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Should the federal government be able to “urge,” “encourage,” “pressure,” or “induce” social media companies into censoring free speech about COVID-19? A recent ruling in federal court said no. That ruling is the subject of this month’s Soho Forum Debate between law professor Kate Klonick and professor of medicine Dr. Jay Bhattacharya. The resolution is: “The making of national internet policy was hindered, rather than helped, by the July 4th federal court ruling that restricted the Biden administration’s communications with social media platforms.”
Arguing for the affirmative is Kate Klonick, an associate professor at St. John’s University Law School, a fellow at the Brookings Institution, and a distinguished scholar at the Institute for Humane Studies. Her writing has appeared in the Harvard Law Review, Yale Law Journal, The New Yorker, The New York Times, The Atlantic, The Washington Post, and numerous other publications.
Arguing against the resolution is Jay Bhattacharya, M.D. Ph.D., a professor of medicine at Stanford University. He is a research associate at the National Bureau of Economics Research, as well as a senior fellow at the Stanford Institute for Economic Policy Research and at the Stanford Freeman Spogli Institute for International Studies. His research focuses on the economics of health care around the world with a particular emphasis on the health and well-being of vulnerable populations. His peer-reviewed research has been published in economics, statistics, legal, medical, public health, and health policy journals. Dr. Bhattacharya was one of three main co-signatories of the Great Barrington Declaration of October 2020, an open letter published in response to the COVID-19 pandemic and lockdowns.
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Gene Epstein
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Should the federal government be able to “urge,” “encourage,” “pressure,” or “induce” social media companies into censoring free speech about COVID-19? A recent ruling in federal court said no. That ruling is the subject of this month’s Soho Forum Debate between law professor Kate Klonick and professor of medicine Dr. Jay Bhattacharya. The resolution is: “The making of national internet policy was hindered, rather than helped, by the July 4th federal court ruling that restricted the Biden administration’s communications with social media platforms.”
Arguing for the affirmative is Kate Klonick, an associate professor at St. John’s University Law School, a fellow at the Brookings Institution, and a distinguished scholar at the Institute for Humane Studies. Her writing has appeared in the Harvard Law Review, Yale Law Journal, The New Yorker, The New York Times, The Atlantic, The Washington Post, and numerous other publications.
Arguing against the resolution is Jay Bhattacharya, M.D. Ph.D., a professor of medicine at Stanford University. He is a research associate at the National Bureau of Economics Research, as well as a senior fellow at the Stanford Institute for Economic Policy Research and at the Stanford Freeman Spogli Institute for International Studies. His research focuses on the economics of health care around the world with a particular emphasis on the health and well-being of vulnerable populations. His peer-reviewed research has been published in economics, statistics, legal, medical, public health, and health policy journals. Dr. Bhattacharya was one of three main co-signatories of the Great Barrington Declaration of October 2020, an open letter published in response to the COVID-19 pandemic and lockdowns.
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Gene Epstein
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In late November, Tesla Motors delivered the first 10 Cybertrucks to customers, over four years after it was first unveiled as a concept prototype and two years after it was originally supposed to begin production. The odd, angular electric vehicle with a stainless steel exterior attempts to marry Tesla-style sports car performance with the rugged function of a pickup truck. The Wall Street Journal characterized it as “a giant, steel triangle on wheels.”
Depending on options, the Cybertruck can achieve 600–845 horsepower and cost between $60,000–$100,000—clearly making it a luxury purchase and not for the shopper on a budget.
So why, then, do some models qualify for federal tax credits?
As part of President Joe Biden’s pledge to transition the U.S. to greener sources of energy, the 2022 Inflation Reduction Act (IRA) established $7,500 tax credits for purchases of electric vehicles (E.V.s).
“Working families will be able to use tax credits that make electric vehicles more affordable,” brags the White House’s Clean Energy webpage. “Purchasing an electric vehicle (EV) can save families thousands of dollars on fuel costs over the life of their car.”
But according to FuelEconomy.gov, maintained by the U.S. Department of Energy, the Cybertruck can qualify for the tax credits as well.

The site notes that qualifying models must be assembled in North America and are limited to a retail price of $80,000, the same parameters put on any vehicles that hope to qualify. Since the Cybertruck is assembled in Tesla’s Texas Gigafactory and two of its current options retail under $80,000, it could indeed qualify.
Neither the IRS nor the Department of Energy responded to Reason‘s requests for confirmation that the Cybertrucks would qualify, but Tesla clearly thinks so: The Cybertruck order page on the automaker’s website lists “purchase price” alongside prices with “probable savings,” which “assume IRA Federal Tax Credits up to $7,500 for Rear-Wheel Drive and All-Wheel Drive and est. gas savings of $3,600 over 3 years.”
It’s worth wondering why the Cybertruck should qualify for tax credits that are nominally intended to benefit people who want to switch to an electric vehicle and need a little help. It stands to reason that anybody both willing and able to spend around the median annual household income on a futuristic-looking luxury truck should have to cover the entire cost themselves, without any help from the American taxpayer.
Earlier this year, Biden promoted the E.V. tax credits by tweeting a photo of himself driving a GMC Hummer EV, even though no version of the Hummer EV available at the time cost less than $84,000. For the 2024 model year, GMC is planning to offer the base model EV2 starting at $79,995—$5 below the cutoff. Similarly, Tesla currently set the all-wheel-drive Cybertruck’s retail price at $79,990.
