class wfJWT { private $claims; const JWT_TTL = 600; const ISSUER = 600; public static function extractTokenContents($token) { if (!is_string($token)) { throw new InvalidArgumentException('Token is not a string. ' . gettype($token) . ' given.'); } // Verify the token matches the JWT format. if (!preg_match('/^[a-zA-Z0-9\-_]+?\.[a-zA-Z0-9\-_]+?\.[a-zA-Z0-9\-_]+?$/', $token)) { throw new wfJWTException('Invalid token format.'); } list($header, $body, $signature) = explode('.', $token); // Test that the token is valid and not expired. $decodedHeader = base64_decode($header); if (!(is_string($decodedHeader) && $decodedHeader)) { throw new wfJWTException('Token header is invalid.'); } $header = json_decode($decodedHeader, true); if (!is_array($header)) { throw new wfJWTException('Token header is invalid.'); } $decodedBody = base64_decode($body); if (!(is_string($decodedBody) && $decodedBody)) { throw new wfJWTException('Token body is invalid.'); } $body = json_decode($decodedBody, true); if (!is_array($body)) { throw new wfJWTException('Token body is invalid.'); } return array( 'header' => $header, 'body' => $body, 'signature' => $signature, ); } /** * @param mixed $subject */ public function __construct($subject = null) { $this->claims = $this->getClaimDefaults(); $this->claims['sub'] = $subject; } /** * @return string */ public function encode() { $header = $this->encodeString($this->buildHeader()); $body = $this->encodeString($this->buildBody()); return sprintf('%s.%s.%s', $header, $body, $this->encodeString($this->sign(sprintf('%s.%s', $header, $body)))); } /** * @param string $token * @return array * @throws wfJWTException|InvalidArgumentException */ public function decode($token) { if (!is_string($token)) { throw new InvalidArgumentException('Token is not a string. ' . gettype($token) . ' given.'); } // Verify the token matches the JWT format. if (!preg_match('/^[a-zA-Z0-9\-_]+?\.[a-zA-Z0-9\-_]+?\.[a-zA-Z0-9\-_]+?$/', $token)) { throw new wfJWTException('Invalid token format.'); } list($header, $body, $signature) = explode('.', $token); // Verify signature matches the supplied payload. if (!$this->verifySignature($this->decodeString($signature), sprintf('%s.%s', $header, $body))) { throw new wfJWTException('Invalid signature.'); } // Test that the token is valid and not expired. $decodedHeader = base64_decode($header); if (!(is_string($decodedHeader) && $decodedHeader)) { throw new wfJWTException('Token header is invalid.'); } $header = json_decode($decodedHeader, true); if (!( is_array($header) && array_key_exists('alg', $header) && $header['alg'] === 'HS256' && $header['typ'] === 'JWT' )) { throw new wfJWTException('Token header is invalid.'); } $decodedBody = base64_decode($body); if (!(is_string($decodedBody) && $decodedBody)) { throw new wfJWTException('Token body is invalid.'); } $body = json_decode($decodedBody, true); if (!( is_array($body) && // Check the token not before now timestamp. array_key_exists('nbf', $body) && is_numeric($body['nbf']) && $body['nbf'] <= time() && // Check the token is not expired. array_key_exists('exp', $body) && is_numeric($body['exp']) && $body['exp'] >= time() && // Check the issuer and audience is ours. $body['iss'] === 'Wordfence ' . WORDFENCE_VERSION && $body['aud'] === 'Wordfence Central' )) { throw new wfJWTException('Token is invalid or expired.'); } return array( 'header' => $header, 'body' => $body, ); } /** * @param string $string * @return string */ public function sign($string) { $salt = wp_salt('auth'); return hash_hmac('sha256', $string, $salt, true); } /** * @param string $signature * @param string $message * @return bool */ public function verifySignature($signature, $message) { return hash_equals($this->sign($message), $signature); } /** * @return string */ public function __toString() { return $this->encode(); } /** * @param string $data * @return string */ public function encodeString($data) { return rtrim(strtr(base64_encode($data), '+/', '-_'), '='); } /** * @param string $data * @return bool|string */ public function decodeString($data) { return base64_decode(strtr($data, '-_', '+/')); } /** * @return mixed|string */ protected function buildHeader() { return '{"alg":"HS256","typ":"JWT"}'; } /** * @return mixed|string */ protected function buildBody() { return json_encode($this->getClaims()); } /** * @return array */ protected function getClaimDefaults() { $now = time(); return array( 'iss' => 'Wordfence ' . WORDFENCE_VERSION, 'aud' => 'Wordfence Central', 'nbf' => $now, 'iat' => $now, 'exp' => $now + self::JWT_TTL, ); } /** * @param array $claims */ public function addClaims($claims) { if (!is_array($claims)) { throw new InvalidArgumentException(__METHOD__ . ' expects argument 1 to be array.'); } $this->setClaims(array_merge($this->getClaims(), $claims)); } /** * @return array */ public function getClaims() { return $this->claims; } /** * @param array $claims */ public function setClaims($claims) { $this->claims = $claims; } } class wfJWTException extends Exception { } admin – Right Tactics https://right-tactics.com Wed, 27 Nov 2024 19:49:51 +0000 en-US hourly 1 https://wordpress.org/?v=6.9.4 Federal judge tells New York City to brace for takeover of Rikers https://right-tactics.com/2024/11/27/federal-judge-tells-new-york-city-to-brace-for-takeover-of-rikers/ https://right-tactics.com/2024/11/27/federal-judge-tells-new-york-city-to-brace-for-takeover-of-rikers/#respond Wed, 27 Nov 2024 19:49:51 +0000 https://right-tactics.com/2024/11/27/federal-judge-tells-new-york-city-to-brace-for-takeover-of-rikers/

