Editorial Roundup: United States
Jul 6, 2022, 7:58 AM | Updated: 8:10 am
Excerpts from recent editorials in the United States and abroad:
The Washington Post says that, after the abortion ruling, digital privacy is more important than ever
In the 21st century, our phones might know we are pregnant before the people closest to us do — a reality that, with the overturning of Roe v. Wade, has become more dangerous than ever.
Digital-privacy advocates have long warned about the amount of our personal information that companies hoover up each day. Reproductive health data has never been an exception, but while this data has always been valuable to advertisers, now it will also be valuable to law enforcement in states where abortion is criminalized. Naturally, niche apps such as period trackers hold troves of knowledge about when people are or could be expecting, but so do services as widely used as Google, Apple and Facebook: Search histories, for instance, can reveal queries about nearby clinics; location tracking can show whether someone has actually taken the trip.
The vast majority of proposed laws in states likely to impose heightened abortion restrictions focus on punishing providers rather than patients. But patients’ data could be used to prosecute providers, and of course providers use the internet, too. Some laws also do explicitly punish women for ending their pregnancies, or leave open the possibility that a zealous prosecutor could seek to do so. This isn’t a hypothetical guess of a grim future; it has happened already, even with constitutional protections in place. One advocacy organization counts 1,800 cases from 1973 to 2020 of women seeking to terminate their pregnancies who were prosecuted or targeted for interventions.
Digital footprints can be a boon in such cases. Look at the Black mother of three in Mississippi who was charged with second-degree murder after a stillbirth when investigators scraped her phone and found search terms for the abortion pills mifepristone and misoprostol. She was held for weeks on a $100,000 bond; eventually a grand jury was called in and refused to indict her.
Technology companies can help by refusing to comply with requests for data that they believe are unlawful. More important, they can collect less of this sort of information in the first place. Congress can help even more by setting rules that require precisely that step. Some members have already introduced legislation devoted to protecting reproductive health data. Though passing them might be impossible given the lack of Republican support, lawmakers should seek to include a provision specifically protecting this information in the larger bipartisan, bicameral privacy bill moving through Capitol Hill. The White House, meanwhile, is reportedly preparing a letter to send to the Federal Trade Commission urging the agency to bar unfair and deceptive practices in this area.
Women across the country are already deleting reproductive health apps from their devices. They’re preparing to hide their identities as they search the web for resources, and to ensure any sensitive communications are encrypted. The burden shouldn’t be on them to protect themselves now that their right to choose is imperiled.
The New York Times says SCOTUS’s recent EPA ruling is a blow to both the public interest and democracy
On Thursday, the Supreme Court’s conservative majority, with its 6-3 ruling in the case of West Virginia v. Environmental Protection Agency, curtailed the power of the agency to protect the environment, and specifically to require the reductions in emissions that are urgently necessary to limit global warming.
The court’s ruling constrains any effort to tighten restrictions on carbon dioxide emissions from power plants. It also threatens the Biden administration’s ability to impose new limits on tailpipe emissions from cars and trucks and on methane emissions from oil and gas facilities. As the three members of the court’s liberal minority wrote in a stinging dissent, the majority’s decision strips the EPA of the power “to respond to the most pressing environmental challenge of our time.”
The Biden administration, already struggling to persuade Congress to invest in renewable energy and compelled by Russia’s invasion of Ukraine to push for increased production of fossil fuels, once again finds its ambitious goals for confronting climate change slipping beyond reach. The court’s adversarial posture means that the administration must double down on its efforts to win congressional support for its spending plans. President Biden and Democratic leaders should also press to pass legislation clarifying the EPA’s authority to regulate emissions.
Thursday’s ruling also has consequences far beyond environmental regulation. It threatens the ability of federal agencies to issue rules of any kind, including the regulations that ensure the safety of food, medicines and other consumer products, that protect workers from injuries and that prevent financial panics.