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Joe Lancaster
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President Biden has invited Ukrainian President Volodymyr Zelenskyy to meet with him on Tuesday, the White House announced Sunday.
The meeting will take place just days after a Democratic bill with billions in aid for Ukraine and Israel failed to clear the Senate, caught up in a debate over U.S. immigration policy and border security.
Mr. Biden chided GOP lawmakers for their opposition to the package, saying that Republicans are willing to give Russian President Vladimir Putin “the greatest gift” if they don’t pass additional funding.
“Cutting off the flow of U.S. weapons and equipment will kneecap Ukraine on the battlefield,” U.S. Office of Management and Budget head Shalanda Young wrote in a Monday letter to House and Senate leaders.
“I want to be clear: without congressional action, by the end of the year we will run out of resources to procure more weapons and equipment for Ukraine and to provide equipment from U.S. military stocks,” Young wrote. “There is no magical pot of funding available to meet this moment. We are out of money—and nearly out of time.”
Zelenskyy had planned to address American lawmakers last week, but he canceled at the last moment. Before the change of plans, Sen. Chuck Schumer noted it would have been the third time Zelenskyy had addressed senators since Russia invaded Ukraine.
“The last time he spoke to us, his message was direct and unsparing,” Schumer said. “Without more aid from Congress, Ukraine does not have the means to defeat Vladimir Putin. Without more aid from Congress, Ukraine may fall.”
This week’s meeting at the White House is to “underscore the United States’ unshakeable commitment to supporting the people of Ukraine as they defend themselves against Russia’s brutal invasion,” White House Press Secretary Karine Jean-Pierre said.
“As Russia ramps up its missile and drone strikes against Ukraine, the leaders will discuss Ukraine’s urgent needs and the vital importance of the United States’ continued support at this critical moment,” Jean-Pierre added.
Secretary of State Antony Blinken on Wednesday announced a $175 million package of military aid to Ukraine. The aid package includes air defense munitions, additional ammunition for High Mobility Artillery Rockets Systems and artillery ammunition.
“Unless Congress acts to pass the President’s national security supplemental funding request, this will be one of the last security assistance packages we can provide to Ukraine,” Blinken said, urging Congress to “act immediately.”
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Going around Congress, the Biden administration said Saturday it has approved the emergency sale to Israel of nearly 14,000 rounds of tank ammunition worth more than $106 million as Israel intensifies its military operations in the southern Gaza Strip.
The move comes as President Biden’s request for a nearly $106 billion aid package for Ukraine, Israel and other national security is languishing in Congress, caught up in a debate over U.S. immigration policy and border security. Some Democratic lawmakers have spoken of making the proposed $14.3 billion in American assistance to its Mideast ally contingent on concrete steps by Israeli Prime Minister Benjamin Netanyahu’s government to reduce civilian casualties in Gaza during the war with Hamas.
The State Department said it had notified Congress of the sale late Friday after Secretary of State Antony Blinken determined “an emergency exists that requires the immediate sale” of the munitions in the U.S. national security interest.
That means the purchase will bypass the congressional review requirement for foreign military sales. Such determinations are rare, but not unprecedented when administrations see an urgent need for weapons to be delivered without waiting for lawmakers’ approval.
Mostafa Alkharouf/Anadolu via Getty Images
“The United States is committed to the security of Israel, and it is vital to U.S. national interests to assist Israel to develop and maintain a strong and ready self-defense capability. This proposed sale is consistent with those objectives,” the department said in a statement. “Israel will use the enhanced capability as a deterrent to regional threats and to strengthen its homeland defense.”
The sale is worth $106.5 million and includes 13,981 120 mm High Explosive Anti-Tank Multi-Purpose with Tracer tank cartridges as well as U.S. support, engineering and logistics. The material will come from Army inventory.
Bypassing Congress with emergency determinations for arms sales is an unusual step that has in the past met resistance from lawmakers, who normally have a period of time to weigh on proposed weapons transfers and, in some cases, block them.
In May, 2019, then-Secretary of State Mike Pompeo made an emergency determination for an $8.1 billion sale of weapons to Saudi Arabia, the United Arab Emirates and Jordan after it became clear that the Trump administration would have trouble overcoming lawmakers’ concerns about the Saudi- UAE-led war in Yemen.
Pompeo came under heavy criticism for the move, which some believed may have violated the law because many of the weapons involved had yet to be built and could not be delivered urgently. But he was cleared of any wrongdoing after an internal investigation.
At least four administrations have used the authority since 1979. President George H.W. Bush’s administration used it during the Gulf War to get arms quickly to Saudi Arabia.
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A federal judge in California on Friday approved a court settlement that will prohibit federal U.S. border officials from reviving the Trump-era “zero tolerance” family separation policy for the next eight years.
Under the settlement between the American Civil Liberties Union and the Biden administration, the federal government will be barred from separating migrant families solely for the purposes of prosecuting the parents for entering the U.S. illegally. There are limited exceptions to the eight-year ban, such as when a parent poses a risk to their children.
The settlement also provides social and legal benefits to migrant families affected by the Trump-era practice, which led to the separation of roughly 5,000 children from their parents. The agreement does not include monetary compensation, which was considered by the Biden administration until an outcry by Republican lawmakers in Congress.
U.S. District Court Judge Dana Sabraw approved the settlement during a hearing Friday in San Diego, Lee Gelernt, the lead ACLU attorney in the case, told CBS News. A formal order codifying the agreement is expected to be issued Monday, Gelernt added.