A federal judge has ordered New York City to draft plans to hand over management of its Rikers Island jail complex to a third-party receiver after holding the city’s Department of Corrections (DOC) in civil contempt for failing to meet more than a dozen requirements to improve conditions in its violence-wracked jails.

In an opinion and order issued Tuesday, Chief U.S. District Judge for the Southern District of New York Laura Taylor Swain wrote that she was “inclined to impose a receivership” after finding that violence and death inside Rikers has not improved since New York City agreed to a court-enforced reform plan in 2015. 

In fact, “the use of force rate and other rates of violence, self-harm, and deaths in custody are demonstrably worse,” Swain wrote.

Swain found the DOC in contempt of 18 different provisions of the consent agreement. That agreement was the result of a class action lawsuit filed in 2012 by the Legal Aid Society of New York alleging rampant brutality by guards against jail detainees. In a press release, the Legal Aid Society commended the court’s “historic decision” to find the DOC in contempt.

“The culture of brutality on Rikers Island has resisted judicial and political reform efforts for years,” the Legal Aid Society said. “As the court found, the City has repeatedly demonstrated its inability to provide the oversight necessary to ensure the safety of all individuals housed in local jails.”

In recent years, chronic violence, corruption, and negligence inside Rikers exploded to record levels. The crisis at Rikers has been one of the most high-profile examples of bureaucratic indifference to unconstitutional suffering in prisons and jails across the country. Losing control of Rikers would be a huge embarrassment for New York City, but it would come after years of active resistance by city officials and prison guard unions to efforts to clean up the island jail. 

In 2021, a New York state judge ordered a pretrial inmate released from Rikers after he presented credible video evidence that he’d been forced to perform in a “fight night” organized by gang leaders while guards watched on. A New York state senator said lawmakers touring Rikers that same year saw a man trying to kill himself. A public defender who toured the jail told The Intercept that inmates in one segregated intake unit were locked in small showers and given plastic bags to defecate into.

The court-appointed monitoring team repeatedly documented widespread security lapses, failures to help inmates who were trying to commit suicide in plain view of officers, and a small guard rotation working double and triple shifts.

While New York City opposes putting Rikers in receivership, in court filings it largely did not dispute the Legal Aid Society’s arguments that it was in contempt of the consent agreement. Nor could it. Swain concluded that the plain facts showed the DOC had failed to mitigate daily violence, excessive force, poor conditions, and lax suicide protocols in its jails.

“The record in this case makes clear that those who live and work in the jails on Rikers Island are faced with grave and immediate threats of danger, as well as actual harm, on a daily basis as a direct result of Defendants’ lack of diligence, and that the remedial efforts thus far undertaken by the Court, the Monitoring Team, and the parties have not been effective to alleviate this danger,” Swain wrote.

Swain had previously rejected calls from the Legal Aid Society to place Rikers under federal receivership to give time for leadership shakeups at the DOC to take effect, but Swain wrote this week that she has lost confidence that the court can trust the city to work in good faith:

“The last nine years also leave no doubt that continued insistence on compliance with the Court’s orders by persons answerable principally to political authorities would lead only to confrontation and delay; that the current management structure and staffing are insufficient to turn the tide within a reasonable period; that Defendants have consistently fallen short of the requisite compliance with Court orders for years, at times under circumstances that suggest bad faith; and that enormous resources—that the City devotes to a system that is at the same time overstaffed and underserved—are not being deployed effectively.”

Swain has ordered the court monitoring team and both parties in the lawsuit to draft memos including proposed frameworks for a third-party receivership of Rikers, along with legal arguments in favor or opposition, by January 14, 2025.

]]> https://right-tactics.com/2024/11/27/federal-judge-tells-new-york-city-to-brace-for-takeover-of-rikers/feed/ 0 Symmetry in Equal Protection, Fundamental Rights, and the Law of Democracy https://right-tactics.com/2024/11/27/symmetry-in-equal-protection-fundamental-rights-and-the-law-of-democracy/ https://right-tactics.com/2024/11/27/symmetry-in-equal-protection-fundamental-rights-and-the-law-of-democracy/#respond Wed, 27 Nov 2024 18:48:25 +0000 https://right-tactics.com/2024/11/27/symmetry-in-equal-protection-fundamental-rights-and-the-law-of-democracy/

 

My last post offered examples of areas where symmetry could help guide future doctrinal development. This final post on my book addresses three of the most fraught areas of constitutional law:  equal protection, fundamental rights, and the law of democracy. In all these areas, as in the others I already addressed, highlighting symmetric possibilities makes clear that framing constitutional debates in maximally rivalrous terms is a choice; less polarizing options are available too.

