Editorial Roundup: United States
Jan 23, 2024, 6:50 PM
Excerpts from recent editorials in the United States and abroad:
The Washington Post on SCOTUS, “Chevron deference”
To hear some describe the stakes, a pair of cases argued before the Supreme Court on Wednesday could create a watershed moment in American government. Business lobbies and conservative activists see an opportunity to restrain an out-of-control “administrative state.” Progressives fear the court will render the federal government incapable of responding to modern challenges from climate change to artificial intelligence.
At issue is a deceptively arcane matter: who gets to interpret the law when Congress leaves it ambiguous as it often does, sometimes inexcusably, but sometimes unavoidably. The current rule, called “Chevron deference” — after the 1984 case in which the court developed it — instructs judges to uphold challenged regulations as long as they reflect an agency’s “reasonable” reading of a genuinely ambiguous law.
Agencies, the logic goes, have more expertise and on-the-ground experience than judges and are more democratically accountable — albeit indirectly, through the elected president. Absent a Chevron-like doctrine enforcing a degree of judicial modesty, judges could fill gaps in the law according to policy considerations they are poorly equipped to evaluate.
Conservatives see this as an abdication of the judiciary’s power to “say what the law is,” its exclusive purview since Marbury v. Madison. They also see it as backdoor encouragement for sloppy statute writing. This is an updated conservative take on Chevron, to be sure. Initially praised by Justice Antonin Scalia, Chevron was a unanimous ruling to uphold a Reagan administration air pollution regulation that environmentalists considered too lax. During a long run of presidencies that, apart from Jimmy Carter’s four years, spanned the late 1960s to the early 1990s, Republicans controlled the White House and the agencies to which judges were deferring.
The distribution of power has shifted since then. With a mix of good luck and Senate GOP leader Mitch McConnell’s application of some hardball politics, Republicans can count on a conservative supermajority on the Supreme Court. Meanwhile, Democrats are winning more presidential elections, and their appointees have used executive powers to issue ambitious rules — on power plants, car emissions, financial markets, credit cards, airlines and so forth.
These political developments, as much as high-minded constitutional principle, explain conservatives’ objections to the doctrine and their broader effort to invigorate judicial supervision of the executive. Chevron or no Chevron, the court majority has already started doing just that, expounding principles such as the “major questions” doctrine to strike down agency actions. In West Virginia v. Environmental Protection Agency, the court rejected a greenhouse emissions program on the grounds that Congress could not have wanted the EPA to wield the hefty regulatory powers the agency claimed without saying so more clearly in the law.
During Wednesday’s oral arguments, Chief Justice John G. Roberts Jr. pointed out that the court has not relied on Chevron in years to defer to a federal agency’s interpretation of an ambiguous statute. Ditching Chevron deference would be just another move this court has taken to encourage judicial intervention in executive branch actions.
In time, however, conservatives might come to regret all of this. At their core, the cases the court heard Wednesday are about power — and, more specifically, whether a 40-year balance between the executive branch and the judiciary should be shifted. Long-term, who wins and who loses will depend on who controls these organs of government.
With the major-questions doctrine in place, courts already have more latitude to prevent liberal presidents from regulating ambitiously. By also pushing for Chevron’s destruction, conservatives run the risk that, when Republican administrations try to write weak regulations that arguably fall short of what Congress desired, future courts might not defer to them.
This risk rises as time goes on and the judiciary continues to evolve, at some point drifting back leftward. Progressives will ask judges to force federal agencies to, say, more aggressively enforce clean-air laws, substituting their own expansive view of the law for that of agencies that might be more cautious.
The moment calls for restraint from a court decreasingly interested in this virtue. Not because overturning Chevron would permanently hobble progressive governance but because doing so would be disruptive and unnecessary. Chevron’s underlying logic is sound: On balance, federal experts are better suited to filling gaps in the law than courts. Overturning Chevron, meanwhile, would spur advocates of all ideological stripes to bring countless new lawsuits before judges they believe will be sympathetic to their cause; they will have some 800 federal district court judges across the country from whom to choose.
The New York Times on campus free speech
Universities have always been a home for the world’s great arguments. Professors and students are supposed to debate the issues of the moment, gaining understanding of the other side’s views, refining and strengthening their positions, and learning how to solve problems. Argument thrives in a culture of openness, and maintaining that culture ought to be paramount for universities, as well as any institution that wants to shape public policy or debate.
There are many ways to stifle a culture of openness; in recent years, both the far left and the far right have shown a willingness to win arguments by silencing the other side. But the threat that Americans should be most concerned about is any attempt by government to limit the freedom of individuals to express their views or to dictate what they say.