“This settlement is a critical step toward closing one of the darkest chapters of the Trump administration,” Gelernt said. “Babies and toddlers were literally ripped from their parents’ arms under this horrific practice.”
Sarah L. Voisin/The Washington Post via Getty Images
In 2018, Sabraw barred the Trump administration from separating migrant children from their parents and ordered officials to reunite separated families.
On Friday, Sabraw, an appointee of former President George W. Bush, called the family separation practice “one of the most shameful chapters in the history of our country,” referring to the ACLU’s lawsuit against the policy as “righteous litigation,” according to a transcript of the hearing. The deportation of parents without their children, he added, was “simply cruel.”
While on the 2024 campaign trail, former President Donald Trump has repeatedly refused to rule out reinstating his infamous border separation policy.
Soon after taking office, President Biden created a task force that has reunited hundreds of migrant families, allowing parents who had been deported from the U.S. without their children to return to the country. It has also provided the families temporary legal status and work permits.
The ACLU estimates that between 500 and 1,000 children split up from their parents as a result of the Trump-era policy remain separated from their families.
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Gifts for Putin? “Republicans in Congress are willing to give Putin the greatest gift he could hope for,” said President Joe Biden this week, in response to fiscal conservatives holding up a spending package that would dole out $110 billion in funding for Ukraine.
Republicans are saying that addressing the situation at the southern border is a necessary prerequisite, something that Biden must prioritize if he wants Ukraine aid approved. Biden said his political opponents, in opposing that massive chunk of government spending, “are playing chicken with our national security” but that he is also interested in “mak[ing] significant compromises on the border,” if that’s what is deemed necessary to get Ukraine money approved.
“Biden now faces a difficult choice about how much to throw himself into talks on an issue that for decades has defied efforts to reach bipartisan compromise,” reports The New York Times. “And he will have to decide how far to go in giving in to conservative demands that he substantially choke off the number of migrants admitted to the United States while their asylum claims are considered.”
It’s a shame there are so few legitimately principled fiscal conservatives in Congress; holding up one form of spending to get another type greenlit is a time-honored tradition, but not one that truly dials back government spending.
Congressional testimony fallout: After the presidents of Harvard, the University of Pennsylvania, and the Massachusetts Institute of Technology all testified in front of Congress earlier this week on the issue of antisemitism on campus, the board of Penn’s business school, Wharton, is calling on President Liz Magill to resign.
It’s crazy that the free speech hypocrisy on elite campuses has gone on for this long and gotten this bad. High-up university donors and governing bodies should have probably pushed for cleaning house long ago, and more forcefully communicated opposition to the imposition of diversity, equity, and inclusion (DEI) bureaucracies, campus speaker shout downs, and the like.
Meanwhile, the mainstream media treatment of the issue has changed quite a bit over the last few days.
Difference between Day 1 and Day 2 Coverage of the same event by the NYT. What happened in the meantime? I mean the NYT saw the event unspool, and initially thought it was parrying not dodging. pic.twitter.com/R2EiIcFscQ
— Mike Pesca (@pescami) December 7, 2023
The distinction made between conduct and speech by all three presidents remains largely correct. University administrators should push for and enforce policies that are broadly speech-permissive. It’s just that there’s a hollowness to this being their stance now after years of skirting this commitment.
“What does it mean to make Jewish students feel safe on campus? One way would be to crack down on anti-Israel rhetoric that might make many Jews feel threatened. That would be consistent with the methods universities have sometimes employed to protect other minority groups,” writes Intelligencer‘s Jonathan Chait. “But it would also be deeply illiberal.”
“When elite university presidents claim that even hateful speech should enjoy ironclad protection on college campuses, they are absolutely correct,” writes Reason‘s Robby Soave. “But if they are asserting that speech characterized as hateful currently enjoys ironclad protection on their campuses, they are blind.”
Scenes from New York: Enjoyed chatting with Matt Taibbi on camera last night (possible Reason video forthcoming) at his provocatively-titled event “Hey, Haters: Come to Argue about Free Speech and Censorship in Park Slope.” People were mostly sensible Taibbi superfans concerned by the government jawboning of social media companies.

This guy got a vasectomy because he was worried a kid would cause climate change and then he and his wife took a 4-year traveling honeymoon around Asia running a travel writing gig and racking up about 4-12x a normal person’s emissions all in one go. https://t.co/xPry1lh0c9
— Lyman Stone 石來民 ???????????? (@lymanstoneky) December 7, 2023
The Home Act passed yesterday at Austin City Council!
– 3 units allowed in SF-1,2,3 zones
– Duplexes allowed on 5,000 SF lots
– expanded FAR
– front setbacks now 15 feet
– reduction in occupancy limits
– tiny homes legal 400 SF and under
Biggest changes in decades.
— ATX RE Podcast (@atxREpodcast) December 8, 2023
Yesterday, a sitting US Senator actually claimed that imported garlic was a national security threat pic.twitter.com/IWPAfafNR3
— Scott Lincicome (@scottlincicome) December 7, 2023
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Liz Wolfe
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Federal prosecutors filed nine new tax-related criminal charges, including three felony counts, against Hunter Biden on Thursday night, as part of the Department of Justice’s yearslong probe into President Joe Biden’s 53-year-old son.
The latest indictment, which was filed in California, accuses Biden of failure to file and pay taxes, tax evasion, and filing a false return. The 56-page court document alleges that Biden “engaged in a four-year scheme to not pay at least $1.4 million in self-assessed federal taxes he owed for tax years 2016 through 2019” and that he “spent millions of dollars on an extravagant lifestyle rather than paying his tax bills.”
