister. He’s also spoken of his interest in shifting away from the Liberals’ traditional big business allies, possibly giving him more freedom to pursue a smaller immigration target, to the undoubted chagrin of employers who have long relied on temporary migration to force wages down.

And in Australia, the same combination of inflation, high rents and high interest rates are creating extra economic insecurity (the result of policies championed by the Coalition, but that nuance will be missed), all exacerbated by a building slowdown, one-off factors driving temporary migration through the roof, and right-wingers eager to exploit the issue. The High Court’s decision to end indefinite immigration detention will stand in for anxiety over asylum seekers, thereby replicating the conditions producing an immigration backlash elsewhere.

Normally immigration does not — despite the intense media interest — shift votes, but it can when it’s linked not merely to border security but to economic issues. The Albanese government has begun the work of repairing the damage to border security caused during the Coalition years and has made some tweaks to temporary migration, but it has failed to get control of the issue.

In that regard, it is missing Kristina Keneally, who, whatever her other faults, effectively made high temporary immigration and border security an issue while in opposition, including upsetting immigration fans within the ALP by calling for lower temporary migration.

If Labor can’t get control of the issue and nullify the traditional strength of the right on the issue, it leaves Dutton with a potent weapon to use against it. The times will suit him. There’s no guarantee that a government with such a slim majority will automatically be given another term by an electorate worried about their economic position.

Does Labor need to be tougher on immigration? Readers, we want to hear from you — especially while our comments are closed due to our website upgrade. Send us your thoughts on this article to [email protected]. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.

More than seven weeks out from the Iranian-sponsored Hamas terrorist attacks on Israel, new TIPP polling reveals how the American people are responding to the attacks, as well as to the ensuing war in Gaza and spreading protests here at home.

While—as with most polling—gender, ethnicity, and political affiliation appear to drive some responses, perhaps the single most striking takeaway from the full poll is the consistent discrepancy in the answers broken down by age group, with younger respondents strongly more likely to take a pro-Palestinian position, while older respondents are considerably more likely to be pro-Israel.

TIPP asked six questions in this poll. Two concerned views on Israel, two on opinions about the Palestinians, and two on the Islamic Republic of Iran.

In response to the question, “Should the United States support or oppose an Israeli ground invasion of Gaza in retaliation to the Oct. 7^th attacks?” support outweighs opposition across all respondents at a roughly 2-to-1 margin, with the sole exception of the 18- to 24-year-old age group.

In that group, 25% support while 32% oppose the Israeli action. An even larger group, however, is unsure (43%), which is the largest group of “unsures” responding to this question, except for women (44%), reflecting considerable ambiguity on this issue and possibly reflecting female concerns that American troops might be drawn into the fighting.

The second question on Israel concerned views on the support America is providing to the wars in both Ukraine and Israel.

In response to the question “Should the United States prioritize aid to Israel or Ukraine,” the largest numbers of respondents favored aid to Israel (26%) or both countries equally (35%) for a total of 61%. Only 9% favor prioritizing Ukraine, while 12% are unsure.

Across the board, Israel outpolled Ukraine, even in the 18- to 24-year-old demographic. Among that group, however, the numbers were much closer than in the rest of the poll, with 16% preferring Israel and 12% preferring Ukraine.

Still, taken in aggregate, this data suggests that requests for additional aid that disproportionately favors Ukraine, such as President Joe Biden’s recent emergency supplemental that included $60 billion for Ukraine versus $14 billion for Israel, may not enjoy broad support in Congress.

The question “Should the United States provide more assistance to the Palestinians?” provoked some of the most diverse data in the poll, with wide discrepancies across age groups, ethnicities and political affiliations.

Overall, 40% agreed more aid should be provided, with 34% disagreeing and 27% unsure. Agreement was strongest among 18- to 24-year-olds, blacks and Hispanics, and liberals, with 54%, 56%, and 61% agreeing, respectively.

Conversely, disagreement was strongest among respondents who are 65-plus (46%), white (39%), and/or Republican (48%). So, while the largest group of respondents to this question support additional aid, this is far from a bipartisan, majority position, suggesting additional requests for funding may encounter resistance in Congress.

