Justice Gorsuch and Net Neutrality

Credit: /u/Dunkizle
Credit: /u/Dunkizle

Nobody seems to have pointed this out yet, so I guess I might as well put something up quick.

President Trump is not a big fan of net neutrality, and his new FCC commissioner, Ajit Pai, is, uh… really not a fan. Mr. Pai is already working on rolling back the FCC’s net neutrality rules, which were passed under President Obama. Most conservatives agree with Trump. Judge Gorsuch, of course, is a conservative nominee appointed by an anti-net neutrality president. So the going assumption is that Gorsuch will hurt the cause of net neutrality if confirmed to the Supreme Court. That he will not protect the open internet.

This is a mistake.

“Net neutrality,” for those of you who have never read my gigantic posts about it, is the principle that internet service providers (such as Comcast) have to allow their users equal access to the entire Internet. Under net neutrality, Comcast can have its own video service that competes with YouTube, but it cannot block YouTube from its network to force you (the Comcast subscriber) to use the Comcast video service. Nor can it treat its videos differently from YouTube videos as they travel down the wire to your computer: you get both videos as fast as possible, based on whatever data rate you are paying for. Nor can Comcast force YouTube to pay extra to connect with its network. And so forth.

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Posted in Law, Politics | Tagged , , , , , | 1 Comment

The Bishop’s Lament: Apb. Chaput’s New Book

My review of Archbishop Charles Chaput’s new book, Strangers in a Strange Land: Living the Faith in a Post-Christian World, is up at The Federalist today.  Here is the link, and here is an excerpt:

Chaput repeatedly refers to the Supreme Court’s lawless decision in Obergefell v. Hodges as a watershed moment, but it seems clear from his litany of evils that the walls have been closing on American Catholics in for years. Obergefell was thus not a radical transformation of the American order, but the culmination of a culture that has been transforming for a long time now. After all, as Chaput writes, “Culture precedes and informs politics. And American culture has moved miles from the assumptions of the Founders.”

What Obergefell seems to have provided is clarity. “It can’t be like it was” anymore, Chaput laments. At one point, he favorably quotes Rod Dreher’s writing on the so-called “Benedict Option,” which sees Christians as besieged resistance cells in America. Chaput insists, like Chesterton’s Adam Wayne, that natural patriotism—love of the land that raised you—is a virtue. The love he still bears for his country, even as he mourns it, is obvious, and cuts a sharp contrast with anti-liberals like Ferrara. Yet Chaput’s anticipation of a “Dark Age” in America is a far cry from Archbishop Ireland calling America “liberty’s native home” and “the highest billow in humanity’s evolution.” Maybe I shouldn’t be so surprised, since the book is literally titled Strangers in a Strange Land, but the Archbishop of Philadelphia losing his faith in the American project seems like a watershed of its own.

It’s not as dark as all that, but it made for a good excerpt. It’s a pretty good book on the whole!  Read the whole review at The Federalist, or you can grab the book itself on Amazon.

Longtime readers of this blog will notice a little “easter egg”: in this review, I mention Christopher Ferrara’s Liberty: The God That Failed… which I also reviewed, on this blog, back in 2012 or something.  My review of Liberty: TGTF is here.

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Betsy DeVos is Not the Schoolpocalypse

The past few weeks, I’ve been forced to spend a lot of time playing the game “Not That Bad.”

The rules of this game are simple: President Trump implements a bad policy, makes a bad decision, or says a bad thing, which is worthy of condemnation. The Cathedral then reacts by describing that policy, decision, or quote in apocalyptic terms, becomes hysterical, and then questions not the wisdom of the policy but its very legitimacy–its legality, its authority, and its membership in the set of things that may be reasonably discussed by reasonable people. In most cases, this overreaction is (in my opinion as a hardcore Rule-of-Law guy) more dangerous to the American system of government than the actual bad things Trump is doing. So then I need to stand up and say, “Hey, guys, it’s Not That Bad,” explain why it’s Not That Bad, and then remember to still mention somewhere that it’s still bad, because the last thing I want is for people to think I’ve turned into a pro-Trumper (or even an anti-anti-Trumper).

This overreaction to Trump’s policies should not surprise me as much as it does, since we saw something similar in the right-wing fever swamps whenever Pres. Obama did… well, just about anything. Indeed, the birther controversy, which was exploited by our new President, rapidly devolved into nothing but a blanket assault on Pres. Obama’s legitimacy. However, the right-wing fever swamps do not control the commanding heights of culture the way, say, Joss Whedon does, so the Trump Freakouts are more dangerous than the Obama Freakouts. Besides, if the election taught me anything, it’s that I substantially underestimated the threat of Obama Freakouts (and the concomitant crisis of truth in conservatism), and should have done more to stand up against them at the time.