David Weiss, who was nominated U.S. Attorney by President Donald Trump in 2017 and designated Special Counsel by President Biden’s Attorney General Merrick Garland in August to oversee the investigations into Hunter Biden, brought the charges. Trump-appointed district judge Mark C. Scarsi has been assigned to the case.
A press release by Weiss and the Justice Department indicated that Biden could face a maximum penalty of 17 years in prison if convicted. The White House has not commented on the indictment, but Hunter Biden’s attorney Abbe Lowell claimed in a statement late Thursday that the charges are politically motivated. “Based on the facts and the law, if Hunter’s last name was anything other than Biden, the charges in Delaware, and now in California, would have not been brought,” Lowell said, adding that Weiss “bowed to Republican pressure” and that “no new evidence” has been found.
Biden was previously federally charged in a Delaware court in September with three criminal counts related to allegedly lying about his drug use when purchasing a firearm in 2018. Those charges, which were the first to be leveled against a sitting President’s child, in addition to the latest tax-related charges, come just a few months after the collapse of a misdemeanor plea deal Biden was set to agree to so that he could avoid jail time and additional lengthy legal proceedings.
The charges against Hunter Biden are set to cast a larger legal shadow over the 2024 U.S. presidential election, which is expected to once again pit President Joe Biden against former President Trump, who himself faces multiple criminal indictments and whose children have also been entangled in conflict-of-interest questions. House Republicans are also pursuing an impeachment inquiry against President Biden, alleging a “culture of corruption” involving the President and his son, though no evidence has been revealed to implicate the elder Biden in the younger’s alleged wrongdoing.
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Chad de Guzman
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Nearly $5 billion in additional student loan debt forgiveness for over 80,000 student borrowers has been approved, the White House announced Wednesday. The relief is made possible by fixes to the Public Service Loan Forgiveness program.
This latest $4.8 billion in relief brings the grand total of approved debt cancellation by the administration to $132 billion for over 3.6 million Americans, according to the White House.
Borrowers are eligible for relief through the Public Service Loan Forgiveness program, which allows certain public-sector employees to have their remaining debt forgiven after they have made 10 years’ worth or payments, or if they “have been in repayment for at least 20 years – but didn’t accurately get credit for student loan payment,” the White House said.
“From Day One of my Administration, I vowed to improve the student loan system so that a higher education provides Americans with opportunity and prosperity — not unmanageable burdens of student loan debt,” said Biden.
Bonnie Cash/UPI/Bloomberg via Getty Images
“I won’t back down from using every tool at our disposal to get student loan borrowers the relief they need to reach their dreams.”
In October, the Biden administration announced that it would be forgiving $9 billion in student debt for 125,000 borrowers, a move that coincided with the resuming of student loan repayments after a more than three-year hiatus.
This most recent debt cancellation is the latest push by the Biden administration to erase some student loan debt following a June ruling by the Supreme Court that invalidated the administration’s plan for broad-based student loan forgiveness. The plan would have helped more than 40 million borrowers erase up to $20,000 each in debt.
“In the wake of the Supreme Court’s decision on our student debt relief plan, we are continuing to pursue an alternative path to deliver student debt relief to as many borrowers as possible as quickly as possible,” said Biden.
Borrowers can visit studentaid.gov to apply for this latest round of forgiveness.
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President Joe Biden’s administration is currently considering new regulations that will deny middle-class and upper-middle-class Americans crucial child care services, specifically hampering their ability to welcome au pairs into their families. Biden has proposed further regulating the federal au pair program, which will disproportionately burden highly skilled working mothers, maybe even to the point of driving more of them out of the workforce.
For me, this issue is personal. Like millions of families in the summer of 2020, my family faced a childcare crisis due to the COVID-19 pandemic. The daycare our two young boys attended, aged one and three at the time, closed its doors, and our temporary nanny found another job. Fortunately, my wife and I were both healthy and able to work from home. But caring for two young children while working proved challenging.
We tried to find a solution and re-enrolled our boys in daycare, but it closed down for days at a time due to COVID cases. As a result, my wife and I had to take turns working and taking care of the children. I’d work during the morning and early afternoon, she’d work in the late afternoon and night. It was unsustainable.
Desperate, we finally considered hiring an au pair, a step we had never seriously considered before. The idea of having a stranger live with us seemed off-putting. We were not used to having help at home. We associated such arrangements with the super-rich who could afford butlers, maids, and private jets. But the pandemic left us no choice and convinced us to take the plunge.
We are so glad we did.
We contacted an au pair agency and began interviewing au pairs within days. Due to COVID-related border closures enacted by the Trump administration, new au pairs weren’t coming to the United States, but those already here could switch families. After multiple interviews and in-person meetings, we decided we wanted to hire Neevoliah, who was originally from South Africa and had been with another family in San Francisco. She joined our family in early fall 2020.
I stayed home with the kids while my wife went to the airport to pick up Neevoliah. Out of nervousness, I paced back and forth before they got home. What if we didn’t get along? What if she was messy? What if she was terrible with children or, God forbid, irresponsible? What if the kids hated her or my wife and I couldn’t stand her? What if it was just too weird to have a stranger live in our home? I had visions of conflict: passive-aggressive fights over the washing machine, yelling about the dishes, and having to fire her.