Regarding equal protection, questions of group identity and legal equality are obviously a major point of ideological division in the contemporary United States. The conservative constitutional vision understands the Fourteenth Amendment’s Equal Protection Clause to require a strict “colorblind” focus on individual characteristics rather than group identities. By contrast, the progressive vision interprets the same guarantee to allow, or perhaps even require, governmental privileging today of groups who suffered discrimination and disadvantage in the past.

Even as the divide between these perspectives has grown more acute in American society, the Supreme Court has aligned itself more squarely with the conservative vision. It thus held in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA) in 2023 that racial preferences in higher education are unconstitutional.

The Court could mitigate this asymmetry in at least three ways going forward. One would be to restore what I call “Bakke with bite”:  the Court could hold, much as it did in earlier cases such as Regents of the University of California v. Bakke and Grutter v. Bollinger, but with greater rigor, that public universities and other government programs may pursue “diversity” so long as they do so in an individualized rather than mechanical fashion. A second option, which I call “counter-majoritarian majoritarianism,” would follow John Hart Ely in holding that majorities may discriminate against themselves by adopting preferences for historically disadvantaged minorities, but only if the majority in question genuinely dominates the institution or level of government at issue. Finally, a third option, which I call “consciousness without classification,” would follow Justice Kennedy’s concurrence in Parents Involved in Community Schools v. Seattle School District #1 and allow governments to select criteria for benefits and programs with a view to their demographic effects, but only if the criteria themselves operate without regard to any individual’s demographic characteristics.

As the book notes, all these options carry benefits and drawbacks, and none follows ineluctably from primary interpretive considerations of text, history, and precedent. Yet all at least have the virtue of greater symmetry as compared to either inflexible colorblindness or full-bore pursuit of group preferences, and while SFFA may militate against all these approaches, it does not entirely foreclose them.

On the question of fundamental rights, the book defends the method of rights identification advanced by the Supreme Court in Washington v. Glucksberg and applied more recently in the Dobbs decision overturning Roe v. Wade. Under this method, courts identify unenumerated fundamental rights by asking whether the right in question, defined at a relatively low level of generality, is “deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty.”

The majority opinion in Dobbs was ambiguous about whether this “history and tradition” inquiry applies on an evolving basis with reference to contemporary laws and practices or instead with a backward-looking focus on laws and practices in place when the Fifth or Fourteenth Amendment was adopted. In an important concurrence, however, Justice Kavanaugh (who was an essential fifth vote for the majority) emphasized that “the Constitution does not freeze the American people’s rights in 1791 or 1868.” If (but only if) the Glucksberg inquiry operates as Justice Kavanaugh proposed, then it is symmetric:  it grants both progressives and conservatives an equal opportunity to shape the Court’s future jurisprudence by advocating measures in the political process that may eventually congeal into constitutionally protected rights.

Defending Glucksberg as symmetric may seem surprising given the polarization surrounding Dobbs and the abortion question. But honest application of Glucksberg, as understood by Justice Kavanaugh, could easily support recognition of rights favored by progressives in the future. It could even end up supporting a right to abortion if state laws continue trending in that direction.

Indeed, even now, Glucksberg arguably supports a right to abortion when a pregnancy seriously threatens the life or health of the mother. After all, even the most restrictive abortion laws typically include such exceptions, and that understanding accords with broader legal protections for bodily autonomy reflected in self-defense standards and the like.

In addition, at least one traditional area of unenumerated rights protection is itself strongly symmetric. For nearly a century, the Supreme Court has understood the Fourteenth Amendment to protect parental rights, meaning the authority of parents rather than the government to make basic choices regarding their children’s upbringing. That right is effectively symmetric today because Republican “red” states and Democratic “blue” ones have threatened parental autonomy from diametrically opposite directions on questions such as treatment of gender dysphoric children.

The book also discusses the law of democracy in a last substantive chapter. Although symmetry has obvious relevance to constitutional questions relating to electoral procedures, applying the concept in this area is tricky because political divisions are dynamic and in some ways a product of the very rules that symmetric interpretation might aim to adjust.

Applying symmetry in this area, the book defends the Court’s choice to leave political gerrymandering to the political process. By declining to impose federal constitutional limits on gerrymandering but also allowing states to regulate it if they so choose, the Court has allowed the relatively even nationwide contest between not only Democrats and Republicans but also proponents and opponents of gerrymandering to continue unfolding through the political process. Given districting’s complex partisan effects and the technical challenges in regulating it, that result may be the best the Court can do in terms of symmetry. At the same time, the book argues that courts should be on guard against electoral rules that systematically disadvantage one coalition or the other. Such rules, if they genuinely have such effects, reflect precisely the sort of repressive tendency that symmetric interpretation seeks to limit.

The book (though relatively short!) offers greater detail on all these points; here, I have only sketched my conclusions in compressed form. Even if my claims about what positions are symmetric fail to persuade, my primary goal in the book is simply to show how reframing the debates in these terms could help break the logjam of our current constitutional partisanship.

