Editorial Roundup: United States
Mar 6, 2024, 8:29 AM
Excerpts from recent editorials in the United States and abroad:
March 4
The Washington Post on SCOTUS keeping Trump on ballot
No, there is no one weird trick to keep former President Donald Trump off the ballot and out of the White House. That is the unanimous opinion of the Supreme Court, which ruled Monday that the 14th Amendment does not authorize states to disqualify presidential candidates from seeking the office based on alleged oath-breaking and insurrection. This settles a legal controversy whose answer ought always to have been clear, leaving primary responsibility for preventing Trump 2.0 in the hands of voters.
Nearly as important as the substance of the Supreme Court’s decision this week was its speed. The justices expedited review of the Colorado Supreme Court’s Dec. 19 ruling that Mr. Trump was ineligible thanks to the Constitution’s “insurrection clause.” Thus their opinion arrived one day before Super Tuesday’s nominating contests. That allows voters to choose from among all the candidates without worry that their preferred option will be removed by the time of the general election. The country would benefit from similar promptness in another matter under the high court’s consideration: Mr. Trump’s weak claim that he is immune from criminal prosecution.
Of course, the substance of the 14th Amendment case was what matters most. The notion that an arcane Civil War-era provision could be used to exclude Mr. Trump from presidential politics was always a bit too good to be true. The arguments in favor contained multiple points of failure: Did the insurrection clause even apply to the presidency, as opposed to the “offices” it explicitly named? Had the rule against rebels returning to power in Washington, approved soon after the Civil War, already been expunged with the Amnesty Act of 1872? Was the former president even an insurrectionist, and who should decide? As it happened, the Supreme Court didn’t need to bother with these intricacies. The justices turned instead, sensibly, to federalism.
The framers designed the presidency as a uniquely national office, so it made little sense to suppose that the authors of the 14th Amendment could have intended to make eligibility subject to a de facto state veto. The justices accordingly noted that federal officers “owe their existence and functions to the united voice of the whole, not a portion, of the people.” They warned against the “patchwork” that would result from allowing various states with various rules to make various determinations about who may or may not run for federal office.
More compelling still, the justices put these precepts in historical context. The 14th Amendment, drafted in the immediate aftermath of a rebellion carried out under the bogus “states’ rights” banner, was at its core a rebalancing of power between the states and the federal government — to limit the former and strengthen the latter. “It would be incongruous,” they pointed out, “to read this particular Amendment as granting the States the power — silently no less — to disqualify a candidate for federal office.”
To be sure, the court’s unanimity was not perfect. In a disgruntled joint concurring opinion, liberal justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson took their conservative colleagues to task for declining to limit their rationale to federalism. Instead, the court’s majority opinion went on to say that nobody can enforce Section 3 against anybody without an act of Congress detailing whom the provision disqualifies. The three liberals called this judicial overreach, designed to “insulate this Court and petitioner” from future political firestorms.
They have a point: The 14th Amendment is far from clear on the matter, and Section 3 does become harder to employ if only Congress can do so. The court leaves no room for Congress to refuse to certify the election of an alleged insurrectionist, for instance, and no room for courts to consider lawsuits against a president or their appointees on the grounds that they’ve been improperly installed. Justice Amy Coney Barrett, a Trump appointee, agreed with the liberals. What she objected to, however, in a short concurrence that read more like a blog post than a legal opinion, was the “stridency” with which the three expressed their quibble. “All nine Justices agree on the outcome of this case. That is the message Americans should take home.”
Justice Barrett might not be the right messenger — spin is not part of the court’s job description — but it was the right message. This often bitterly divided Supreme Court managed to reach the same bottom line: Whatever else it might do, the 14th Amendment does not authorize states to cull the presidential ballot. It struck a blow both for federalism and for democracy — albeit ironically, given Mr. Trump’s own antidemocratic tendencies. The way to prevent his comeback remains clear: to vote.
ONLINE: https://www.washingtonpost.com/opinions/2024/03/04/scotus-trump-disqualify-ballot-14th-amendment/
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Feb. 29
Wall Street Journal on SCOTUS, Jack Smith and Trump’s immunity
You can’t say the current Supreme Court lacks courage. The safe political play for the Justices would have been to dodge the issue of Donald Trump ’s immunity from prosecution. But on Wednesday they decided to hear his appeal on the merits of the law and presidential power, though a ruling is sure to infuriate one side or the other.
Democrats were hoping the Justices would pass on the case and let the recent D.C. Circuit Court of Appeals ruling against immunity stand. But as we warned on Feb. 7, the sweeping and dismissive nature of the D.C. Circuit ruling made it more likely that the High Court would take the case. And here we are.
The Supreme Court put the question it will hear on appeal this way: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
A key part of that sentence is “alleged to involve official acts during his tenure in office.” In denying immunity, the trial judge and the D.C. Circuit panel blew past that point as if it didn’t exist. Yet that was a core part of the Supreme Court’s precedent on presidential immunity in Nixon v. Fitzgerald in 1982.