But none of those things happened. Neevoliah was nice, pleasant, and responsible. It took about 20 minutes for us to get used to her living in our house. She joined our family, shared meals with us every day, and hung out with us on the weekends. We baked together, went to the store as a family, and shared our cultures. During the day, she watched the kids and took them all over the neighborhood to play. My wife and I could work, and the kids were safe and entertained.
My kids love her, called her “Nee,” and had both a friend in her and another adult figure to set an example, discipline them, and guide them.
Having an au pair was not like having an employee living in our house, it was like having a cousin or a niece living with us. Neither my wife nor I expected to feel that bond with our au pair and our kids found somebody else who loved and cared for them.
Hiring an au pair was the second-best decision we’ve made regarding our children (the best was having them). But the Biden administration’s proposed regulatory changes could end this program for us and thousands of other middle-class families. According to a new rule just released, the administration is proposing that wages be broadly determined by state minimum wage laws and calibrated upward based on an arbitrary tier system instead of the federal minimum wage, reducing the number of work hours, creating more complicated reporting schemes for hours worked and other requirements, and increasing the amount families must spend on education for au pairs. In short, every rule the Biden administration proposes will make it more expensive for families to hire au pairs and result in many fewer of them coming to the United States.
These changes would make it financially difficult for us and impossible for thousands of other Americans to continue hosting au pairs. In Virginia, where my family and I live, this regulation would increase the weekly wage we pay by 78.5 percent. Instead of hiring an au pair for another year, we may have to stop using the program. The fallout from a recent court ruling in Massachusetts bears this out.
In December 2019, the U.S. Court of Appeals for the First Circuit ruled that Massachusetts’ high minimum wage applied to au pairs—a previously excluded category of workers. Beginning on January 1, 2020, the weekly wage for au pairs increased by 170 percent including a minor deduction for supplying free room and board. Predictably, the number of new au pairs moving to Massachusetts collapsed as middle-class families were priced out.
The number of new au pairs arriving in Massachusetts in 2022 was 68.1 percent below 2019—the year before the state’s minimum wage applied to au pairs. At the same time, the number of new au pairs arriving in states unaffected by the court’s ruling rose 4.4 percent. It was as if Massachusetts’ minimum wage created a permanent semi-closed border around Massachusetts that locked out au pairs.
Now, the Biden administration is considering regulations that will do the same thing nationwide—denying middle-class American families, au pairs, and, particularly, my family the ability to utilize au pair services. If the U.S. sees any effect similar to what happened in Massachusetts, it could be catastrophic for working mothers—especially in blue states with higher minimum wages.
The government started the au pair program to advance public diplomacy by increasing understanding and cultural exchange between Americans and foreigners. Indeed, one of the justifications for the new regulation is to maintain “position cultural immersion experiences.” But the downside of insisting on higher state and local minimum wages adjusted upward by a federal tier is that many fewer au pairs will be employed in the United States. That undermines the stated purpose of the program.
When Neevoliah was still with us, we welcomed our third child to our family—a beautiful baby girl. Neevoliah loved our daughter immediately and their bond was tight—she took the best photos of her. Neevoliah had to leave a year after she joined our family. Since, we’ve had a few other au pairs and even managed to replicate that first experience again. We still talk with Nee even though she’s back in South Africa. Our kids FaceTime with her and, when they’re not talking with her, they talk about her like a member of the family because she is one.
Regulating the au pair program out of existence would materially and financially harm families like mine. Our childcare situation would worsen, our youngest kids would have to go to daycare part of the day, and my wife (who works from home) would be burdened with even more responsibilities when I’m at the office. But the worst loss is the bond and emotional connection that we’d be prevented from forming with new au pairs—and the sadness that tens of thousands of other American families wouldn’t be able to discover it for themselves.
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Alex Nowrasteh
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The Thursday debate between California Gov. Gavin Newsom and Florida Gov. Ron DeSantis on Fox News — the talk of the political world this past week — delivered a decent bump in the channel’s ratings.
Billed as the “The Great Red State vs. Blue State Debate,” the event moderated by Fox News host Sean Hannity averaged 4.75 million viewers, according to Nielsen data.
The number was more than double the November average for “Hannity,” which was 2.3 million viewers, as the debate pulled in people who do not typically watch his nightly diatribes against liberals and the Biden administration. The figure also accounted for 73% of the viewers watching cable news in the 9 p.m time slot.
The event faced stiff competition, up against a close, high-scoring “Thursday Night Football” contest between the Dallas Cowboys and Seattle Seahawks streaming on Amazon, and the finale of “The Golden Bachelor” on ABC, the most-watched TV program of the night.
The highly anticipated match-up staged in a suburb outside Atlanta was unusual for TV news, with DeSantis, a contender for the 2024 Republican nomination for president, facing off against a sitting governor who has repeatedly stated he is not running for national office.
Newsom, a leading surrogate for the Democratic party, was also entering an arena where the moderator, Hannity, was clearly aligned politically with DeSantis.
Despite the efforts of Hannity to keep order — he pleaded on and off the air with both participants to not talk over each other — the 90-minute event became chaotic at times, making it difficult for viewers to understand either of them.
The questions offered up by the conservative host were mostly built around unfavorable comparisons of California to Florida on issues such as crime, handling of the COVID-19 pandemic, homelessness and gasoline prices, and put Newsom on the defense for much of the evening.
But Newsom entered the showdown with nothing to lose, as he is insistent he will not be Democratic candidate for president in 2024, despite chatter in right-wing circles. He largely used his time to defend the performance of President Biden’s administration while getting exposure in front of a national audience that may not have been familiar with him.