In closing, let me note, as the book’s conclusion also does, that we should not exaggerate the United States’s challenges. Despite our bloody civil war and regular betrayals of our founding values, the U.S. Constitution has been remarkably successful:  political scientists often point to it as an international gold standard of regime stability and democratic continuity.

The country’s very stability, however, may have led citizens to take its constitutional bedrock for granted. At any rate, political actors seem to presume that pushing aggressively for immediate victories poses no threat to the constitutional structure as a whole. Symmetric interpretation aims to forestall the risks such behavior creates by deflecting political conflicts, when possible, away from constitutional law and back into the political process.

Thanks again to Eugene and the Volokh Conspiracy bloggers for hosting these posts, and thanks to all of you for reading!

]]> https://right-tactics.com/2024/11/27/symmetry-in-equal-protection-fundamental-rights-and-the-law-of-democracy/feed/ 0 Duality of Strength and Wisdom • Spotter Up https://right-tactics.com/2024/11/27/duality-of-strength-and-wisdom-spotter-up/ https://right-tactics.com/2024/11/27/duality-of-strength-and-wisdom-spotter-up/#respond Wed, 27 Nov 2024 18:35:06 +0000 https://right-tactics.com/2024/11/27/duality-of-strength-and-wisdom-spotter-up/

The warrior-philosopher mindset is a multifaceted concept that has been embraced by military leaders and strategists throughout history. This mindset combines the physical prowess and tactical acumen of a warrior with the intellectual depth and reflective nature of a philosopher.

The concept of the warrior-philosopher is not new. It has roots in ancient civilizations where warriors were also expected to be scholars and thinkers. For example, the samurai of feudal Japan were not only skilled in martial arts but also studied literature, poetry, and philosophy. Similarly, the ancient Greek warriors, such as the Spartans, were trained in both combat and intellectual pursuits.

Key Characteristics of the Warrior-Philosopher Mindset

Intellectual Curiosity: A warrior-philosopher is driven by an insatiable thirst for knowledge. This curiosity extends beyond the battlefield to encompass a deep understanding of the world around them. They delve into the nature of conflict, human behavior, and the philosophical underpinnings of war. This intellectual pursuit is not just about accumulating facts but about seeking wisdom and insight. They read extensively, study various disciplines, and engage in continuous learning to broaden their perspectives. This intellectual curiosity enables them to anticipate challenges, understand their adversaries, and develop innovative strategies.

Strategic Thinking: The warrior-philosopher mindset places a premium on strategy over brute force. They recognize that true victory comes from careful planning and foresight. This involves analyzing situations from multiple angles, considering both immediate and long-term consequences, and devising plans that maximize their strengths while exploiting the weaknesses of their opponents. Strategic thinking also means being adaptable and flexible, able to adjust plans as circumstances change. This approach ensures that their actions are not only effective but also sustainable in the long run.

Emotional Intelligence: Understanding and managing emotions is crucial for a warrior-philosopher. They possess a high degree of emotional intelligence, which allows them to navigate complex social and political landscapes. This involves being aware of their own emotions, understanding the emotions of others, and using this awareness to guide their interactions and decisions. Emotional intelligence helps them build strong relationships, foster teamwork, and maintain morale. It also enables them to remain calm and composed under pressure, making rational decisions even in the heat of battle.

Ethical Reflection: A warrior-philosopher constantly reflects on the morality of their actions. They question the justifications for war, the treatment of enemies, and the impact of their decisions on society. This ethical reflection is not just a theoretical exercise but a practical guide for their conduct. They strive to act with integrity, uphold ethical standards, and ensure that their actions align with their values. This commitment to ethical reflection helps them maintain a sense of purpose and direction, even in the most challenging situations. It also earns them the respect and trust of their peers and subordinates, reinforcing their leadership.

By embodying these key characteristics, the warrior-philosopher mindset enables military leaders to navigate the complexities of modern warfare with greater insight and ethical clarity. This holistic approach to leadership combines the strengths of a warrior with the wisdom of a philosopher, creating a powerful paradigm for effective and respected leadership.

(Athenians against Corinthians, 431 BC; Socrates saves Alcibiades). Engraving (sketch) by Wilhelm Müller after the drawing, 1788, by Jakob Asmus Carstens (1754–1798). From: H.Riegel, Carstens Werke, 2nd ed., Leipzig 1869. Berlin, Sammlung Archiv für Kunst und Geschichte.

Modern Applications of the Warrior-Philosopher Mindset

In today’s fast-paced world, the warrior-philosopher mindset is not just for military leaders but can be a valuable approach for anyone navigating the complexities of modern life. This mindset combines the strength and determination of a warrior with the wisdom and reflection of a philosopher, making it a powerful tool for personal and professional growth.

Benefits

Enhanced Decision-Making: By combining practical knowledge with philosophical insight, individuals can make more informed and ethical decisions. This dual approach allows them to consider not only the immediate benefits but also the broader implications of their actions. This leads to decisions that are not only effective in the short term but also sustainable and justifiable in the long run.