In 1984, an earlier generation of conservative Supreme Court justices formalized a doctrine of deference to the judgment of regulatory agencies, modestly concluding that judges were neither experts nor elected officials, and therefore ought to leave such decisions in other hands. In Thursday’s decision, the court asserted that the policy of deference applies only to supposedly unimportant regulations. When it comes to “major questions” of regulatory policy, the court said, it would not hesitate to second-guess regulators — and to strike rules that it decided did not have a clear congressional warrant.
The decision amounts to a warning shot across the bow of the administrative state. The court’s current conservative majority, engaged in a counterrevolution against the norms of American society, is seeking to curtail the efforts of federal regulators to protect the public’s health and safety. The court already invoked a similar logic during the COVID pandemic to strike down workplace COVID testing requirements and a federal moratorium on evictions. And by refraining from defining a threshold for what constitutes a “major question,” the court is leaving a sword hanging over every new rule.
The West Virginia case has its origins in 2015, when the EPA imposed new limits on carbon dioxide emissions from coal-fired power plants. The agency determined that it was impossible for those plants to reduce emissions to what it regarded as a safe level while producing the same amount of electricity. Burning coal is simply too dirty. Accordingly, it directed companies to cut emissions by reducing output or by shifting to other forms of power generation.
The rule never took effect. The court stayed its implementation in 2016, and the Trump administration withdrew it in 2019. But the litigants, including the states of West Virginia and North Dakota and a pair of coal companies, pressed ahead with a lawsuit to make sure the rule stayed dead.
Chief Justice John Roberts, writing for the majority, agreed with their claim that the EPA did not have the authority to require companies to shift resources to other kinds of power generation. Mr. Roberts wrote that the court’s longstanding policy in such cases of deference to the agency’s own assessment of its authority did not apply because the stakes were too high. It is a theory long championed by Justice Neil Gorsuch, who explained in a concurring opinion that “administrative agencies must be able to point to ‘clear congressional authorization’ when they claim the power to make decisions of vast ‘economic and political significance.'”
The EPA clearly has the legal authority to set an acceptable standard for emissions, in this case of carbon dioxide, and then to impose restrictions on emitters, in this case coal-fired power plants. The court did not contest these facts. Instead, it ruled that the Clean Air Act does not provide the EPA with sufficient authority to achieve those emissions standards.
Chief Justice Roberts described this conclusion as a defense of congressional authority — an assertion of the primacy of elected officials. But constraining the power of regulatory agencies should not be understood as a shift in the locus of decision-making; rather, it effectively prevents good decisions from being made.
Congress has decided, and with good reason, that regulatory agencies staffed by experts are the best available mechanism for a representative democracy to make decisions in areas of technical complexity. The EPA is the entity that Congress relies upon to figure out how clean the air should be, and how to get there. Asserting that it lacks the power to perform its basic responsibilities is simply sabotage.
It is a telling fact that power producers, in response to market forces, have achieved the shift to cleaner energy that the EPA sought to require in 2015, validating the agency’s assessment of what it could reasonably mandate.
Chief Justice Roberts’s predecessors recognized their own limitations. In the 1984 ruling that formalized the court’s policy of regulatory deference, Justice John Paul Stevens wrote that “judges are not experts in the field and are not part of either political branch of the government.” Both points are important. The court lacks technical expertise and an electoral mandate. Thursday’s decision asserting a more muscular role is thus a blow to both the public interest and democracy.
The Wall Street Journal says SCOTUS’s unanimous ruling is a victory for liberty
The Supreme Court set off political fireworks this year with divided opinions on gun rights, abortion, religious liberty and more. So it’s worth highlighting the Court’s unanimous June decision that reinforces a core tenet of the U.S. legal system (Ruan v. U.S.)
Two doctors were charged with violating the Controlled Substances Act for allegedly dispensing opioids illegally. The law makes it a federal crime “for any person knowingly or intentionally . . . to manufacture, distribute, or dispense” a controlled substance, except as authorized.