That was a civil case involving a lawsuit. But the Court clearly wants to consider whether that precedent applies to criminal prosecutions as well. The Justices in Nixon ruled that a former President had “absolute immunity” from lawsuits for official acts within the “outer perimeter” of his official duties, lest they make it impossible for a President to fulfill those duties while in office.
If a rush of lawsuits could be crippling to a Presidency, what about the threat of post-presidential prosecutions? The D.C. Circuit opinion suggested that this would be no problem for future Presidents because Mr. Trump poses a unique threat to the rule of law. But is the threat of jail less serious than the threat of civil liability?
Once the precedent of prosecuting a former President has been set, as it has by special counsel Jack Smith, why wouldn’t future Justice Departments do the same — starting, perhaps, with former President Biden in 2025? Mr. Trump has already said “Joe would be ripe for indictment.” The statute books are full of laws that a partisan prosecutor might exploit. The immunity question is important far beyond Mr. Trump’s fate.
It takes only four Justices to grant a writ to hear a case, so it isn’t clear how the Justices will come out. But there were no dissents on the order and it directed the D.C. Circuit to delay returning the case to the trial court until the Supreme Court rules. That suggests there are several Justices who want to clean up the appellate court’s legal overreach and consider whether Mr. Trump is immune from prosecution for acts that involve his official duties.
The appeal is a blow to special counsel Smith, who wants to begin his trial over Mr. Trump’s behavior relating to Jan. 6, 2021, before the election. That timeline is now up in the air. The Court set oral argument for the week of April 22, with a ruling likely in June. But the blame for delay doesn’t lie with the Court, which is following its normal process. The fault lies with the Justice Department for waiting so long to bring the case.
If the Court rules that Mr. Trump has some immunity from prosecution, it is likely to remand the case to the trial court for a factual finding on whether Mr. Trump’s alleged criminal acts were part of his official duties. That would take weeks and delay the trial until past the election or into 2025.
Even if the Court rules against Mr. Trump on immunity, the trial judge has suggested she’ll give the parties about three months to prepare for trial. That takes the start date into September. Will Attorney General Merrick Garland support a trial against a presidential candidate running against the AG’s boss only weeks from Election Day? This would fly in the face of Justice Department rules that advise against such politically consequential prosecutions close to an election. It might backfire politically too.
All of this underscores why prosecuting Mr. Trump as a political strategy was so unwise. The former President’s attempt to overturn the 2020 election was despicable, and it’s a strong reason to deny him so much power again.
But the lawfare strategy has already helped Mr. Trump win the GOP nomination. Now the most consequential case may be delayed past the election. The Manhattan hush money trial is set to begin on March 25, and Mr. Trump might be convicted by a Manhattan jury. But that case itself is so jerry-rigged and partisan that most voters might ignore it.
The Supreme Court will be attacked no matter how it rules, and former House Speaker Nancy Pelosi has already declared that “the Supreme Court is placing itself on trial” by hearing the appeal. No, the Court is doing its job to protect the constitutional order after Democrats decided they couldn’t trust the voters to defeat Mr. Trump.
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March 4
The Los Angeles Times on the slippery slope of abortion rights
The Alabama Supreme Court decision last month determining that frozen embryos have the same rights as children brought the personhood debate to a surreal level that should terrify anyone who supports the right to terminate a pregnancy or start one in a lab through in vitro fertilization.
It was a preposterous ruling — three couples whose frozen embryos were accidentally destroyed at a fertility clinic were found to have the right to sue for wrongful death. But it is an example of the growing anti-abortion effort to redefine embryos — in utero and in laboratory dishes — and fetuses as people with the 14th Amendment right of equal protection under the law.
It’s all part of the chaos over reproductive rights that has engulfed the country since the Supreme Court took away the constitutional right to an abortion in June 2022, and conservative states rushed new and horrible restrictions into law. Now conservative anti-abortion politicians and their supporters have finally found out what it’s like to have a court interfere with their reproductive freedom.
Republican and Democratic lawmakers in Alabama quickly passed a bill Thursday to protect in vitro fertilization providers from criminal and civil liability — some clinics halted procedures after the ruling. It wasn’t a victory for reproductive rights, however, just a stop-gap measure that will be obliterated if the personhood movement gains more traction in state legislatures.
Since Roe vs. Wade was overturned, more than a dozen states have introduced personhood bills bestowing legal rights upon fetuses or embryos, or both. Legislators in Iowa and Colorado have introduced bills that would define personhood as beginning at fertilization and subject to the state’s homicide, wrongful death and assault laws — with no IVF exceptions.
Last week, after the Alabama decision, lawmakers in Florida shelved a bill that protected “ unborn ” children from wrongful death. But it likely will return in some form.
And 18 members of the U.S. Senate and 166 members of the U.S. House co-sponsored legislation in 2021 that would have conferred equal rights under the 14th Amendment to a fertilized egg. The bills have gone nowhere, but that could change depending on the outcome of the election in November.
A number of personhood laws are already on the books. A Georgia law called the Living Infants Fairness and Equality (LIFE) Act declares a fetus a person after six weeks of pregnancy and bans abortion after that point. Louisiana has a law specifically preventing the destruction of embryos.