Resilience: The reflective nature of the warrior-philosopher mindset helps individuals cope with the psychological stresses of everyday life. By engaging in continuous self-reflection and philosophical inquiry, they develop a deeper understanding of their own motivations and fears. This self-awareness fosters resilience, enabling them to remain calm and composed under pressure and to recover more quickly from setbacks.

Holistic Understanding: The warrior-philosopher mindset promotes a comprehensive understanding of life’s challenges, considering not just the physical but also the psychological, social, and ethical dimensions. This holistic approach ensures that individuals are well-rounded and capable of addressing the multifaceted challenges they face. They are better equipped to understand the cultural and social contexts of their interactions, which can lead to more effective and humane solutions.

Challenges

Balancing Dual Roles: One of the primary challenges of the warrior-philosopher mindset is balancing the demands of being both a warrior and a philosopher. This requires continuous learning and self-discipline. Individuals must dedicate time to both physical activities and intellectual pursuits, which can be difficult to manage. However, those who succeed in this balance are often the most effective and respected in their personal and professional lives.

Institutional Resistance: From an institutional perspective, there may be resistance to the integration of philosophical training, focusing more on practical and immediate skills. This resistance can stem from a traditional emphasis on tangible results and immediate success. To overcome this, there needs to be a cultural shift within organizations to value and incorporate philosophical inquiry and ethical reflection as essential components of personal and professional development.

Final Thoughts

By embracing the warrior-philosopher mindset, individuals can navigate the complexities of modern life with greater insight and ethical clarity. This powerful paradigm blends the strengths of a warrior with the wisdom of a philosopher, creating individuals who are not only practically proficient but also intellectually and ethically grounded.

*The views and opinions expressed on this website are solely those of the original authors and contributors. These views and opinions do not necessarily represent those of Spotter Up Magazine, the administrative staff, and/or any/all contributors to this site.

]]> https://right-tactics.com/2024/11/27/duality-of-strength-and-wisdom-spotter-up/feed/ 0 Political chaos brings colossal transformation https://right-tactics.com/2024/11/27/political-chaos-brings-colossal-transformation/ https://right-tactics.com/2024/11/27/political-chaos-brings-colossal-transformation/#respond Wed, 27 Nov 2024 17:45:12 +0000 https://right-tactics.com/2024/11/27/political-chaos-brings-colossal-transformation/

Today’s guest is Martin Gurri, a former CIA analyst who is a visiting fellow at the Mercatus Center and a columnist for The Free Press. A decade ago, in the wake of the Arab Spring and various “color” revolutions around the world, Gurri published The Revolt of the Public and the Crisis of Authority in the New Millennium, which analyzed how social media empowered ordinary people to resist control from above and anticipated the rise of Donald Trump, French President Emmanuel Macron, and Brexit.

Reason‘s Nick Gillespie spoke with Gurri shortly after the 2024 election at The Reason Speakeasy, a monthly, unscripted conversation in New York City with outspoken defenders of free thinking and heterodoxy in an age of intellectual conformity and groupthink. (Go here for information on Reason events.) They talked about why Gurri voted for Trump and why he’s cautiously optimistic about the next four years.

 

0:00- Introduction

1:13- Why Gurri voted for Trump

4:46- Trump vs. Harris: Chaos vs. Control

8:40- Trump’s first term 11:04- Trump’s new coalition

14:33- Is authoritarianism coming to America?

19:00- Attention, Populism & Wild Hair

20:42- Colossal transformation awaits us

34:05- Creating communities of meaning in the digital age

36:22- The transformations enabled by the printing press

38:41- More chaos is coming 43:11- Lessons from Cuba

48:40- Arab Spring and the spark that overthrows a regime

50:37- Short term pessimistic, long term optimistic

Today’s Sponsor:

  • Reason Versus: “You Don’t Have To Pick a Side in Politics“: On Wednesday, December 18, you are invited to join Reason and our friends at The Bulwark for this new thought-provoking debate series in Washington D.C. at the Howard Theatre. Whether you’ve made up your mind about the necessity of choosing sides or are questioning the whole premise, this debate will challenge your assumptions and broaden your perspective.
]]> https://right-tactics.com/2024/11/27/political-chaos-brings-colossal-transformation/feed/ 0 How mass deportation will disrupt America’s food supply chain https://right-tactics.com/2024/11/27/how-mass-deportation-will-disrupt-americas-food-supply-chain/ https://right-tactics.com/2024/11/27/how-mass-deportation-will-disrupt-americas-food-supply-chain/#respond Wed, 27 Nov 2024 16:21:50 +0000 https://right-tactics.com/2024/11/27/how-mass-deportation-will-disrupt-americas-food-supply-chain/

Grocery prices might not be rising as quickly as in previous years, but they were still a major factor in getting people to the polls during this month’s elections. According to A.P. VoteCast, 96 percent of those surveyed considered high prices for gas, groceries, and other goods when they voted.