That is what happened when Nathan Thrall, a writer on Israeli-Palestinian issues, was invited by the University of Arkansas to speak on the subject last year, and an ideological barrier imposed by the state government prevented him from joining that debate. Mr. Thrall, like everyone else who enters a business relationship to an arm of the Arkansas government, was required by state law, as stipulated by the contract for his speaking fee, to sign a pledge that he would not boycott Israel. He refused to do so, calling the requirement “McCarthyist” and an affront to his free-speech rights.
This meant that he was unable to share his perspective, informed by years of experience writing about the relationship between Israelis and Palestinians, at a time when students have a desperate need to understand the causes and effects of the war between Israel and Hamas in Gaza. The campus has lost many other speakers for the same reason, and students say they are missing out on the chance to hear a variety of voices.
“As the conflict rages in the Middle East and we attempt to make sense of it, we find our ability to listen to and learn from multiple perspectives and foster an informed conversation radically curtailed by the university’s interpretation of the statute,” one group of students and teachers wrote in a petition to remove the pledge.
The Arkansas regulation is part of a disturbing trend by state governments to silence speakers on subjects including race, gender, slavery and American history. The measures they have imposed restrict both academic freedom — the freedom to explore ideas and pursue research independently, without interference by the state — and freedom of expression more broadly.
Americans may disagree about boycotts as a matter of policy. (This editorial board doesn’t support boycotting Israel.) But as an act of protest, support for the boycott, divestment and sanctions movement falls clearly within the realm of free expression protected by the First Amendment. Arkansas and more than two dozen other states have enacted laws that prohibit state contractors from engaging in a boycott. These laws are abridging the speech of those individuals, groups and companies, and so represent a violation of their constitutional rights. In 1982, the Supreme Court unanimously agreed that nonviolent political boycotts were protected speech and could not be prohibited by government officials.
Several federal judges have made that point about the laws targeting Israel boycotts, and a few states have weakened their laws as a result.
“The certification that one is not engaged in a boycott of Israel is no different than requiring a person to espouse certain political beliefs or to engage in certain political associations,” wrote a U.S. District judge, Mark Cohen in 2021, striking down an anti-boycott statute in Georgia. “The Supreme Court has found similar requirements to be unconstitutional on their face.”
Unfortunately, the federal appeals court based in Atlanta chose not to overturn the Georgia statute last June, relying in part on a 2022 decision by another appeals court that the Arkansas anti-boycott statute was constitutional. That ruling was based on an unusually convoluted logic that said the law was intended to regulate commercial activity, not speech.
In fact, the law is entirely about religion and politics, not commerce, as its lead sponsor, State Senator Bart Hester, made clear to The Times last year, and it was clearly intended to restrict speech. Mr. Hester said he was glad the law blocked Mr. Thrall’s appearance. “Keeping someone who wants to come speak on behalf of terrorists off our college campuses is a win,” he said.
Last February, the Supreme Court declined to review the Arkansas ruling, leaving the anti-boycott law in place. The court has not explicitly ruled that anti-boycott laws are constitutional; in the absence of such a ruling, courts should strike down these laws as an unconstitutional use of state power to silence individuals and an infringement on free expression.
States are interfering with the right to speak and teach freely on other issues as well. At least 10 states are considering laws that impose severe restrictions on a teacher’s right to speak to students about the importance of diversity and inclusion, following in the footsteps of Florida’s “Stop WOKE” law. That law, which was signed by Gov. Ron DeSantis in 2022 and was expanded last year, makes it illegal for educators to say out loud in the classroom that they support the principles of affirmative action, or that American history is full of racist episodes, or that systemic racism has played a role in the institutions and economy of the country.
A U.S. district judge based in Tallahassee, Mark Walker, struck down the key provisions of the law as “positively dystopian” and unconstitutional as applied to higher education. “Striking at the heart of ‘open-mindedness and critical inquiry,’ the State of Florida has taken over the ‘marketplace of ideas’ to suppress disfavored viewpoints and limit where professors may shine their light,” he wrote, adding, “The First Amendment does not permit the State of Florida to muzzle its university professors, impose its own orthodoxy of viewpoints, and cast us all into the dark.”
A federal appeals court has agreed with Judge Walker, blocking enforcement of the law, but that hasn’t stopped other states from trying the same thing, hoping to get a different reaction from their federal courts.
Often, conservative lawmakers are responding to similar impulses on the left, which is more likely to use the tools of media, entertainment and academia rather than the law to shape public discussion. So while a vast majority of these current efforts come from lawmakers on the right, Americans should be as wary of efforts on the left to control what people can think or debate.
California’s community college system recently decided to dictate to its professors a set of anti-racist principles to teach to their students. The college system leadership said that the instructors — all state employees — would be judged on whether they acknowledge “that cultural and social identities are diverse, fluid and intersectional,” and would have to demonstrate “an ongoing awareness and recognition of racial, social and cultural identities with fluency regarding their relevance in creating structures of oppression and marginalization.”