When asked whether respondents approved or disapproved of the pro-Hamas protests breaking out across America, a majority (51%) of respondents disapprove, while 27% approve and 21% were unsure. But broken down for degrees of disapproval or approval, the largest group of respondents (36%) strongly disapproved, while 15% disapproved somewhat, 12% approved somewhat, and 15% approved strongly.

Once again, the 18 to 24 age bracket was the most evenly split with 32% disapproving and 30% approving—but even more respondents (37%) were unsure, suggesting that even with the public support these demonstrations are receiving on college campuses, there may be more ambiguity among students than has been documented.

General responses to the two TIPP queries on Iran provided some of the most unified positions found in this polling.

In response to the question “To what degree do you agree or disagree with this statement: ‘The Islamic Republic of Iran is ultimately responsible for the Oct. 7^th attacks on Israel?’”, a majority of respondents (56%) agree strongly or somewhat.

Just 11% disagree strongly or somewhat, while 33% were undecided, which was the single largest response to the poll. 

Within those who did have an opinion, respondents who agreed strongly (30%, the second-largest response) outweighed those who agreed somewhat (26%), while among those disagreeing, the ones who disagreed somewhat (7%) outweighed those who disagreed strongly (4%, the lowest polling answer to this question).

Even among the 18- to 24-year-olds, 47% of whom were unsure, the numbers among those with an opinion went strongly against the Iranians, with 39% agreeing and only 14% disagreeing. 

These strongly anti-Iranian responses suggest there may be scant support for any further attempts by the Biden administration to revive the Obama-era nuclear deal with Iran or to release any further resources to the regime in Tehran. And it’s worth noting that TIPP polling from last year, while reflecting strong support for the Iranian people, revealed similarly negative views on Tehran.

Finally, some of the clearest consensus in the poll can be found in the answer to “How concerned are you an Iranian-sponsored terrorist element will penetrate the U.S. through the southern border?”

Overall, 67% of respondents are very or somewhat concerned, while only 20% are not concerned—and only 12% are unsure (tied for the lowest number of “unsures” with the question on aid to Israel and Ukraine). 

In fact, the concerned outweighed the unconcerned across both sexes and all ages, ethnicities, incomes, and political affiliations, although there were some variations that are consistent with the breakdowns of other responses.

The 18- to 24-year-old age bracket had both the highest level of unconcern and the highest level of “don’t know” at 37% and 24%, respectively, while only 42% expressed concern, perhaps reflecting the same motivations revealed by the this age group in response to the other questions in this poll, but still putting them in the same general position as the vast majority of respondents to this poll.

Clearly, the possibility of a domestic terrorist threat supported by Iran and facilitated by the Biden administration’s inability or unwillingness to control the southern border has broadly seized the American people and may become a significant campaign issue in 2024.

While American views on the Oct. 7 attacks will no doubt shift over time, this TIPP polling provides a useful snapshot one year out from the U.S. presidential election.

Broadly, the results reveal support for Israel and strong concerns about Iran, while responses on the Palestinians were more mixed.

But the single most noteworthy takeaway is the breakdown of responses by age. The 18- to 24-year-olds were one of the smallest groups of respondents to this poll at only 159 out of 1,400 overall, but their striking discrepancy from the rest of the group suggests that their experience with these issues on college campuses across the country is materially different from that of older citizens.

Have an opinion about this article? To sound off, please email [email protected], and we’ll consider publishing your edited remarks in our regular “We Hear You” feature. Remember to include the URL or headline of the article plus your name and town and/or state.

My article, The Myth of the Federal Private Nondelegation Doctrine, has just come out in the Notre Dame Law Review. I’ll be serial-blogging it here over the next couple of days. This is a timely issue, because of the horseracing case currently pending in the Fifth Circuit (in which I filed an amicus brief on behalf of the Reason Foundation and others). Here’s the abstract and introduction. (Please be sure to refer to the real version if you want all the footnotes!)

*     *     *

Abstract

Judges and scholars have often claimed that delegations of governmental power to private parties are constitutionally prohibited.  However, such a “private nondelegation doctrine” is elusive, if not nonexistent.