Abortion foes have been trying to shift the storyline, with a slew of new state laws, from punishing pregnant women to championing innocent fetuses, which is an easier sell to the public. Even Alabama Supreme Court Chief Justice Tom Parker, in his concurrence, waxed on about how “even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”
While personhood laws define an embryo or fetus as having legal rights, state fetal homicide laws vary in how broadly they consider fetuses and embryos as potential victims. Some don’t say anything about abortion. Others exclude it. California’s murder statute extends to killing a fetus if it is done maliciously. But it specifically excludes abortion or any action taken by a person carrying the fetus.
This move toward declaring fetuses and embryos people with legal rights is all the more reason we need a federal law protecting the right to abortion. The decisions that voters make this year in elections will have enormous implications for how much bodily autonomy women are allowed, and could set a course for a dystopian future where their rights are trumped by the rights of their embryos.
Even straightforward legislative efforts to protect IVF have stalled in Washington, D.C. Sen. Tammy Duckworth (D-Ill.) tried to parlay bipartisan concern about the Alabama ruling into support to rush through a bill that would protect an individual’s right to IVF and a clinic’s right to do the procedure. The bill also would allow the U.S. attorney general, an individual or a healthcare provider to sue a state or municipality preventing or limiting that access.
Apparently all that was a bridge too far for Republican Sen. Cindy Hyde-Smith from Mississippi, whose “no” vote quashed its chances. The urgency bill could only pass with unanimous support in the Senate. Hyde-Smith claimed falsely that the bill would, among other things, legalize human cloning and commercial surrogacy (which is already legal in a few states).
The IVF ruling illustrates the further confusion that will come from personhood laws. The IVF procedure involves collecting multiple eggs to fertilize and store so a patient can have several attempts at getting pregnant or determine with their doctor which embryos have the best chance of developing into a healthy pregnancy. If destroying the unused embryos is a crime equal to killing, say, an infant, then another reproductive right will be lost to Americans.
Abortion opponents have so fetishized embryos and fetuses that even when they support the concept of IVF, they can’t let go of their quest for personhood laws that may end up not just prohibiting abortion but making infeasible the IVF procedure that has been such a lifeline for so many who cannot conceive on their own.
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March 4
China Daily on the U.S. war machine
The United States’ military has a habit. It is in constant need of a fix. And it has repeatedly shown that it will say or do anything, without any shame or qualms, to satisfy its craving. The U.S. already has the most powerful military, yet the U.S. top brass are constantly hyping up external threats to try and get more money for their buzz-giver of choice.
This time, it is Stephen Whiting, head of the U.S. Space Command, who has sounded the alarm over what he perceives as China’s rapid advancement in space technology, warning of the potential threats he alleges it poses to U.S. interests in outer space.
Speaking before the U.S. Senate Armed Services Committee on Thursday, Whiting set off a siren about China’s “breathtaking” progress in military space technology and counterspace capabilities, which he claimed are aimed at denying the U.S. and its allies access to space assets when necessary. By 2030, he cautioned lawmakers, China will have reached “world-class status in all but a few space technology areas”.
Whiting didn’t bother to hide the addiction motivating such scaremongering, claiming there was “an urgency for our Command to advocate for delivery of new space capabilities and capacity to retain an enduring competitive advantage” in the space domain.
His playing up of a military threat from China was echoed at the same event by Anthony Cotton, head of the U.S. Strategic Command. The purpose of their hustling, as was evident, was to get cash, and lots of it, in order to modernize the U.S. nuclear triad capabilities, that is its ability to strike from the land, sea and air, a mammoth project expected to ultimately cost $1.5 trillion over the next 30 years. Their unfounded scaremongering was a textbook U.S. military hustle that played to the gallery of their sponsors’ bias. Their pantomime portrayal of China as the villain of their story is risible because contrary to their money-tapping tall tales, no country has posed a more serious threat to other countries’ security in space than the U.S.
The country has in recent years taken significant actions — such as establishing the U.S. Space Force as a new military wing and setting up the U.S. Space Command as a unified combatant command — to accelerate its militarization of space. It is also actively deploying offensive weapons in space and conducting military exercises and technical experiments there. Such moves undermine world peace and stability and risk triggering an arms race in space.
Belying their budget-badgering scare stories, China has advocated the peaceful use of space and opposed a space arms race. It has called on countries to work together to build a community of shared future in space and to carry out in-depth exchanges and cooperation for the mutually beneficial utilization of outer space. It has actively promoted talks on an arms-control treaty on outer space, and cosponsored related United Nations General Assembly resolutions such as No First Placement of Weapons in Outer Space and Prevention of an Arms Race in Outer Space. Facts show that China has remained a stabilizing force, rather than a threat as claimed by the U.S., and it is the leading advocate for cooperative space utilization and exploration for the common security and well-being of humankind.
The U.S. should abandon its Cold War mentality, follow the trend of the times, and join China and other countries in the efforts to preserve space as a global commons, where all countries share broad common interests. Space should be an exciting new frontier for cooperation rather than a battlefield for falsely fear-fueled confrontation.
ONLINE: https://www.chinadaily.com.cn/a/202403/04/WS65e5cfe2a31082fc043ba849.html