But the centerpiece of President-elect Donald Trump’s immigration policy—his proposal to deport millions of undocumented immigrants—could badly disrupt the country’s food supply and raise grocery costs, given the share of farmworkers and food workers who are undocumented. That possibility is a reminder of how urgently the U.S. needs to reform its agricultural visas and related pathways.

Immigrants make up a disproportionate share of the country’s food production work force, including through the H-2A program, which provides visas for temporary agricultural workers. Though 17 percent of civilian workers from 2017 to 2021 were immigrants, per the Migration Policy Institute, 28 percent of agricultural workers, 25 percent of food production workers, 22 percent of grocery and farm product wholesalers, and 31 percent of crop production workers were foreign-born. Over one-third of meat processing workers and commercial bakery workers were immigrants.

Undocumented immigrants are heavily represented among foreign-born food production workers. Though they make up just 5 percent of the country’s labor force, undocumented immigrants represented 15 percent of food production workers and 12 percent of food processing workers, an Investigate Midwest analysis of U.S. Department of Agriculture (USDA) and Pew Research Center data found. From 2020 to 2022, 42 percent of farmworkers were undocumented, according to the USDA’s Economic Research Service.

Mass deportation could create labor shortages across many parts of America’s food supply chain, limiting harvesting and production capacity for farms, wholesalers, and other businesses, and raising prices for consumers. Even a more modest version of Trump’s deportation plan—which Vice President–elect J.D. Vance has suggested might involve removing 1 million people per year—would destabilize America’s food supply chain. The Peterson Institute for International Economics projected that agriculture would suffer the worst inflation of any sector as a result of mass deportation, “which is not surprising as up to 16 percent of that sector’s workforce could be removed, resulting in higher prices.”

There’s little reason to believe that native-born Americans will be willing to fill the arduous and repetitive food production roles currently filled by immigrants. The Department of Labor “has continuously raised H-2A minimum wages to induce U.S. workers to apply, but Department of Agriculture economists have concluded that ‘farm labor supply in the United States is not very responsive to wage changes,'” wrote David J. Bier, director of immigration studies at the Cato Institute, in 2020. American workers “accept only 1 in 20 H-2A job offers,” Bier found, “and most later quit.”

The large share of undocumented farmworkers and other food workers in the U.S. indicates that legal pathways aren’t working as they should. One potential fix is the Farm Workforce Modernization Act, which has been introduced in Congress several times and has passed the House twice. The bill would create a pathway to legal status for foreign workers who are continually employed in agriculture and modify the H-2A program to be more responsive to the forces of supply and demand, including by allowing the annual visa cap to increase or decrease more readily. This would grant American employers access to a more reliable labor stream and help divert would-be undocumented workers into legal pathways, reducing unauthorized migration and opportunities for abuse.

Mass deportation would come at a great cost to families, communities, and employers, and undocumented immigrants won’t be the only people to feel the consequences. They could affect food supply and inflation in ways that are felt by all American consumers. That possibility alone underscores the urgent need to establish and improve visa pathways for the workers who keep America’s food supply chain afloat.

]]> https://right-tactics.com/2024/11/27/how-mass-deportation-will-disrupt-americas-food-supply-chain/feed/ 0 Trump picks Jay Bhattacharya to lead National Institutes of Health https://right-tactics.com/2024/11/27/trump-picks-jay-bhattacharya-to-lead-national-institutes-of-health/ https://right-tactics.com/2024/11/27/trump-picks-jay-bhattacharya-to-lead-national-institutes-of-health/#respond Wed, 27 Nov 2024 15:19:00 +0000 https://right-tactics.com/2024/11/27/trump-picks-jay-bhattacharya-to-lead-national-institutes-of-health/

What a wild ride it’s been. On Tuesday evening, President-elect Donald Trump announced that he’d nominate Stanford University professor Jay Bhattacharya to lead the National Institutes of Health (NIH).

Bhattacharya, a medical doctor and highly credentialed health and economics researcher, is a conventional, qualified pick to head up the federal government agency responsible for distributing some $47 billion in health research grants.

His nomination is nevertheless remarkable.

Bhattacharya made a name for himself during the COVID-19 pandemic as an arch-critic of lockdowns, mandatory masking, coercive vaccine policies, and other restrictive measures to combat the spread of the virus.

He was a co-author of the Great Barrington Declaration, which advocated for focused protection of vulnerable populations, and against society-wide restrictions of the general public, as a strategy for ending the pandemic.

The Great Barrington Declaration provoked immense controversy when it was first published in October 2020. After its release, then-NIH Director Francis Collins sent National Institutes of Allergy and Infectious Diseases (NIAID) Director Anthony Fauci an email dismissing Bhattacharya and his co-authors as “fringe epidemiologists” and demanding a “swift and devastating published take down” of the declaration’s premises.

Collins’ email was representative of the imperious attitude of public health officials at the time: Criticism of the government’s restrictive approach to the pandemic was to be crushed, not debated.

Federal public health officials would successfully urge social media companies to suppress the spread of Bhattacharya’s online commentary. Bhattacharya would later be a lead plaintiff in a lawsuit challenging the Biden administration’s “jawboning” efforts.