To understand why, first we need to realize that there are actually several distinct nondelegation doctrines.  I develop a taxonomy that makes sense of these various doctrines by focusing on the different reasons why a delegation might be problematic.  A nondelegation doctrine might be “giver-based” (can Congress delegate this power?), “recipient-based” (can the recipient exercise this power?), or “application-based” (will the application of this power be unjust?).

Once we distinguish these doctrines, it becomes apparent that none of them rules out private delegations.  On the contrary, some doctrines actually facilitate privatization, because they provide that certain private delegations are exempt from certain constitutional requirements.  As for the other doctrines, they do not embody any categorical antiprivate rule.

Private status may be practically relevant in some cases, because the factors that matter to the various doctrines (e.g., how much a delegate is constrained, or the presence of bias) might tend to play out differently between the public and private sectors.  But this is an empirical question; the same factors can in principle also invalidate public delegations; and attentiveness to these factors shows how to structure private delegations so they are constitutionally permissible.  Constitutional law should continue looking to specific objectionable factors rather than the formal public-versus-private question.

Introduction

It’s almost blackletter law that delegations of governmental power to private parties are unconstitutional.

In 1935, the Supreme Court dismissed the very idea that “Congress could delegate its legislative authority to trade or industrial associations or groups so as to empower them to enact the laws they deem to be wise and beneficent for the rehabilitation and expansion of their trade or industries.”  “Such a delegation of legislative power,” it wrote, “is unknown to our law and is utterly inconsistent with the constitutional prerogatives and duties of Congress.”

The very next year, the Court was equally negative about allowing a majority of the coal industry (producers and unions together) to impose an industry-wide code.  This was, it said, “legislative delegation in its most obnoxious form; . . . in the very nature of things, one person may not be entrusted with the power to regulate the business of another, and especially of a competitor.”

This attitude—including its invocation of “the very nature of things”—isn’t just a relic of the late Lochner days, jettisoned along with everything else in 1937.  These two cases, A.L.A. Schechter Poultry Corp. v. United States and Carter v. Carter Coal Co., are still good law and are cited regularly.

In 2013, the D.C. Circuit invalidated a delegation to Amtrak, which Judge Brown held was private: “Even an intelligible principle,” Judge Brown wrote (citing Schechter Poultry and Carter Coal), “cannot rescue a statute empowering private parties to wield regulatory authority.”  The Supreme Court avoided the issue because it held that Amtrak was in fact governmental, but Justices Alito and Thomas (citing those same cases) opined in separate concurrences that private parties can never wield federal regulatory authority—for the simple reason that they are not part of Articles I, II, or III, and therefore are not vested with federal legislative, executive, or judicial authority.  On remand, Judge Brown readopted her private delegation analysis as to a different aspect of the regulatory scheme.

These ideas have continued to percolate.  In 2021, the Fifth Circuit considered whether, under the Affordable Care Act, Congress could incorporate the standards of the American Academy of Actuaries and the Actuarial Standards Board to determine whether a state’s contracts with managed care organizations were “actuarially sound.”  Judge Haynes avoided that issue, but Judge Ho, dissenting from denial of rehearing en banc, insisted (citing, of course, Schechter Poultry and Carter Coal) that “the Constitution vests legislative power in Congress and does not permit delegation of that power—especially not to private parties.”  Justice Alito, joined by Justices Thomas and Gorsuch, “reluctantly concur[red] in the denial of certiorari” because of various procedural complications, but reiterated the “need to clarify the private non-delegation doctrine in a[] . . . future case.”

And most recently, in 2022, the Fifth Circuit struck down a delegation of regulatory power to the Horseracing Integrity and Safety Authority—a private nonprofit entity deputized by Congress to regulate thoroughbred horse racing.  Because the Authority had sweeping rulemaking power and the FTC had only limited review power, said Judge Duncan (citing, as you’ll expect, Schechter Poultry and Carter Coal), this delegation ran afoul of the “cardinal constitutional principle . . . that federal power can be wielded only by the federal government.”  That specific conclusion (as to the Horseracing Authority) may no longer hold in light of a recent statutory amendment, but you see the idea.

