No Sift for the next two weeks. New articles will appear September 29.
Judges in the trenches need, and deserve, well-reasoned, bright-line guidance. Too often today, sweeping [Supreme Court] rulings arrive with breathtaking speed but minimal explanation, stripped of the rigor that full briefing and argument provide.
This week's featured posts are "Will the courts hold the line?" and "The Democrats' Shutdown Strategy".
Ongoing stories
- Trump's assault on American democracy. Fresh off a rebuke from a California judge about the meaning of the Posse Comitatus Act, Trump seems ready to send troops to Chicago.
- Climate change. Windmills have not had this persistent an enemy since Don Quixote.
- Gaza. Israel's defense minister issued a "final warning" to Hamas: release the remaining hostages and lay down your weapons "or Gaza will be destroyed, and you will be annihilated."
- Ukraine. We've been hearing all summer that Putin was winning the war and Ukraine's military was on the brink of collapse. But the summer offensive is all but over, and Russia has gained very little ground.
This week's developments
Trump's legal defeats
These are covered in one of the featured posts.
Epstein is back in the headlines
The whole point of starting Congress' August recess sooner was to avoid voting on legislation to release the Epstein files. By September, Speaker Johnson figured, the whole thing would have died down.
Well, apparently not. Congress is back in session and the Epstein files are still a thing.
Early on, I wrote off the Epstein controversy as a Q-anon-related conspiracy theory (which it contributed to), so I didn't pay attention to it. As a result, I completely misrepresented it when I first mentioned it here. (Commenters called me out for that, and they were right.)
For my sins, I watched the complete two-hour rally and press conference that Epstein survivors held Wednesday. I recommend it. It's not an easy story to hear, and the victims' stories get a little repetitive, but that's sort of the point: This happened over and over again; it was reported to authorities over and over again; and nothing was done.
What happened over and over was that some attractive and impressionable 14-year-old was invited to come to Epstein's mansion either with the offer of easy money ($200 to give some old guy a massage), help launching a modelling career, or immigration to the United States. That intro turned into sexual exploitation that was difficult to escape, sometimes for years.
The purpose of the rally was to try to get two more Republicans to sign Rep. Thomas Massie (R-KY)'s discharge petition that will force a vote on legislation demanding release of all federal files on Epstein. (Marjorie Taylor Greene, Nancy Mace, and Lauren Boebert are the other Republicans on board. If you're uncomfortable being on the same side they are, join the club.) That effort seems to be failing, but the petition might succeed anyway after a few more Democrats fill vacancies by winning special elections later this year.
Opposing this bill looks terrible for congressional Republicans: They're siding with sexual predators against their victims. You know that most of them must want to vote for it, at the very least just to avoid criticism. The only reason they don't is pressure from Trump. Which leads to an obvious question: What in those files is so bad for Trump that he would torpedo his own party like this?
Declaring War on Chicago
That looks like a fake post some satirist made up, but it's real. Our president put it out on social media on Saturday.
The previous Tuesday, Illinois Governor Pritzker had given a second speech [transcript, video] challenging the basis for Trump's planned invasion: It's not about crime and it's not about immigration. There are proven violence-reduction programs that Trump cut, and even with majorities in Congress he has offered no plan to fix the immigration system.
Chicago has a
comprehensive evidence-based approach to crime: hiring more police officers and giving them more funding, gun and drug and gang interdiction, investing in community violence intervention, mental health supports, more substance use treatment. Those programs have shown real progress.
Then you know what happened? Donald Trump and his Republican allies in Congress cut those programs because they are unserious people who seem to know nothing about fighting crime.
Pritzker has pledged to go to court immediately if troops show up in Chicago. From previous court rulings, I think I know how that case will go. Requests for injunctions to stop Trump from sending in the National Guard have failed, because Congress really did delegate that power by law. But the next question is what those troops can do once they get somewhere: They can't do law enforcement, because that violates the Posse Comitatus Act. Here's the conclusion Judge Charles Breyer came to in the California lawsuit:
For the foregoing reasons, the Court ORDERS that Defendants are enjoined from deploying, ordering, instructing, training, or using the National Guard currently deployed in California, and any military troops heretofore deployed in California, to execute the laws, including but not limited to engaging in arrests, apprehensions, searches, seizures, security patrols, traffic control, crowd control, riot control, evidence collection, interrogation, or acting as informants, unless and until Defendants satisfy the requirements of a valid constitutional or statutory exception, as defined herein, to the Posse Comitatus Act.
The California injunction is stayed pending appeal, and doesn't apply to Chicago or DC anyway. But the same principles hold once they are put before a judge: Nobody can stop Trump from sending troops to Chicago or anywhere else. But legally, they can't do much once they get there.
Washington DC has also filed a lawsuit challenging Trump's occupation of the city. They will win.
Something I don't hear discussed often enough: Why would anybody expect a temporary military presence to resolve the crime problem in a major city?