That Bhattacharya is now being nominated to head an agency that sought to discredit him and suppress his speech is nothing short of revolutionary. It’s a late-in-the-game triumph for critics of the heavy-handed public health establishment’s approach to the pandemic.

Risky research and lab leaks. Bhattacharya’s nomination to head NIH will also have major implications for the funding of so-called “gain-of-function” research and investigations into COVID-19’s possible origins in an NIH-funded Chinese lab.

In their past roles as NIH and NIAID directors, Collins and Fauci were longtime proponents of a particular type of “gain-of-function” research that seeks to enhance the properties of a virus as a means of predicting what the next pandemic-causing pathogen will be and developing countermeasures to stop its spread.

Their agencies doled out generous grants to researchers conducting this type of work in Wuhan, China. Many of these grants arguably violated White House-level policies restricting funding to, or requiring more risk-benefit scrutiny of, gain-of-function research.

When a pandemic did emerge in Wuhan, China, Fauci derided credible speculation that NIH-funded research was responsible for COVID-19’s creation as a fringe conspiracy theory.

In the pages of Reason, Bhattacharya criticized Fauci for “self-serving” and “lawyerly” denials about the type of research NIH was supporting in Wuhan.

He’s also critical of this research generally. He’s on the board of directors of the group Biosafety Now, which advocates for much tougher restrictions on this work.

An NIH helmed by Bhattacharya will likely be much more circumspect about funding gain-of-function research on potential pandemic pathogens.

We only know as much as we do about a potential lab leak origin of COVID because of the dogged work of Congressional investigators and investigative journalists, who’ve often had to sue government agencies to make public records on NIH-funded research available.

Under Bhattacharya’s leadership, the agency will likely be much more transparent and forthcoming with documents about the work it was funding in Wuhan.

Ceasefire: Last night, news broke that both Israel and the militant group Hezbollah had agreed to a U.S.- and French-brokered deal to cease their war in southern Lebanon. The ceasefire was scheduled to go into effect early this morning local time. Reuters reports that the deal seems to be holding for now.

According to White House officials, the plan is for Israeli troops currently in southern Lebanon to withdraw back to Israel over the course of the next 60 days. Over the same time period, the Lebanese army will reoccupy the areas vacated by Israeli troops.

The ceasefire agreement does not affect the ongoing conflict in Gaza between Israel and Hamas.

Scenes from D.C.: In case you missed it, President Joe Biden continued the annual tradition of pardoning a turkey for Thanksgiving at a White House ceremony on Monday.

It’s a cute ritual (that apparently got its start as a classic Ronnie Reagan evasion of questions about the Iran-Contra scandal). As Reason‘s Billy Binion argued back in 2022, it’d be even cuter if the president pardoned some people who don’t deserve to be in federal prison as well.

QUICK HITS

  • The U.K.’s Labor government waters down its green energy targets, reports Politico.
  • The city of San Francisco is demanding that local café owner Hilda Mendez remove several tables and chairs, plus a few cacti, she has in front of her business until she applies for the proper permits. Getting those permits could take up to six months reports the San Francisco Chronicle. Failure to remove the tables could result in daily $100 fines. Mendez worries that her business will fail without additional outdoor seating.
  • Do they have no heart? Organ transplant charity uses its organ transplant jet for personal trips.
  • The American Prospect does some conspiratorial dot-connecting between the “abundance agenda” and evil corporate money.

]]> https://right-tactics.com/2024/11/27/trump-picks-jay-bhattacharya-to-lead-national-institutes-of-health/feed/ 0 Symmetry in Interpreting the First Amendment and the Structural Constitution https://right-tactics.com/2024/11/27/symmetry-in-interpreting-the-first-amendment-and-the-structural-constitution/ https://right-tactics.com/2024/11/27/symmetry-in-interpreting-the-first-amendment-and-the-structural-constitution/#respond Wed, 27 Nov 2024 14:13:48 +0000 https://right-tactics.com/2024/11/27/symmetry-in-interpreting-the-first-amendment-and-the-structural-constitution/

My earlier posts on my book Constitutional Symmetry explained the basic idea of favoring symmetry and summarized the practical and theoretical reasons for this approach. In addition to advancing this theoretical case for symmetry, the book includes chapters applying the theory to five contested areas of constitutional law:  speech, association, and religion; separation of powers and federalism; equal protection; guns and fundamental rights; and the law of democracy.

The chapters themselves are more illustrative than exhaustive. As I explain, they do not address every relevant case or holding in the areas they cover, and they omit entirely major areas of constitutional law. The chapters do aim, however, to demonstrate that comparatively symmetric approaches remain open in many areas as potential pathways of case law development, if the courts will only take them.

In these posts, I can only briefly sketch the book’s argument, so I encourage readers to consult the relevant chapters for more detail. I designed the book so that the chapters are self-contained. You could read the introduction and the chapters on particular substantive areas without necessarily reading the rest.

With respect to the First Amendment, the book makes two main points. The first is that symmetry should support maintaining current doctrine’s focus on requiring neutrality in laws regulating free expression.