When Hannity served up a question stating emphatically that Biden was in cognitive decline, Newsom shot back that he will “take Joe Biden at 100 versus Ron DeSantis any day of the week at any age.”
DeSantis needed the event to ignite his flagging presidential campaign, as he badly trails former President Trump in polls and has fallen behind former UN Ambassador Nikki Haley in some primary states.
DeSantis used props in his presentation, including a very brown map that depicted the volume of human fecal matter on the streets of San Francisco, where Newsom was once mayor.
Fox News used clips of the debate on its Friday opinion programs, touting it as a win for DeSantis, who up to now has failed to catch fire with the network’s audience.
“This was a victory of conservatism over liberalism,” said Kaleigh McEnany, the former Trump White House press secretary who is now a co-host of the Fox News daytime show “Outnumbered.”
But McEnany said Newsom, whom she described as “sharp,” cannot be written off as a political competitor.
“Watch out for him, because he’s coming if not in ‘24, in ‘28,” she said.
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Stephen Battaglio
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The culmination of the Newsom-DeSantis bromance is upon us, the mano a mano matchup of two governors who depend on each other to whip up the kind of polarizing frenzy that feeds headlines and advances careers.
They will hold a debate Thursday night on Fox News, moderated by far-right provocateur Sean Hannity, an event that has been hyped so much you’d be forgiven for thinking the stakes were high, that this made-for-television stunt actually matters.
Which, of course, it does not.
“It’s political theater in its most ridiculous form,” Mindy Romero told me. She’s the director of the Center for Inclusive Democracy at the USC Sol Price School of Public Policy. “This doesn’t benefit the voters.”
If we wanted something substantial, something that might change the results of the next election, we’d put Republican hopeful Nikki Haley in the room with Vice President Kamala Harris — two daughters of immigrants (Haley is South Asian, Harris is mixed-race, South Asian and Black) with differing views of America but the shared ability to reach apathetic and disenfranchised voters. But I’ll get to that.
While the spectacle of Newsom and DeSantis going at each other may provide zingers and red-blue outrage, it is unlikely to sway voters because neither man is an actual contender for anything.
DeSantis’ presidential campaign is sinking, and not even platform shoes can keep his head above water. Even in the unlikely circumstance that he humiliated Newsom with an unexpected bout of superior wit and grasp of fact, it wouldn’t make up for his fundraising problems, falling poll numbers or the orange elephant in the room, Donald Trump, who is leaps and bounds ahead of any other Republican contenders when it comes to dedicated voters.
Then there is Newsom, who is absolutely, positively not running for president, though his team has put together a surprisingly successful and smart campaign to position him as a Biden surrogate, ready to step in if needed. And, as I have said before, I appreciate Newsom speaking out, and taking action, on issues including reproductive freedom.
The problem is he’s not needed, this time around, anyway.
And so, we have spectacle without substance when it comes to the Newsom-DeSantis drama. As the first female British prime minister Margaret Thatcher put it in 1965, “If you want something said, ask a man; if you want something done, ask a woman.”
Or as Romero said, “Isn’t that what we always see, two male politicians louder and bolder, taking the spotlight from women of color? I am not surprised by this at all.”
It may not be surprising, but it is concerning to see that spotlight in the wrong place.
The presidential election is going to be close. The votes on the margins will likely decide whether Biden holds the Oval Office or not. Key among those iffy ballots, for both parties, are younger people and voters of color.
Those are votes that Harris and Haley are well-positioned to earn — but also ones that, if left unattended, could cost the race for either side.
If Americans under the age of 45 vote at the same rate as they did in 2020, a recent Brookings Institute poll found, they will account for more than one-third of the electorate.
But young voters are not happy.
Young Republicans have a generational split over access to abortions. Nearly three-fourths of adults under age 30 say abortion should be legal in all or most cases, according to a 2022 Pew Research poll. The Brookings poll found 47% of Republicans ages 18 to 44 voiced similar opinions.
In the past few weeks, Haley has gained momentum and won critical support in positioning herself as a post-MAGA candidate — even attempting, not always successfully, to find a less strident way to speak about abortion while still supporting bans.
Recently, Haley earned a critical endorsement from the conservative grassroots organization Americans for Prosperity Action, which was co-founded by billionaire Charles Koch and comes with not only money, but the political machine to back it up.
Her rallies are drawing bigger crowds and her poll numbers show that in places where DeSantis’ numbers are slipping, she is gaining.
She’s still nowhere close to being a real challenger to Trump, but she is offering up a path forward for Republicans who want a Trump-lite government, all the conservatism without the overt turn toward authoritarianism. Anything that pulls Republicans away from straight-up fascism should be considered significant, particularly as DeSantis tries to out-Trump Trump with anti-everything policies targeting history, LGBTQ+ communities, Disneyland and more.
For Democrats, the problem with young voters, especially people of color, is apparent around the Biden administration’s response to the fighting in Israel and Gaza. His administration, even with its commitment to climate change, gun control and economic priorities such as canceling student loan debt, seems out of touch.
About 70% of people 18 to 34 disapprove of Biden’s handling of the Israel-Hamas war, an NBC News poll found. Many of those young progressives see the Palestinian cause as linked to social justice issues for communities of color in the United States.
Dov Waxman, director of the UCLA Y&S Nazarian Center for Israel Studies, said he believes the anger of those young progressives may fade by the 2024 elections, but their apathy may still keep them from voting.