So everyone agrees: the nondelegation doctrine forbids delegations to private entities.  Whether or not the Court revives the nondelegation doctrine after Gundy v. United States, there seems to be a consensus on this subcategory of delegations.

*     *     *

There’s just one problem with this consensus: it’s mostly wrong.  First, there is a sloppiness, in that judges and scholars alike often use the term “nondelegation doctrine” indiscriminately to refer to several disparate doctrines; we would do well to disentangle the doctrines and be clear on each one’s domain.  Second—and more fundamentally—once we disentangle the doctrines, we find that none of them rules out private delegations as such.

In Part I, I put some order into the welter of doctrines that relate to delegation.  My taxonomy, which consists of three basic categories, is novel but also commonsensical: it focuses on why particular delegations might be thought to be unconstitutional.  Here are some easy examples:

1. The classic Nondelegation Doctrine (which I’ll capitalize) stems from Article I’s Vesting Clause: because Article I vests “[a]ll legislative Powers herein granted” in Congress, Congress must exercise legislative power itself and can’t delegate it to anyone else. This is a giver-based doctrine: legislative power can’t be delegated because Congress is disabled from giving it away.
2. The Appointments Clause requires that all “Officers of the United States”—officials who exercise “significant authority pursuant to the laws of the United States”—be nominated by the President and confirmed by the Senate (with an exception for “inferior Officers”). This is a recipient-based doctrine: Congress can’t delegate significant federal authority to people who are improperly appointed because such people are disabled from exercising that authority.
3. The Due Process Clauses protect various miscellaneous substantive and procedural personal rights. One of them is the right not to be deprived of a life, liberty, or property interest by someone with a financial interest in the outcome—for instance, a judge who sits on a case while investing in (or receiving a bribe from) one of the parties.  Another is the right not to be deprived of such an interest unless proper procedures are used.  These are application-based doctrines: there’s nothing wrong with the delegation as such and nothing wrong with the delegate as such, but there’s something unconstitutional about the circumstances under which the power is applied.

We could call all these doctrines “nondelegation doctrines,” but we shouldn’t let the similar nomenclature confuse us into thinking that they’re the same doctrine.

This isn’t just needless formalism, or some academic desire to put things in boxes: it makes a difference.  Due process applies against all levels of government, including the states; the Article I Nondelegation Doctrine or doctrines rooted in Articles II or III only apply to the federal government.  A victorious due process challenge can lead to damages under § 1983 or Bivens; Article I Nondelegation Doctrine or Appointments Clause challenges can’t.

Or consider the incorporation of outside rules (whether private standards or state law) into federal law.  This can raise Article I Nondelegation Doctrine issues if the incorporation is dynamic, i.e., if the rules are binding no matter how they might change in the future.  But it doesn’t follow that those outside rule makers (who may have adopted the rules for their own purposes, and who may even be state officials) are necessarily exercising significant federal authority for Appointments Clause purposes.  And whether there’s a violation of due process depends on whether the rule maker has anything to gain by setting one standard rather than another; sometimes this might be true, sometimes not.

Because this taxonomy depends on why a delegation might be unconstitutional, it also helps us answer the question: What would it take to make that delegation constitutional?  Change the scope of the delegation?  Change the entity that receives the delegation?  Change the procedures, compensation system, or other aspects of how the delegated power is used?

Disentangling these various doctrines is useful in its own right.  But in Part II, I go further and show that these various doctrines don’t embody any per se rule against delegation to private parties.

In the first place, there are two major ways in which constitutional law is pro–private delegation.  A couple of doctrines—the state action doctrine, and the exemption from Appointments Clause requirements of anyone whose duties aren’t “continuing and permanent”—actually facilitate private delegation, because they remove some private delegates from the scope of some constitutional provisions.

