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The House voted in a rush to impeach Trump because he was so dangerous to the country that he had to be removed immediately. Then they waited until after he left office to send the Bill of impeachment to the Senate. Now they want the Senate trial to proceed without the Chief Justice who clearly […]

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Klobuchar’s Antitrust Blunder

 

This past week, Senator Amy Klobuchar, now the head of the Senate Judiciary subcommittee on antitrust, proposed the most comprehensive legislative reform of antitrust law since the passage of the Clayton Act in 1914. That statute extended the reach of antitrust law so that it covered not just Sherman Act cases of monopolies and cartels in restraint of trade, but also any merger or consideration that, to quote the language of Section 7 of the Clayton Act, might “substantially lessen competition” or “tend to create a monopoly.”

To Senator Klobuchar, that 107-year-old statutory standard is not sufficient for dealing with antitrust law in the digital economy. She has insisted that breaking up companies like Facebook “has to be on the table.” In a blunt statement, she projects her optimistic vision:  “When we talk about structural remedies and breaking things up, those companies would then be unleashed to do even more”—but she doesn’t say how that welcome outcome would be achieved. Indeed, if a breakup would have that positive effect, then shareholders of those companies should be demanding that management adopt that course of action to maximize the value of their holdings. But underlying her analysis is the tacit assumption that there are no efficiency gains from the integrated operation of a single firm, let alone from any future merger or acquisition.

Unfortunately, she offers no systematic explanation as to why that negative judgment is correct. Nor does she explain exactly why the current system of merger evaluation is deficient. In his classic 1968 article, “Economies as an Antitrust Defense: The Welfare Tradeoffs,” the late Nobel laureate Oliver Williamson explained why it was not possible to have a presumptive condemnation of mergers. On the one side, mergers can increase industry concentration, exerting the usual negative effects on consumer welfare, including higher prices and perhaps lower quality. But on the positive side are the cost savings from the merger brought through efficiency gains in operations. The challenge is to measure and weigh their relative magnitudes.

Gov. Ron DeSantis Goes to War Against Big Tech

 

It’s time that someone started to fight back against big tech, and Governor Ron DeSantis is leading the pack. Here’s what he had to say a few days ago:

‘As these companies have grown and their influence has expanded, Big Tech has come to look more like Big Brother with each passing day,’ DeSantis told reporters at the Capitol. ‘But this is 2021, not 1984, and this is real life, not George Orwell’s fiction. These companies exert monopoly power over a centrally important forum in the public discourse and the access of information that Floridians rely on.’

After a very brief Super Bowl recap, Jim and Greg cheer Claudia Tenney winning the final House race from the 2020 cycle and relish Democrats trotting out some awfully familiar complaints of irregularities. They also shudder at a new government report showing China is stealing the DNA of American citizens for nefarious purposes. And they discuss how Ilhan Omar’s husband is getting very rich by consulting with her campaign, and the craziest part is that it’s all apparently legal.

 

Biden’s Unlawful Re-entry into Climate Accord

 

On January 20, beneath an imposing array of solar panels, President Biden issued an executive order declaring that the United States would rejoin the Paris agreement on climate change. The order stated in full: “I, Joseph R. Biden Jr., president of the United States of America, having seen and considered the Paris Agreement, done at Paris on December 12, 2015, do hereby accept the said agreement and every article and clause thereof on behalf of the United States of America.”

This executive order raises issues of huge constitutional import. Does the president of the United States have the constitutional power to “accept” the Paris agreement by unilateral action? The correct answer is a decided no. The Paris agreement should be understood first and foremost as a treaty. As such, it should be governed by Article II, Section 2, Clause 2 of the Constitution, which requires treaty ratification by two-thirds of the senators present. President Obama knew that he did not have the votes in the Republican-controlled Senate to ratify the treaty in 2016—hence the initial entry into the agreement via executive order.

The simple question here is whether the obligation to secure Senate approval can be avoided by rebranding the treaty as an “agreement,” as was done in Obama’s and Biden’s executive orders.