Sure: muggers, carjackers, and the like might lie low while troops are patrolling the streets. But what long-term problem is getting solved? Or are the troops themselves the long-term solution, because they stay forever?
The only way any of this makes sense is if you believe the Trump myth that big-city crime is due to undocumented immigrants. In that fantasy world, ICE could deport the whole criminal class during the occupation, leaving a crime-free city at the end.
But if crime is the result of poverty, hopelessness, poor education, drug addiction, mental illness, and the lack of legal opportunities, then it will spring back up as soon as the troops leave.
the Navy attack on a drug-smuggling boat
Tuesday, a US Navy aircraft destroyed a boat that the Trump administration claims was smuggling drugs into the US and was operated by the Venezuelan gang Tren de Aragua. Eleven people, alleged gang members, were killed.
I was skeptical of these kinds of attacks when Obama did them, so you can predict my position on this. But even more interesting is the view of Benjamin Wittes, founder of the Lawfare blog, who has long been a defender of "targeted strikes against enemy individuals or small groups". This strike, though, is "not what I signed up for".
Wittes makes three distinctions between this strike, and, say, the Obama drone attack that killed Anwar Al-Aulaqi (the very one I was complaining about in the link above). First is legality:
The first and most important difference is that those past strikes targeted people genuinely believed to be operational figures in terrorist groups who were at least plausibly covered by a congressional authorization to use military force, which was worded broadly to cover a broad range of worldwide operations.
Second, there were alternatives to deadly force:
When you’re dealing with one small boat heading to one’s own territory in international waters and the United States Coast Guard is available, there are plenty of options short of blowing up that boat. ... [T]he United States targeted with lethal force people it believed to be civilian drug traffickers and acknowledged that it could have stopped them. This would be illegal for cops. And it should be unthinkable for the military too.
And finally, this just isn't a military problem.
Cartel and gang members are not combatants in an armed conflict against the United States. And unless they are engaged in an ongoing or imminent military attack against the United States, it simply isn’t self-defense to attack them with lethal force either.
The question I always come back to is: What stops the President from calling in an airstrike on me? It seems like the restrictions on presidential killings are getting thinner and thinner. Ron Filipkowski expresses a similar view:
So if you are out on a boat Trump can just blow you up and kill you and everyone on board by saying you had drugs without presenting any proof? That’s how this works now?
RFK Jr. and the larger attack on science
The HHS Secretary testified for three hours before the Senate Finance Committee Thursday. The hearings came just a week after Kennedy was responsible for decapitating the CDC: The Trump-appointed head was fired and three other high-ranking officials resigned, largely due to Kennedy's moves to restrict access to vaccines, relying on cranks and conspiracy theorists rather than the scientists of the CDC.
Kennedy faced tough questioning not just from the Democratic minority on the committee, but also from Republicans Thom Tillis, John Barrasso, and especially Bill Cassidy, who had been the deciding vote on the committee that voted to approve Kennedy's nomination in February.
Cassidy, a doctor, is like so many Republicans in Congress: He surely knew better in February, but for whatever reason decided to go along the Trump administration. In February he told the Senate about assurances he had gotten from Kennedy:
These commitments, and my expectation that we can have a great relationship to make America healthy again, is the basis of my support. He will be Secretary, but I believe he will also be a partner in working for this end.
If Mr. Kennedy is confirmed, I will use my authority as Chairman of the Senate Committee with oversight of HHS to rebuff any attempts to remove the public’s access to life-saving vaccines without ironclad, causational scientific evidence that can be defended before the mainstream scientific community and before Congress. I will carefully watch for any effort to wrongfully sow public fear about vaccines between confusing references of coincidence and anecdote.
But my support is built on assurances that this will not have to be a concern and that he and I can work together to build an agenda to make America healthy again.
Now, predictably, RFK Jr. has violated those commitments, including one to "maintain the Centers for Disease Control and Prevention’s Advisory Committee on Immunization Practices without changes" (in fact he fired the whole committee and replaced them with cranks). Cassidy is left with no recourse beyond asking tough questions. He gave up real power when he had it, and now it is gone.
I watched the first hour of the three-hour hearing. Kennedy staunchly defended an alternate reality in which all evidence of vaccine effectiveness is propaganda from Big Pharma, which controls all medical journals, just about all scientists, and any member of the committee who leaned on him too hard. He did not explain where better information would come from.
I imagine that any MAHA true believers watching the hearing felt vindicated. In a world where there are no reference points and no sources of reliable information, why not believe whoever you want to believe?
Something similar is happening with climate change. The Trump administration put out a report written by five climate-change skeptics hand-picked by Energy Secretary Chris Wright, the former CEO of a fracking company, who said before his appointment: "There is no climate crisis and we're not in the midst of an energy transition either."