But putting those aside, there is no constitutional bar against delegating to private parties.  To return to my three-part categorization and the examples listed above:

1. As to giver-based doctrines: any congressional delegation to a private actor can be brought into conformity with the classic Article I Nondelegation Doctrine merely by providing an “intelligible principle” for the delegate to follow—same as for public actors.  The Supreme Court has never used this doctrine to strike down a private delegation.  On the contrary, it has upheld private delegations at least four times, and its reasoning implies there’s no stricter doctrine for private entities.  Schechter Poultry has been thoroughly misread to suggest a hostility to private delegations that isn’t present in the caselaw (and, despite its rhetoric, isn’t even present in that case!).
2. As to recipient-based doctrines: any delegation of significant federal authority on a “continuing and permanent” basis to a private party can be brought into conformity with the Appointments Clause merely by properly appointing the delegate—same as for traditional federal employees. If Justices Alito and Thomas are right that all federal power must be wielded by someone within Articles I, II, or III, such an appointment would generally bring a private delegate within Article II.
3. As to application-based doctrines: any use of coercive power by a financially self-interested private actor can, in principle, be brought into conformity with the Due Process Clause by changing that actor’s compensation structure—same as for public actors. Carter Coal was right that (private) coal companies regulating their competitors is unconstitutional—but so is having (public) judges be compensated from fines assessed on the defendants they convict.

Some of these doctrines might in practice turn out differently because of a delegate’s private status.  For instance, the sorts of administrative procedures that might save a delegation under the Article I Nondelegation Doctrine might be less likely to be present in private organizations; the Appointments Clause prevents corporations or associations (like the Horseracing Integrity and Safety Authority) from being officers of the United States; and perhaps financial bias is more likely to be present in the private sector.  But none of this requires any special private doctrine, and none of this implies any per se prohibition against private delegations.

Understanding the various nondelegation doctrines is thus important for questions of public-private governance.  American law often relies on the participation of private parties, whether industry associations, contractors, or citizen plaintiffs and private attorneys general.  Some arrangements are controversial among some constituen­cies, but everyone loves some private delegates.  Some like private prisons.  Others like private attorneys general and qui tam relators (though maybe some have soured on the idea in light of Texas Senate Bill 8, Texas’s abortion law).  Many are neutral to positive on whether American Medical Association standards should be used to evaluate impairment under workers’ compensation statutes or whether electrical codes promulgated by an industry association should be incorporated into building codes.  And everybody loves delegating the (admittedly not very significant) power to officiate at weddings to ministers.

A wholesale “no private delegation rule” risks invalidating too many of these public-private partnerships too indiscriminately.  By contrast, specific, targeted doctrines can ask specific, targeted functional questions: How narrowly or broadly did Congress delegate?  What kind of power is this delegate exercising, and is there sufficient political control?  Is there a risk of deprivation based on financial self-interest?

Asking these specific questions, each with its own doctrinal framework, helps us understand which delegations are problematic, and why—and how to fix them.

To take one concrete example: consider the Horseracing Authority case I discussed above.  The Fifth Circuit invalidated the delegation of regulatory power to the Authority based on a view that the Article I Nondelegation Doctrine rules out all delegations to private parties per se.

I think this is wrong as a matter of the Article I Nondelegation Doctrine: that doctrine is a giver-based doctrine that asks how much power Congress has given up; there was certainly enough of an “intelligible principle” in the statute, so that the Authority would have been clearly upheld if it were a government agency, and the same result should apply to private agencies.  But the Fifth Circuit reached the right result for the wrong reason: the Authority is actually unconstitutional because of the Appointments Clause.  Because it wields significant federal power, its members need to be appointed by the appropriate constitutional appointment process, which in this case means presidential nomination and Senate confirmation.

Why do I care whether the Fifth Circuit had the right reasoning, if the result was right?  Because it affects how Congress can properly save the Authority: just provide for its members to be properly appointed.  But you wouldn’t necessarily find an emphasis on appointments anywhere in the Article I Nondelegation Doctrine, so you might instead conclude that the only proper way to save the Authority would be to narrow the delegation.

So getting the specific doctrines right is important.  And because these doctrines generally don’t distinguish between public and private—but, rightly, turn on these functional considerations—their proper application allows us to avoid many tricky questions about the fuzzy public-private line.  These questions are especially tricky in an age where government often operates through mixed entities that are hard to characterize, and where different doctrines have different definitions of what it means to be public.  We’ll find that certain sorts of entities are problematic—for instance, perhaps certain federal delegations to corporations are invalid after all—but for reasons that don’t have much to do with their private status.