Prosecutors accused Xiulu Ruan of running a pill mill in Alabama that issued nearly 300,000 prescriptions for controlled substances including opioids and benzodiazepines in four years, and Shakeel Kahn of writing prescriptions in exchange for payments. The government argued that the doctors dispensed drugs outside what a “reasonable” doctor would consider proper medical practice.
The doctors argued in defense that they had dispensed the drugs as they believed they were authorized to do under the law. Yet the government claimed that a requirement of scienter–that is, the intent or knowledge of wrongdoing–would make it too hard to convict errant doctors. Lower courts dispensed with this requirement in their jury instructions.
Both doctors were convicted and sentenced to more than two decades in prison. In their appeal, they argued that the government should have been required to prove mens rea–that is, a guilty mind. The Supreme Court ruled unanimously for the doctors.
Writing for the majority, Justice Stephen Breyer notes that the “Government’s standard would turn a defendant’s criminal liability on the mental state of a hypothetical ‘reasonable’ doctor, rather than on the mental state of the defendant himself or herself,” adding that the regulatory language defining an authorized prescription is “ambiguous” and “open to varying constructions.”
“The Government argues that requiring it to prove that a doctor knowingly or intentionally acted not as authorized will allow bad-apple doctors to escape liability by claiming idiosyncratic views about their prescribing authority,” Justice Breyer writes; “this kind of argument, however, can be made in many cases imposing scienter requirements, and we have often rejected it.”
Justice Samuel Alito, in a concurrence joined by Justices Clarence Thomas and Amy Coney Barrett, agreed to vacate the convictions. But he wrote that under the language of the law the doctors should have been allowed to make a good-faith defense rather than require the government to prove beyond a reasonable doubt that the defendants knowingly or intentionally acted in an unauthorized manner.
By slapping down the government, the Court is sending a powerful message to prosecutors who often charge unsympathetic defendants with insufficient evidence to prove the accused knew what they were doing was wrong. The ruling could affect prosecutions of opioid distributors and retailers, but the principle applies to other crimes such as fraud.
Despite their ideological differences, the nine Justices agree that the government must prove a defendant knew he was committing a crime. This is crucial to defending against unjust prosecution, and the ruling is a victory for liberty.
The Los Angeles Times claims that it is American guns, and the national paralysis to defend against them, that threaten the nation.
There is nothing as repulsively but thoroughly American as a deadly mass shooting with a high-powered rifle at a joyous parade celebrating the nation’s independence.
The Fourth of July shooter in the suburban Illinois city of Highland Park, north of Chicago, picked off what at last count were more than 50 people, killing at least seven. He reportedly did it with a lawfully purchased AR-15-style weapon, the kind of gun a federal judge in California a year ago described approvingly as “a perfect combination of home defense weapon and homeland defense equipment,” in much the same way as a Swiss army knife is good “for both home and battle.” The judge’s ruling was, thankfully, overturned by an appeals court.
It is a fact that the U.S. is armed for battle and that the homeland is threatened, but the assailant is neither an abusive king nor a foreign enemy. Americans have taken up weapons of war against their neighbors. We have become our most deadly enemies, turning our own Constitution — or rather, particular interpretations of it — into a weapon to undermine the very things it was meant to protect, including (in the words of the 2nd Amendment) the security of a free state.
The result is that we will never again hear the bang of Fourth of July fireworks without a jolt of fear that the sound might actually be gunshots fired from a rooftop. Weapons of war have made us similarly insecure and unfree at grocery stores, as in Buffalo, N.Y., less than six weeks ago, or elementary schools as in Uvalde, Texas, even more recently, or at festivals, nightclubs, churches, synagogues, college campuses and everywhere else.
This string of mass shootings is America’s parade of horribles — not merely the multiple hate killings that target people for their race, religion or sex, or the more mystifying killings committed by people with no obvious motive other than rage, but what comes after. Thoughts and prayers, reprimands and tears, and utter failure to limit access to weapons of war.
This can hardly be what the framers had in mind when they sought to protect the right of the people to form well-regulated militias for the common defense.