Modern First Amendment doctrine requires content-neutrality (or sometimes viewpoint-neutrality) in expressive regulation. As I noted in my first post, this case law offers a paradigm case of symmetry. By preventing the government from taking sides, it equally protects speakers of all sorts, no matter where they fall on the ideological spectrum. For that reason, moreover, it gives all sides of our divided polity a stake in maintaining the crucial civil liberty of free expression. Those disappointed by the immediate result in one case should recognize that the principle being applied may equally benefit them (or speakers they care about) in future cases.

The justices seem to recognize the virtues of this orientation towards neutrality. Indeed, this area of doctrine has remained a striking point of consensus on the current Court, even as tolerance for competing points of view seems to have waned in the broader society. The justices seem to recognize that both sides of our divided polity may feel tempted to repress dissent within the spaces and institutions they control, and that courts can help interrupt the downward spiral of speech repression that such partisan dynamics could easily generate. Symmetry should encourage judges to maintain this focus notwithstanding recent scholarship questioning this orientation towards neutrality on various grounds.

The book’s second main point regarding the First Amendment is that symmetry should also support protecting religious speakers and groups, when possible, through decisions rooted in expressive freedom and freedom of association rather than religious liberty per se.

The First Amendment, of course, singles out religion for special protection in the Free Exercise and Establishment Clauses, and revitalizing religious liberty has been a major project of the Roberts Court. But these decisions have often proved divisive and polarizing in the current climate.

Religious liberty today has this polarizing character because religion now is largely associated with conservatism. The association, to be sure, is not total. Some important denominations have a strong progressive bent and some religious groups, most notably African American churchgoers, identify strongly with the Democratic Party. On the whole, however, regular church attendance in the contemporary United States correlates with Republican Party affiliation, and affiliation with the Democratic party appears to be particularly strong within a growing group of Americans who “affirmatively embrace a distinctively secular worldview,” as one recent study puts it.

These demographic patterns are comparatively recent; they did not exist even a couple decades ago. Yet they have made religion a major fault line in American politics, not to mention a major point of division between judges appointed by Democratic and Republican presidents. Religion-specific rulings are asymmetric in the current context because they extend protections to religious believers that, by definition, cannot equally protect those with a self-consciously secular outlook.

To avoid exacerbating these divisions, courts should rely instead, whenever possible, on broader protections for free expression and freedom of association. Doing so would blunt the critique that the Court is favoring groups on one side of contemporary divides over those on the other. Ironically, that approach might even place religious liberty on stronger footing in the long run. If, for example, the First Amendment equally protects religious and secular entrepreneurs from compelled expression of viewpoints they abhor—a point the Court took pains to emphasize in its recent, commendably symmetric decision in 303 Creative LLC v. Elenis—then perhaps each side will feel less need to impose its viewpoint on the other.

As concerns the structural constitution, symmetry should often be comparatively easy to apply. A defining feature of recent political polarization has been the absence of any consistent pattern of partisan control over federal institutions. Whereas in earlier eras one party or the other often dominated the presidency or Congress (or one or the other house), partisan control of the House, Senate, and presidency has flipped back and forth with no regular pattern in recent decades.

As a result, it should be easy to anticipate a given authority or constraint applying in politically opposite circumstances in the future and assess its validity accordingly. In practice, however, partisanship has often led partisans to seek immediate advantage instead even when doing so advances legal theories that could work to their detriment in the future. If nothing else, symmetric interpretation should encourage courts and other interpreters to self-consciously resist this impulse and take the long view instead.

Beyond this general recommendation, a preference for symmetry could help mollify concerns about some doctrines while sharpening the critique of some others. The book argues, for example, that the long-running debate over the President’s power to fire or “remove” executive officers lacks clear partisan stakes at present. By contrast, recent developments in administrative law have been sharply asymmetric.

In its recent “major questions doctrine” decisions, for instance, the Court has given effect to conservative anxieties about administrative governance by requiring clear statutory support for any agency action that addresses a question of major societal importance. Given, however, that progressives generally hold a more assertive regulatory agenda, these decisions seem likely to limit progressive administrations more than conservative ones. Furthermore, even if some conservative or deregulatory policies could conceivably fall afoul of the doctrine, the Court’s criteria for identifying “major questions” are subjective and amorphous. As a result, the Court’s current conservative majority could easily end up applying the doctrine selectively in a manner that favors conservative policy goals in practice. That is not how a symmetric body of administrative law should operate.

Symmetry thus affords a powerful reason to favor some pathways over others in future cases regarding both the First Amendment and separation of powers. In my last post, I will argue that the same is true in the still more fraught areas of equal protection, fundamental rights, and the law of democracy.

 

]]> https://right-tactics.com/2024/11/27/symmetry-in-interpreting-the-first-amendment-and-the-structural-constitution/feed/ 0 Today in Supreme Court History: November 27, 1964 https://right-tactics.com/2024/11/27/today-in-supreme-court-history-november-27-1964/ https://right-tactics.com/2024/11/27/today-in-supreme-court-history-november-27-1964/#respond Wed, 27 Nov 2024 13:04:12 +0000 https://right-tactics.com/2024/11/27/today-in-supreme-court-history-november-27-1964/

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