This week on “The Learning Curve,” Cara and Gerard kick off National School Choice Week with Arizona Supreme Court Justice Clint Bolick, co-author with Kate Hardiman of a new book, Unshackled: Freeing America’s K–12 Education System. Justice Bolick shares his experiences serving on a state supreme court, and how it has shaped his understanding of America’s legal system. They discuss his new book reviewing the country’s ongoing struggles with the often outdated, command-and-control structure of its K-12 education system and how state lawmakers can best craft legislation to expand flexible, parent-driven educational options. They also talk about the disastrous effects of COVID on student learning, and U.S. schools’ competitive disadvantage relative to international peers. Justice Bolick offers analysis of some of the possible legal, bureaucratic, and educational challenges and opportunities in the wake of the U.S. Supreme Court’s landmark Espinoza case, including fewer impediments to school choice at the state level. They also talk about why religion and schooling remain such a third-rail issue in the K-12 system, in contrast to America’s decentralized and choice-driven higher-education model, in which students can access government scholarships and loans regardless of where they attend college or university.

Stories of the Week: With Catholic school enrollment declining across the country, Cara previews some of the key points in Pioneer Institute’s new book (which she co-edited), A Vision of Hope: Catholic Schools in Massachusetts. A number of President Biden’s appointees to the U.S. Department of Education have ties to First Lady Jill Biden, a former educator, or to teachers’ unions. Is a close White House linkage likely to improve results for students, or just continue the status quo.

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With the latest declassifications of documents it’s clear that there was never any evidence that the Trump campaign colluded with the Russians. All four FISA applications were fraudulent. It must been clear within a few weeks to the Mueller team that there was nothing to investigate. But they had a huge conflict of interest. Many […]

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Biden Goes Deep Green

 

It is amazing the difference that four years can make in environmental policy. On January 24, 2017, at the outset of his presidency, Donald Trump issued an executive order that salvaged the Dakota Access Pipeline (DAPL) from the Obama administration’s planned obstructionism. Obama had sought to upset the string of administrative approvals that the project obtained at both the federal and state levels. DAPL runs about 1,100 miles from the Bakken and Three Forks oil fields in North Dakota to Patoka, Illinois, where it is able to carry, far below ground, about 500,000 barrels of crude oil per day. Trump’s action allowed Congress to vote on whether to grant the last federal easement needed for the pipeline to proceed.

DAPL is now in service, even as litigation to shut it down continues. Environmental groups continue to allege attenuated theories of adverse effects under the National Environmental Policy Act (NEPA). Their efforts are consistent with the common practice among environmentalists of paying inordinate attention to highly remote contingencies while completely ignoring the large and immediate safety and efficiency advantages of getting crude oil to both domestic and foreign markets via DAPL. More concretely, the chances that any crude oil shipped by DAPL will escape in sufficient quantities to damage the fishing or water rights of the Standing Rock Sioux have always been infinitesimal, which is why the pipeline operations have caused no such harm for the past three years. The overall soundness of the pipeline grid will become truly dire if DAPL is shut down while Keystone is left incomplete.

For the moment, however, the immediate threat is to the Keystone pipeline. On January 20, President Biden issued an executive order aimed at “Restoring Science to Tackle the Climate Crisis.” One component of his major order was to revoke the permit for the Keystone XL pipeline. The pipeline started some twelve years ago, but since that time it has been beset with legal challenges, including one in May 2020 in which a Montana judge yanked the pipeline’s permit on the grounds that the Army Corps of Engineers had not consulted sufficiently with the US Fish and Wildlife Service on the alleged risks that the pipeline posed to endangered species and their habitat. Such orders overlook the benefits from that pipeline, which include its ability to ship up to 830,000 barrels per day of crude oil from the Alberta sands to American refineries along the Gulf Coast.

Mark Steyn’s Motion for Summary Judgment

 

This motion for summary judgment by Mark Steyn in the case of Michael Mann v. National Review came up tonight in my Twitter feed. (Here’s a link to the PDF.)

I was woefully behind on this issue, but reading this helped bring me up to date, I think. I didn’t know a court filing could be written this way, though. It started out more like a moderate polemic, and then settled down into being very informative. It was also very readable.

Member Post

 

Folks are still hanging in there with masks. I think they genuinely like ’em, regardless of efficacy. I also think that many folks who like ’em also deplore the less-than-1000% level of belief in them, such as might darkly dwell in the hearts of other people who nevertheless wear them.  The opposite of a masquerade […]

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Join Jim and Greg as as they discuss leftist riots in at least three American cities Thursday night. Will the Democrats finally admit this is a problem since these people claim to hate Biden too? They also sigh as President Biden not only rejoins the World Health Organization but does so without one demand for accountability or reform. And they react to MSNBC host Nicolle Wallace and former Obama official Ben Rhodes discussing how to “detox” speech they don’t like and even bar Republicans from stating opinions if they don’t accept the left’s version of the truth.