Biden “has kind of a broader, deeper problem with younger voters and certainly this has exacerbated it,” Waxman said.
Adrianne Shropshire, executive director of BlackPAC, which helps organize Black voters, said Harris is critical to countering that apathy, and is “uniquely positioned in many ways because of her identities,” to reach disaffected groups.
Despite endless attacks that Harris faces from Republicans (and even from within her own party), which often use the prospect of a Harris presidency as a kind of threat, “there is a real connection she makes with Black voters,” Shropshire said.
And though she faces a relentless narrative that she is unlikable, as Hillary Clinton did, the idea that she might be kicked off the ticket in favor of someone more palatable such as Newsom is a non-starter — a disastrous misread of voters of color, young, progressive voters and women.
“They’re not going to dump her. They can’t dump her,” Dan Morain told me. He’s the author of the definitive biography on Harris, “Kamala’s Way,” and has chronicled her career since she was a lowly prosecutor.
Instead, Morain, Shropshire and others said the administration needs to better use her identity and skills in the next campaign cycle, leaning into who she is — leaning into who voters are.
“You just look at Harris and what she does, She’s just she is more attuned to younger people than [Biden] ever will be,” Morain said.
And so we have two interesting women, closer to the Oval Office than either Newsom or DeSantis will likely be anytime soon (though I’d give Newsom a shot in 2028).
Haley and Harris are both seasoned, tough survivors who have more in common with most American voters — who are increasingly not white, much to the chagrin of some — but who are stymied by their sex as has been every woman who has ever run for office.
Trump has nicknamed Haley “birdbrain.” Harris’ laugh has been described as a “cackle.”
But Newsom and DeSantis are, as Hannity put it, are “two heavyweights” who are “stepping into a war.”
They definitely have something that Harris and Haley lack, but it’s not a shot at the presidency.
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Anita Chabria
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Where to even start in cataloging the most ridiculous—and alarming—recent rulings to come out of the U.S. Court of Appeals for the Fifth Circuit?
There’s a case about whether a class action could go forward that boiled down to a dispute among three Fifth Circuit judges over the meaning of a Bible verse. There’s a case in which the Fifth Circuit allowed three doctors to sue the FDA over a tweet intended to discourage ivermectin use that read, “You are not a horse. You are not a cow. Seriously, y’all. Stop it.” There’s a case in which the Fifth Circuit barred the Biden administration from requiring Navy SEALs to be vaccinated against COVID, because the court’s conception of religious liberty supersedes the military’s need for frontline troops to be healthy. There’s a case in which the Fifth Circuit held that the way Congress funds the Consumer Financial Protection Bureau (a mechanism Congress has regularly used since America’s founding) is unconstitutional because Congress only imposed a limit on the appropriation, rather than putting a precise dollar figure on it. There’s the Fifth Circuit’s repeated insinuation that individual district judges, rather than the Biden administration, are better situated to supervise and direct federal immigration policy. There’s … you get the idea. When the hosts of the popular Strict Scrutiny podcast devoted an entire hour-long episode to flagging especially problematic Fifth Circuit rulings, they ran out of time.
The Fifth Circuit is the federal appeals court covering Louisiana, Mississippi, and Texas (where I live), and it has in recent years become the place where just about every right-wing litigant who can brings lawsuits to test novel and extreme legal arguments. It’s not that a disproportionate percentage of major legal issues are arising in those three states; it’s that conservative and right-wing litigants are deliberately steering disputes to a handful of sympathetic district judges in Texas, from where they know that any appeal will go to the Fifth Circuit—whose judges are far more likely than others in the country to take their side.
A nationwide challenge to the FDA’s approval of mifepristone? Filed in Amarillo. Nationwide challenges to the Biden administration’s immigration policies? Filed in Victoria. Elon Musk’s new (and laughably weak) lawsuit against Media Matters, which has no geographic connection to the Fifth Circuit whatsoever? Filed in Fort Worth. These aren’t exactly destinations for vacations, but they’re the typical destinations today for overwhelming majority of litigation with an obvious rightward ideological or partisan tilt.
Back in April, David A. Graham wrote in The Atlantic about the rise of “total politics”—where our political institutions have gravitated away from behaving with prudence in favor of scoring short-term political points. All that matters is #winning, long-term institutional consequences be damned.
As alarming a development as that is in the context of the democratically elected branches (where voters could at least theoretically push back), it’s even worse when it comes from unelected judges—whose legitimacy depends on at least a loose public belief in their prudence. And especially when these rulings have consequences far outside the borders of its three states, the Fifth Circuit’s run of sweeping decisions undermines public faith in the federal judiciary nationally—not just from the eastern border of New Mexico to the western border of Alabama.
What the Fifth Circuit is doing is participating in an extraordinary power grab, indifferent to the procedural rules that are supposed to constrain the powers of unelected judges. For instance, the Fifth Circuit regularly holds that challengers to whom it is sympathetic have standing—the right to bring a suit—in contexts in which the Supreme Court has, for decades, held to the contrary.
The judges do this not because they have an unusually capacious approach to standing; they routinely reject the standing of plaintiffs to whom they are less sympathetic. Rather, they bend over backwards to take procedural shortcuts when they want to rule on the merits, such as in the challenges to the Biden administration’s proposed requirement that large employers require COVID vaccinations or regular tests. Even though the Fifth Circuit had only a 10 percent chance of winning the “inter-circuit lottery” that randomly assigns this type of dispute to a federal appeals court, it decided to jump the gun—issuing a premature decision, before the lottery took away its power, that the Biden rule was unlawful. (The Sixth Circuit, which “won” the lottery, quickly vacated the Fifth Circuit’s decision.)