So, onto today’s Trump Freakout, about something that is Not That Bad.

Even after everything I’ve seen the past few weeks, I’m still taken aback by the amount of sturm und drang I’m seeing the confirmation of Betsy DeVos as Secretary of Education. A representative comment I just saw:

“This is great. Now I can feel secure my future children will be force-fed Creationism, even though I’m a Jew. And they can forego…let’s see…..math. Perfect.”

Another:

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Is Trump’s Immigration Order Legal?

I am not a fan of President Trump’s controversial Executive Order on immigration. I think it contains good provisions, such as prioritizing the resettlement of religious-minority refugees who are at the greatest risk of being killed in their homelands, and the global visa requirements review is a fine idea. However, I considered its chaotic rollout and broad application to green card and SIV-holders extremely reckless, and I think suspending the Syrian refugee program without first establishing an alternative is unconscionable. “America First” is good insofar as it recognizes that the primary responsibility of a nation is to its citizens (not the global community), but this must not descend into an amoral realpolitik that repudiates our secondary (but nevertheless real) responsibilities to do what we can to help the world’s most vulnerable non-citizens.

Let's be really clear here: this is a dry abstract legal post about an issue that impacts some very real, suffering people. Never forget that our immigration policy determines the fate of people like this young Syrian girl in Atmeh refugee camp. (Credit: Tom Pilston/Times of London)
Syrian girl in Atmeh refugee camp. Let’s be really clear here: this is a dry abstract post about an order that impacts concrete, suffering human beings. (Photo Credit: Tom Pilston/Times of London)

However, a great many people have already weighed in on the substance of Trump’s Executive Order, and I don’t have much to add to the global conversation. On the other hand, a friend asked me the other day whether Trump’s EO is legal, and I think that that discussion has been badly neglected by almost everyone.

Those who are talking about the law are largely talking nonsense. While protesters chant that the order is “unconstitutional” simply because it “advances prejudice” (as one Facebook commenter put it to me), a surprising amount of the discussion by the Great and Wise has revolved around loose comments by private citizen Rudy Giuliani about a so-called “Muslim ban,” which critics have tried to tie to the EO and thus to the Establishment Clause. Even if they succeeded in this, it’s a thin case against the EO’s legality, since potential immigrants (who are not persons under U.S. jurisdiction) have very few constitutional rights in the first place. In light of the fact that many of President Trump’s harshest critics positively applauded President Obama’s actually unconstitutional orders on immigration and health care, one suspects there may be some motivated thinking at work here.

Right-wing defenses of the EO, by contrast, have relied (in my opinion) far too heavily on the President’s constitutional foreign-affairs power, which does give the President broad authority to act in the national interest, but with the caveat that Congress can severely limit it by statute.

Congress has done just that. The legality of the EO is not primarily a constitutional issue, but a statutory one. The best attack on the EO so far, proposed by David Bier for the New York Times and expanded on by Patterico at RedState, revolves around the statutes in question, and attacks the EO solely on the basis of those statutes. My favorite Congressman, Justin Amash, has endorsed these attacks.

However, those attacks are mistaken. Solely on the basis of the statutes in question, it is clear that the EO is perfectly legal.

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Size of the March for Life

People’ve been arguing a lot about crowd size lately, and these arguments have now spilled over into debates about the size of the annual March for Life compared to the (truly enormous) size of the Women’s March on Washington. March for Life organizers and friendly press routinely claim the March for Life draws crowds well into the hundreds of thousands. Yesterday, President Trump himself argued, as many conservatives have, that the media ignores large crowds at the March for Life while heavily promoting large crowds at pro-abortion rights rallies like the Women’s March.

There is no doubt considerable truth to that. The March for Life is an annual comedy of news bias in which reporters routinely pay as much or more attention to a few dozen pro-choice counter-protesters than to the thousands and thousands of pro-lifers on the Mall… and that’s assuming they notice the March at all. Media crowd size estimates at the March for Life are routinely ridiculous lowballs (“hundreds”? seriously?). This despite the fact that the March for Life, even given conservative assumptions, is routinely the largest march on Washington of the year… and it happens every single year.

However, the crowd at the March for Life is almost certainly much smaller than the enormous (400,000+) estimates routinely given by its supporters. Let’s take a look.

Here’s a lovely image of the 2013 March (in their pre-March rally), courtesy of Iowans For Life:

CNS photo/Jonathan Ernst, Reuters (Jan. 25, 2013) (click for full size)
CNS photo/Jonathan Ernst, Reuters (Jan. 25, 2013) (click for full size)

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It’s Okay To Feel Okay

Alternate Title: “3,000 Self-Indulgent Words About My Feelings”

Improper anger as expressed by Arthur's clenched fist.
PICTURED: Improper feelings. (You can’t know how long I’ve waited for the right moment to get in on this particular meme.)