Recruiting a diverse staff of educators and giving students an opportunity to learn about a wide range of cultures and societies are important goals. And some universities, such as the State University of New York, have adopted policies that allow much more freedom to students and administrators to fulfill those goals as they see fit. But as a recent PEN America report put it, referring to diversity, equity and inclusion efforts, “There is a difference between protecting a school’s or faculty member’s right to include D.E.I. programming, and mandating that they do so, especially in higher education.” The report called the California mandate “one of the most censorious educational gag orders we have seen.”
Some higher education institutions have required new employees to sign statements supporting their personal commitments to D.E.I. principles, a litmus test that could have the effect of creating a uniform campus culture without a variety of viewpoints. One 2021 survey found that 19 percent of college jobs required these statements. Last year, The Times wrote about a noted psychology professor (and affirmative-action supporter) who lost a chance to teach at U.C.L.A. because he disagreed with the usefulness of required diversity statements, calling them “value signaling.”
At Ohio State University, several departments would not hire professors unless they “demonstrated commitments and leadership in contribution to diversity, equity and inclusion through research, teaching, mentoring, and/or outreach and engagement.” After protests by free-speech groups, including the Foundation for Individual Rights and Expression, Ohio State said it would stop requiring these statements.
It would be easy to dismiss all of these rules and restrictions as a political tit for tat. But Americans should recognize what is happening as an escalation. Years of policing speech on college campuses, in the name of sensitivity, are now having unintended consequences. There is an “an imbalance around free speech on college campuses,” as the Harvard professor Ryan Enos told Michelle Goldberg of The Times. Many who point this out “are not doing it to stand up for free speech; they’re just doing it because they want to shut down speech they disagree with.”
The censoriousness at the heart of all these policies ought to concern all Americans.
The Wall Street Journal on Bernie Sanders and Big Pharma CEOs
Socialists love nothing more than an old-fashioned show trial. Witness Bernie Sanders’s announcement last week that he’ll subpoena the CEOs of drug makers that have challenged the Inflation Reduction Act’s (IRA) price controls.
It’s a rite of passage these days for CEOs to get hauled before Congress. But the purpose of Congressional hearings is to conduct oversight and inform legislation, not punish government opponents. The latter is what the Vermont Senator is doing as chairman of the Senate Health, Education, Labor and Pensions Committee.
Mr. Sanders last Thursday announced a committee vote on Jan. 31 to subpoena the CEOs of Johnson & Johnson and Merck to testify about the “outrageously high price of prescription drugs.” This would be the first time the committee subpoenas private individuals. Committee staff typically negotiate the terms of executive appearances with companies.
Mr. Sanders doesn’t want to negotiate, or conduct actual oversight. He wants to keelhaul the CEOs as punishment for suing the government. The CEOs don’t have particular knowledge about how their drugs are priced in foreign countries—the ostensible subject of Mr. Sanders’s hearing—but both companies have offered to send executives who do.
An attorney for J&J wrote in a Jan. 12 letter to Mr. Sanders that the company has tried to cooperate with the committee. However, “your staff and your public comments have indicated” that the hearing is intended to target “the companies that pursued litigation challenging certain aspects” of the IRA.
Conscripting the CEOs of select companies challenging the law “seems unlikely to be coincidental,” the letter says. “And it raises significant concerns that the hearing is intended as retribution for the companies’ decisions to exercise their rights to challenge a statute that inappropriately infringes on constitutionally protected freedoms.”
The two drug makers argue in their lawsuits that the IRA exacts an uncompensated taking of their property. If a drugmaker refuses to sign an “agreement” to “negotiate” a drug’s price—or rejects what the government deems a “maximum fair price”—it must pay an excise tax that escalates to 1,900% of the drug’s daily revenue. This is effectively extortion.
Their lawsuits also contend that the IRA violates their speech rights by compelling them to endorse the false narrative that they are participating in a “negotiation” that results in a “fair” price. Lower courts are expected to rule on the lawsuits in the coming months, and appeals could reach the Supreme Court. Is Mr. Sanders afraid the government will lose?
His plan to subpoena the CEOs is another display of unconstitutional government coercion, which the J&J letter argues would “exceed Congress’s authority under applicable Supreme Court precedent.” In Watkins v. U.S. (1957), the Court held that congressional investigations conducted solely “to ‘punish’ those investigated are indefensible.”
It’s also rich that Mr. Sanders is trying to compel the CEOs’ public testimony while the Biden Administration conducts its sham negotiations behind closed doors. The Health and Human Services Department has threatened drug makers with antitrust litigation if they discuss their negotiations. As the left likes to say, democracy dies in darkness.
China Daily on U.S. Department of Defense, EV batteries and China
In yet another move to decouple from China, US lawmakers have banned the Defense Department from buying electric vehicle batteries produced by China’s biggest battery manufacturers on the grounds they pose “national security risks”.