Moreover, the Fifth Circuit’s approach to both constitutional and statutory interpretation reflects a rather wooden application of even the conservative methodologies championed by the current Supreme Court. Consider the court of appeals’ ruling in United States v. Rahimi, in which the panel struck down a federal law barring people subject to domestic-violence-related restraining orders from possessing firearms. Even though the federal government offered numerous examples of founding-era laws that restricted firearm possession by “dangerous” individuals, the court of appeals rejected that analogy—concluding that domestic-violence restraining orders were too specific a subcategory of danger for the comparison to hold. (In another bizarre procedural move, the court subsequently amended its analysis although no party asked it to—perhaps in response to some of the public criticisms that had emerged.)
The same cherry-picking of historical examples can be found in the CFPB case, in which the court of appeals either ignored or unpersuasively distinguished countless historical examples of similar congressional-funding statutes. When, at the recent Supreme Court oral argument in the case, Justice Samuel Alito tried to defend the Fifth Circuit’s efforts, U.S. Solicitor General Elizabeth Prelogar sarcastically conceded that, at the very least, none of those examples involved an agency with the same name.
The Fifth Circuit’s approach to statutory interpretation has been just as transparently results-oriented. One especially notorious example is the court’s conclusion that the Nuclear Regulatory Commission lacks the statutory power to promulgate rules for the temporary storage of spent nuclear fuel—at least in part because the court determined that the Atomic Energy Act didn’t clearly delegate such authority. But if the NRC isn’t authorized to provide for the temporary storage of nuclear waste, who is? (The court’s opinion doesn’t say.)
The upshot of these statutory holdings is not, as some of the court’s judges have insisted, to return power to Congress; it’s to frustrate federal regulation in general—because even a functioning Congress (to say nothing of the current one) would have neither the time nor the wherewithal to legislate with the amount of subject-matter specificity that the Fifth Circuit demands.
Throughout these decisions, the Fifth Circuit has shown a remarkable lack of regard for the Supreme Court—which not only keeps reversing it, but keeps granting emergency relief in cases in which the Fifth Circuit refused to do so, or vacating emergency relief that the Fifth Circuit agreed to provide. Take just three examples: After a federal judge blocked a controversial Texas law barring most content moderation by social-media providers, the Fifth Circuit unblocked it pending appeal, only to have the Supreme Court step in to put the law back on hold. Even though the Supreme Court’s intervention signaled that at least five justices were likely to side with the district court and conclude that the Texas law was unconstitutional, the Fifth Circuit went ahead and decided that the Texas law was kosher.
A similar story unfolded in the mifepristone case—where the Supreme Court issued a stay of Judge Matthew J. Kacsmaryk’s ruling (which would have massively limited nationwide access to the abortion pill), after the Fifth Circuit had refused to do so. Once again, the Supreme Court sent a pretty clear message that Kacsmaryk’s ruling was not likely to survive, but the Fifth Circuit affirmed it on the merits anyway. And just last month, the Fifth Circuit struck down the Biden administration’s rule limiting the distribution of “ghost guns,” even though the Supreme Court intervened twice earlier this summer to put the rule back into effect after the Fifth Circuit had blocked it. So far this term, the Supreme Court has granted emergency relief three times. Not only did all three of those cases come from the Fifth Circuit; in all three, the Fifth Circuit had gone the other way.
This disregard for the Supreme Court has the ironic effect of making the justices look more moderate. Last term, for example, the Supreme Court reversed the Fifth Circuit in seven of the nine cases it reviewed—the highest rate for any lower court in the country. A similar theme is likely to emerge from this term, in which as many as 20 percent of the cases the justices decide are likely to come from Louisiana, Mississippi, and Texas, and most are likely heading for reversal. The point is not that the Supreme Court is less ideologically extreme than its critics charge; it’s that the Court is less ideologically extreme than the Fifth Circuit. These days, that’s not saying all that much.
Even conservative scholars have started expressing alarm about these trends. In the November issue of the Harvard Law Review, the professors William Baude and Samuel Bray warned that “we have arrived, for the first time in our national history, at a state of affairs where almost every major presidential act is immediately frozen” by federal courts—most commonly in the Fifth Circuit—forcing the Supreme Court to step in at premature stages. In their words, “This is bad law and bad democracy. It cannot go on forever.”
But whereas conservative scholars have begun to raise concerns about these developments, the Supreme Court, which has not been shy about chastising misbehaving lower courts in the past, has thus far been mum. The lack of rebuke may explain why some Fifth Circuit judges are leaning into their newfound infamy. One of the court’s most visible judges, James Ho, regularly lectures law-school audiences about the importance of judicial “courage”—that judges shouldn’t shy away from unpopular opinions.
Ho’s not-so-subtle message is that criticism is actually evidence of good judicial rulings; in his world, there’s no such thing as bad publicity. But whether this is what these judges truly believe or just how they think they need to behave in order to have any shot at a Supreme Court nomination in a future Republican presidency, the bottom line is the same: The Fifth Circuit is the bull in the rule-of-law china shop—and it seems remarkably indifferent to what happens to public faith in the judiciary when it keeps breaking things.
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Stephen I. Vladeck
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