My wife and I learned different things about feelings when we were growing up. My wife was taught that, “Whatever feelings you’re feeling are okay.” (It was how you acted on your feelings that mattered.) Whether billowing anger or rapturous joy, she was raised to let those feelings happen, without self-criticism or external judgment, regardless of how they arose. Her job was to ride those feelings out and then make good choices.

I, on the other hand, was raised by two philosophy professors who were great fans of Thomas Aquinas. Although I don’t think anyone ever sat me down for a talk about “feelings,” it is not surprising that I ended up believing something rather different: emotions can be disordered, irrational, improper, and just plain wrong. We might not be directly responsible for our feelings—we can’t turn them on and off at will—but, if you’re looking at a mass grave and experiencing joy, there’s something wrong with you. Even if you go on to do the right thing (good for you), that emotion you felt was wrong, and you need to take steps to make sure that you don’t feel that way the next time you see a mass grave. To me, one of the signs of a fully developed human being is that he evolves beyond simply riding out disordered emotions; instead, he stops experiencing such emotions altogether.

So I was alarmed when I woke up the morning after Election Day and discovered that I felt… pretty good, actually!

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Will President Trump Get a Chance to Swing the Supreme Court?

Social Security Administration Graphical Life Table
If you zoom in far enough on this Social Security life table, it will tell you the exact date, time, and cause of your death.

For many of us, the most important issue at stake in last month’s election was the Supreme Court, where judges who primarily attempt to follow the Constitution’s text are currently outnumbered, 5-3, by judges who make other concerns the primary basis of their decisionmaking. This question has major policy implications, since textualism is totally incompatible with several key Supreme Court precedents made during the recent decades of anti-textualist supremacy — most notably the abortion rights guaranteed by Planned Parenthood v. Casey.

Once Trump enters office, he has promised to fill the late Justice Antonin Scalia’s chair with a fourth textualist, making the balance 5-4. Trump has also promised to ensure that any other vacancies are filled by constitutional textualists. (His opponent, Mrs. Clinton, promised litmus tests to ensure the exact opposite.) Whether Trump will keep that promise is a matter of some debate, which this post will not attempt to settle.

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Some Electoral College Silliness on the Left

This whole electoral college thing is getting weird.

A little while ago, I called on the electors to do their duty: when they vote for President on December 19th, they must vote for a person they consider qualified and fitting for the office — even if that means voting for someone other than the two major-party candidates. (I floated the name of Mike Pence. Though hardly my first choice, Pence is nearly unique among nationally-prominent American politicians today in having a positive net approval rating, but any well-qualified candidate who appeals to Republican electors would do.) I said that the right of electors to vote against their pledges to block demagogues from the Oval Office was truly “more than a right: it is a grave and difficult duty.”

At about the same time as I made my case, a bunch of people on the Left had the superficially similar but actually quite crazy idea of demanding that the electors vote for the winner of the national popular vote (that is, Hillary Clinton) instead of the popular vote in their respective states (where Donald Trump leads). This is a bad strategy for three reasons:

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I’m on the Malacast with Adam Mala!

Adam Mala of the Malacast reached out to me after reading my recent piece in The Federalist, and we had a nice phone interview last week about the electoral college.  You can listen to it here:

http://malacast.libsyn.com/interview-with-james-heaney

We had a good conversation, which ran about a half-hour.  I haven’t had a chance to listen to the final cut yet, but I enjoyed myself thoroughly.

I’ll give a little warning that, in live interviews, I am less circumspect than I am on the blog. You can’t check your facts, you can’t wait to decide the best way of saying something, so you just talk. The net result is that I let my right-winger flag fly a little more than I do here on the blog. Which was… kinda fun, actually!

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The Awesome Responsibility of the Electoral College

…was the original title of my article just published in The Federalist.  Check it out!  Here is an enticing excerpt:

If each of the 306 Republican electors truly believes, in his or her heart of hearts, that Trump is the best man for the job, that he is the American with the greatest “abilities and virtue, in whom the people perceive just grounds for confidence,” who has all “the qualities adapted to the station” of the presidency… in that case, by all means, they should cast their votes accordingly, and Trump will become, on December 19, president-elect of the United States.

But if there is doubt; if, after deliberation with fellow electors, it seems clear that there are Americans better suited to serve as commander-in-chief, then each elector who feels that way has both the right and the duty, as officers of the Constitution of the United States, to vote for somebody else.

That is the system our Constitution demands. It is not a theft. It is not an error. It is by design.

Those of you who have seen all the hard thinking I’ve done about electors in the past couple of weeks probably aren’t surprised it led to this, but I think I make a pretty good case.  Full article here.

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