Sadly, it is not merely semiautomatic weapons that we have turned on each other, or planned mass shootings that are killing us. Independence Day was observed from coast to coast with shootings, many committed with handguns of the sort that the Supreme Court recently ruled cannot be broadly restricted outside the home. There were Fourth of July shootings at or near holiday celebrations in Los Angeles; Sacramento; Galt, Calif.; New York; Kansas City, Mo.; Richmond, Va.; Haltom City, Texas; Kenosha, Wis.; Indianapolis; Minneapolis; Philadelphia; and probably other towns and cities as well.
More than foreign rockets’ red glare or bombs bursting in air, it is American guns, and the national paralysis to defend against them, that threaten the nation.
The Guardian says that Biden’s climate agenda is at risk due to market disruptions caused by Russia’s war in Ukraine
Joe Biden’s trip to Saudi Arabia this month highlights the paradox of American power. The U.S. has the economic heft to punish an opponent – but not enough to alter the behavior of a determined adversary. Sanctions will see Russia’s economy contract by 9% next year. But Washington needs more nations to join its camp to halt Moscow’s brutal invasion of Ukraine. Mr. Biden has been forced to prioritize war objectives over ethics in meeting Crown Prince Mohammed bin Salman, who the CIA says ordered the barbaric murder of the prominent journalist Jamal Khashoggi.
The havoc that Russia’s war has caused on the world’s energy markets is contributing to an economic crisis that is playing into the hands of Mr. Biden’s domestic opponents. This highlights the west’s failure to confront the climate emergency with a less carbon-intensive economic model. The green agenda risks being derailed by sky-high hydrocarbon prices. This scenario could have been averted if western nations had accelerated their net zero agendas by driving down energy demand – the lack of U.K. home insulation is one glaring failure – and spending on renewables to achieve energy security. Instead, this week the G7 watered down pledges to halt fossil fuel investment over fears of winter energy shortages as Moscow squeezes supplies.
Boycotts and bans against Russia, even as they take a toll on the global economy, will cause ordinary Russians hardship. But this has not moved Vladimir Putin. Soaring crude prices fuel Moscow’s war machine. A price cap on Russia’s petroleum exports might choke off the cash. But a concern is that China and India will buy Mr. Putin’s oil at a price that still lets the Kremlin profit. Clever technical solutions mask hard choices. Sanctions drive up energy prices for consumers unless there are alternative supplies available. Right now, to bring down oil prices means producing more planet-destroying energy. That requires U.S. engagement with Saudi Arabia and the United Arab Emirates, both of which bear responsibility for the disastrous Yemen war. Washington might have to woo Venezuela and Iran, nations which will play Moscow off against the west.
The U.S. is pursuing a three-pronged strategy: increasing pressure on Russia; getting more oil into markets to bring prices down; and allowing central banks to raise interest rates to levels that look as if they might cause a recession. The latter is designed to signal to oil producers that energy prices will collapse. The painful recessions of the 1970s and early 1980s played a part in bringing down oil prices after energy shocks – and contributed to the Soviet Union’s disintegration. But this took 15 years. Mr. Putin’s Russia may not be as powerful as its forerunner. It might be more brittle than the Soviet Union. But there are few signs of imminent collapse.
As the west seeks to reduce its reliance on Russian hydrocarbons, there seems to be a global “gold rush” for new fossil fuel projects defended as temporary supply measures. The risk, with the U.S. as the largest hydrocarbon producer, is that the world becomes locked into an irreversible climate catastrophe. Europe might become as reliant on U.S. gas as it once was on Russian gas. Donald Trump proved America could be an unreliable ally. Rightwing supreme court justices have hobbled Mr. Biden’s power to limit harmful emissions. Meanwhile, China has emerged as a world leader in renewable energy as well as the metals on which it depends. Mr. Biden had wanted to transition the U.S. away from oil. Yet during his time in office the sector’s market value has doubled because prices have risen. Jarringly, as the climate emergency grows ever more urgent, fossil fuel appears the pivot on which the war in Ukraine will turn.
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