The move comes as part of the US National Defense Authorization Act passed on Dec 22, which prevents the Pentagon procuring batteries from CATL, BYD and four other Chinese companies beginning October 2027.
The impact of the restrictive measure will likely be limited given that it is still several years before the ban takes effect. In addition, it doesn’t extend to commercial purchases by companies such as Ford Motor Company, which is licensing technology from CATL to manufacture electric vehicle batteries in Michigan. Yet the move is reflective of the hysteria now prevailing among some US hawks who seek to crack down on Chinese high-tech companies even at the expense of the US.
China now plays an important role in the global EV battery supply chain, accounting for more than 75 percent of battery cell production, mainly thanks to the innovative efforts of Chinese companies that enable them to make quality batteries in large quantities at a low cost. Take for instance the LFP batteries that Ford’s new plant will make. The batteries cost less, have a longer life cycle, and are safer compared with other EV battery alternatives. It is thanks to CATL’s long-term research that this once-considered obsolete technology has come to the fore.
It is believed that the US is already lagging “10 to 20 years behind Asia in commercialization of battery technology.” Yet rather than seeking win-win cooperation with China in the sector that will determine the future of the energy transition, some US politicians have sought to politicize the issue, by unveiling rules aimed at keeping Chinese components out of EVs sold in the US.
Congress last year already passed a climate law offering billions of dollars in tax incentives to try to boost the EV industry in the US, but barring cars from qualifying for the full tax break if critical minerals or other battery components have been made by a “foreign entity of concern”, namely China.
History proves that China and the US stand to gain from cooperation and lose from confrontation. The meeting of the Sino-US Financial Working Group, which concluded in Beijing on the weekend, and the seventh meeting of the China-US Agricultural Cooperation Joint Committee held in Washington last week, indicate that the trend of easing tensions between the two countries still continues, and will not be easily reversed by disruptive moves such as that to curb China’s EV industry boom.
The Guardian on protecting journalists — and freedom of the press — in Gaza
No war has killed so many journalists so quickly. The Committee to Protect Journalists (CPJ) says that at least 83 media workers have died since 7 October. Seventy-six of them were Palestinians killed in Israeli strikes in Gaza, while three Lebanese citizens were also killed, and four Israelis were killed by Hamas in the 7 October attacks.
Even given the total number of deaths in Gaza – at least 24,600, the Palestinian authorities say – the media toll is shocking and disproportionate. On one estimate, it amounts to a tenth of all journalists there compared with a reported one in 100 of the overall population. Reporters Without Borders has warned that journalism is “being eradicated in the Gaza Strip”. Chillingly, the CPJ describes “an apparent pattern of targeting of journalists and their families” – including at least two cases where journalists reported threats from Israeli officials and Israel Defense Forces (IDF) officers before family members were killed.
Though the IDF say they do not target journalists, it has been established that they have killed people clearly identified as members of the press, and that they have a record of false claims about and impunity for the deaths of media professionals. Prior to the war, a CPJ report found that 20 journalists had been killed by Israeli military fire in 22 years without anyone being held accountable. They included the renowned Palestinian-American reporter Shireen Abu Akleh.
Reuters says its journalist Issam Abdallah was killed by an Israeli tank shell in Lebanon in October, in an attack which Agence France Press described as “deliberate and targeted”, and which Amnesty International and Human Rights Watch want investigated as a possible war crime. In another case, the IDF said they were targeting a “terrorist” using a drone when they killed two journalists in a car, before suggesting that the men had looked like terrorists because they had a camera drone.
Attacks on journalists are not only attacks on civilians, as grave as those are. They also strike at the truth itself: at the ability to establish it, and to share it. International news organisations have been able to access Gaza only extremely briefly and under tight restrictions, all but one embedded with the IDF. Those who live there are the eyes of the world.
Beyond the risk of death, says the CPJ, Palestinian journalists have experienced “arrests … numerous assaults, threats, cyber-attacks and censorship”. Nineteen are in prison – putting Israel on the organisation’s list of the worst jailers of journalists for the first time, alongside China, Myanmar, Russia and Iran. Most are held under “administrative detention”, which allows the Israeli military to detain people in the occupied territories without trial or time limit.
The secretary of state, Antony Blinken, has said that the US stands “unequivocally for the protection of journalists during armed conflict”. It should act accordingly, holding Israel accountable for deaths and infringements of press freedom, as several groups urged in a letter to Joe Biden last week. The US, the UK and others should also press Israel to allow proper access for international media.
Reporters in Gaza who have been injured themselves, and who have suffered devastating personal loss, have been swift to return to work to tell the world what is happening to others. They do not want to be the story. But when so many are dying, it is essential to ask why – and to make clear that the carnage must not continue.