Begging Your Pardon

 

President TrumpPresident Trump, like almost all* presidents, exercised the constitutional power of the pardon. In his last hours in his first term of office, President Trump pardoned 73 people and commuted the sentences of another 70. Most of the cases involved drug offenses now treated less harshly, while some rang of government misconduct and ax grinding by the feds. Two rappers made headlines: Lil Wayne and Kodak Black. The former mayor of Detroit, Kwame Malik Kilpatrick, got a break from a very long sentence. No, President Trump did not pardon terrorists, like certain prior occupants of the office. Here is the official release (emphasis added), followed by linked official clemency records for all presidents since Nixon.

Statement from the Press Secretary Regarding Executive Grants of Clemency
LAW & JUSTICE | Issued on: January 20, 2021

President Donald J. Trump granted pardons to 73 individuals and commuted the sentences of an additional 70 individuals.

As the Biden administration officially begins, join Jim and Greg as they cheer the U.S. for declaring a Chinese genocide against the Uighurs on President Trump’s final day in office. They also groan as Biden plans an economic policy around issues like race, gender equality and climate change rather than traditional metrics. And they’re surprised to see Democrats predict a COVID relief bill being delayed until March, although given what’s likely to be in it, we’re in no hurry to see much of it become law.

The Trial That Should Not Be

 

Last week, the House of Representatives voted to impeach Donald Trump for “incitement of insurrection,” stemming chiefly from his remarks before a large crowd near the White House on January 6. As I have previously written, serious questions still remain as to whether those charges are valid as a matter of fact and law. But assuming they are, the question is what comes next.

Press coverage is mostly limited to tactical and political issues. On the Democratic side, the chief concerns are the timing and form of the expected trial. Should Speaker Nancy Pelosi delay sending the article of impeachment to the Senate to give House leaders more time to gather evidence to strengthen their case? Or will that delay undercut the perceived public urgency of the trial? If there is an impeachment trial, will that slow down the Senate confirmations of top cabinet officials or the passage of Joe Biden’s legislative agenda? On the Republican side, the question arises of whether individual senators should break ranks with Trump and convict him, even if most Republican voters are as strongly opposed to conviction as Democratic voters are in favor of it.

In an important sense, these questions put the cart before the horse. First, we must ask whether the Senate even has the power to try this impeachment once the president is out of office. As a textual matter, the answer is no. There are two relevant provisions in the Constitution: Article I, Section 3, and Article II, Section 4. Article I, Section 3, gives the sole power of impeachment to the Senate. First, a simple declarative sentence provides that “When the President of the United States is tried, the Chief Justice shall preside.” The key word is “the” as in “the President.” The word “the” is used instead of the word “a.” “The” has a definite reference to the president now sitting in office, which will be Joe Biden on January 20. Once Donald Trump is out of office, he cannot be tried under this provision.

Member Post

 

Still trying to wrap my head around the fact that a bunch of people who think Bill Gates is going to inject them with a chip stormed the US Capitol with their cell phones’ location data enabled. — Daniel Foster (@DanFosterType) January 16, 2021 More usefully, “made the trip with their phones outside of an […]

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Member Post

 

We have all read about the crimes at the Capitol on January 6th and the arrest of John Sullivan, whose exploits with his mysterious camera woman were well chronicled by themselves and others. That sidekick has now been identified as Jade Sacker, photo journalist for CNN and NPR. Some of the coverage I have seen […]

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Impeachment of a Former President is Unconstitutional

 

As pointed out by Senator Tom Cotton, impeachment and conviction of a former President is not allowed by the impeachment provisions of the Constitution which provide in so many words that upon a conviction in the Senate the President shall be removed from office.

That is pretty obvious, which of course means that the Democrats and the DemMedia will either ignore the point or ridicule the argument.

Join Jim and Greg as they discuss what happens next with a deeply fractured Republican Party.  They also fume as Capitol Police officials say they never got the FBI warning of violent threats at the Capitol on January 6. And they have some fun with people mistakenly thinking Chuck Norris was part of last week’s demonstrations in Washington.