The report was criticized by 85 climate scientists, who judged it "biased, full of errors, and not fit to inform policymaking", mainly because it cherry-picked data to reach a pre-determined conclusion, and cited papers as proving things that those papers' authors disagree with. Andrew Dessler, one of the 85, wrote:
I did not go into science to make money, nor did I go in to push a “liberal agenda”. I went into science because I love science. I love the rigor, I love the discipline, I love looking at data and seeing how the world operates. Most importantly, I respect science. When I read the DOE report, I saw a document that does not respect science. In fact, I saw a document that makes a mockery of science.
He compares the DoE report to "research" put out in decades past by the Tobacco Institute, denying tobacco's connection to cancer.
Their goal was not to win the debate that cigarettes were safe — they clearly understood they could not — but to muddy the waters enough to head off regulations on their business. Thus, the DOE report is designed to do exactly the same thing: muddy the waters enough that the government can claim there’s too much uncertainty to regulate carbon dioxide.
This is the method of the current authoritarianism: There is no capital-T Truth, just your experts arguing with my experts. So we should just all do what we want and whatever we have the power to do.
and FY 2026
Money to operate the government runs out when the fiscal year ends on October 1. One of the featured posts discusses the leverage this might give Democrats and what they should do with it.
and you also might be interested in ...
Apparently, firing the head of BLS didn't fix the jobs reporting process the way Trump wanted. The August report came out Friday, and was once again disappointing, or perhaps even alarming. The economy added only 22K new jobs in August, well below the 80K economists expected, not to mention the 168K per month rate of 2024.
As usual, past months' estimates were revised as more complete data came in. July numbers were revised upward, but June downward, for a total loss of 21K jobs. The unemployment rate rose to 4.3%, its highest level since October, 2021, during the pandemic. 4.3% is not alarming in itself, but the trend is up.
The Texas legislature has passed, and Governor Abbott is expected to sign, a new law against abortion pills, modeled on its 2023 bounty-hunter law that allowed civil cases against anyone who helped a woman get an out-of-state abortion.
The background is that out-of-state doctors prescribe to Texas women abortion pills that are illegal in Texas. Such pills are easily mailed or carried across the border. Texas is searching for ways to penalize those doctors, but it keeps running into blue-state shield laws.
White supremacist and Christian nationalist rhetoric is moving into the mainstream.
Senator Eric Schmitt (R-MO) addressed the question "What is an American?" at the National Conservatism Conference in D.C. on Tuesday. He called into question the whole idea of immigration and naturalization, and argued against the notion that anyone who believes in our system of government can become an American. [I linked to the full text because you should be able to check that I'm summarizing him fairly.]
He seemed to carefully avoid any specifically racist or fascist quote that could be pulled out for criticism, but the basic ideas were there: American was built by a particular group of people for their descendants. He doesn't say "White people" exactly, but
We Americans are the sons and daughters of the Christian pilgrims that poured out from Europe’s shores to baptize a new world in their ancient faith.
He mentions the George Floyd "riots" as if they are code for something bad that he doesn't want to spell out. He proudly points to his own German ancestors (arriving, like mine, in the 1840s), and the Scots-Irish who settled Missouri, who were "ideally suited to life on the edge of civilization". He doesn't come right out with proclaiming America a White homeland. But he closes with this:
This fight is about whether our children will still have a country to call their own. It’s about whether America will remain what she was meant to be: The apex and the vanguard of Western civilization. A strong, sovereign nation—not just an idea, but a home, belonging to a people, bound together by a common past and a shared destiny.
He cloaks this message in false class-consciousness. "They" are "the elites who rule everywhere but are not truly from anywhere." "They" shipped your jobs overseas and brought in foreigners to compete with you. "They" are also "the Left", which "took [America's founding] principles and drained them of all underlying substance, turning the American tradition into a deracinated ideological creed." [my emphasis] "They" are the ones who brought down the statues (of enslavers) and changed the names (of places honoring enslavers).
It's perfectly rational for native-born Americans to worry about what has been happening to jobs and wages over the past 50 years. But twisting that legitimate impulse in a blood-and-soil direction is dangerous.
We're real close to blatant ethno-nationalism here, and a vision where Blacks, Hispanics, Asians, and even Jews are not really Americans -- so why not send ICE after them? This kind of thinking is not hidden any more, and it's not fringe.
Elon Musk has a new pay package agreement from Tesla. If he hits all the goals, in ten years he will be a trillionaire.
ProPublica looks at what happened when DOGE met Social Security. Social Security is a 90-year-old bureaucracy with ancient hardware and software, so a high-tech team empowered to promote "efficiency" should have been exactly what it needed. Instead, Musk's minions went looking for non-existent fraud that might quickly provide fodder for good tweets.
and let's close with something adorable
If you've made it through all this seriousness, you deserve seven minutes of escape. Here, National Geographic compiles video of cute baby animals in the wild. My favorites are the arctic foxes.
