On page 5 of my Wall Street Journal this morning, and page 7 of my Washington Post, a full-page ad for Wells Fargo banners

Wells Fargo and NextEra Energy join together to fuel low-carbon economy throughout the U.S. 

Meanwhile, the front page of my Journal announces

Green-Power King Thrives on Government Subsidies

The article explains that NextEra Energy

has grown into a green Goliath, almost entirely under the radar, not through taking on heavy debt to expand or by touting its greenness, but by relentlessly capitalizing on government support for renewable energy, in particular the tax subsidies that help finance wind and solar projects around the country. It then sells the output to utilities, many of which must procure power from green sources to meet state mandates.

And also:

While environmentalists applaud NextEra’s commitment to building wind and solar farms outside Florida, they have criticized what they see as its attempts to slow the deployment of rooftop solar inside Florida where it would directly compete with its utility business.

As Wells Fargo tries to rescue its reputation after its account scandals, maybe it should forgo bragging about helping a company get heavy subsidies in order to sell its products to compelled buyers. Maybe as part of its apology and restitution, it should swear off participating in taxpayer-subsidized projects, as BB&T in 2006 vowed not to lend to projects that relied on eminent domain.

Would NextEra even be profitable without all these subsidies and mandates? At least it’s not Solyndra, the Obama-connected solar power company that left the taxpayers holding the bag for $500 million when it collapsed. (“Obama’s green-technology program was infused with politics at every level, The Washington Post found in an analysis of thousands of memos, company records and internal ­e‑mails. Political considerations were raised repeatedly by company investors, Energy Department bureaucrats and White House officials.”)

Maybe we should drop all these subsidies, restrictions, mandates, and trade barriers and let the free market deliver the right mix of energy at the lowest cost.

Would hate speech laws reduce discrimination, violence, and psychic injuries to vulnerable groups? Nadine Strossen says they would not in her new book, Hate Speech: Why We Should Resist It with Free Speech, Not Censorship. She believes we have insufficient evidence to conclude that “hate speech” in general harms others, and even less evidence that constitutionally protected “hate speech” does so. 

Naturally, proponents of “hate speech” laws blame expression for anti-social attitudes and conduct. Strossen maintains that we should refrain from censorship on the basis of expected effect, “simply because it might have bad effects.” The perceived harmfulness of any given utterance is context contingent, depending largely on variables like location, tone of voice, relationship between speaker and listener, and personality characteristics.

Strossen draws attention to a study conducted by Laura Leets of Stanford University. Leets recruited Jewish and LGBT college students to read several anti-Semitic and homophobic slurs all drawn from real situations. The subjects then answered questions about how they would have responded if they themselves had been the targets of these messages. Interestingly, a common response by the students was that the “hate speech” would have had “no effect” upon them in either the short run or the long run. Many of the participants also expressed the belief that the speaker was motivated by ignorance, “and therefore should be the object of pity, not anger” (124).

A national survey of incoming first-year college students conducted by the UCLA Higher Education Research Institute found that “the entering freshman class of 2015 ranks among the most ambitious” in the areas of student activism, political and civic engagement. The study notes that this particular class of incoming first-years had witnessed “protests and outcries on college campuses and in communities” in response to “local incidents of bias and discrimination.” These students did not respond to “hate speech” and bias crimes with withdrawal and depression, but rather with engagement and dialogue. Such speech seems to foster political engagement within the larger community, a necessary component of a healthy democracy.

Although these studies focus on college students, Strossen notes that resources for developing one’s ability to resist the potentially negative effects of hateful speech are available to all. These tools include cognitive-behavioral therapy techniques for reducing anxiety or other negative reactions that might result from stressful situations (including exposure to “hate speech”), education about utilizing social media to respond to “hate speech,” and providing access to supportive organizations and other resources. Education and other responses may turn a negative experience into a hard-won moment in personal growth.

Strossen also addresses the question of whether “hate speech” fosters hateful and discriminatory attitudes and actions among those who hear it. She notes that “a comprehensive review of social science research about the potential links between media messages and audience behavior concluded that the effects on audience behavior are ‘weak and affect only a small percentage of audience members’” (127).

We should keep in mind that speech does not force people to act badly. Those who hear extreme utterances are responsible for their subsequent actions. British writer Kenan Malik remarks:

Racists are, of course, influenced by racist talk. It is they, however, who bear responsibility for translating racist talk into racist action. Ironically, for all the talk of using free speech responsibly, the real consequence of the demand for censorship is to moderate the responsibility of individuals for their actions.

If creators were held responsible for the anti-social acts that some individuals committed after viewing the material, “certainly neither the Bible nor the Qu’ran” would be safe, as “both have been accused of instigating countless individual and mass crimes” (128).

In summary, we should not outlaw speech because it might have bad effects. This approach would allow government to punish speech because it disfavors the speaker or the message without directly acknowledging this motive. Moreover, “given the endless array of speech about public concerns that could have such an impact, any other rule would largely muzzle democratic discourse” (127).

This the third post in series on Nadine Strossen’s new book, Hate Speech. The first and second posts may be found here and here.

In his Election Day tweet attacking Rep. Mark Sanford, President Trump declared that Sanford’s opponent, Katie Arrington, “is tough on crime and will continue our fight to lower taxes.” Well, maybe. She doesn’t mention either issue on her campaign website. (In fact, she has nothing but bland buzzwords about any issue.)

This tweet is typical. It seems like every time Trump tweets an endorsement or a criticism of a candidate, he calls the candidate “strong (or weak) on crime.” I count 60 Trump tweets since his inauguration that use the word “crime.” Some complain that he is being investigated for a “made up, phony crime” or charge Hillary Clinton with “many crimes.” But most seem to relate to a candidate: Dan Donovan is “strong on Borders & Crime.” Kevin Cramer of North Dakota is “strong on Crime & Borders.” Doug Jones is “WEAK on Crime.” Adam Laxalt is “tough on crime!” “Chuck and Nancy…are weak on Crime.” Ralph Northam is “weak on crime.” Also “VERY weak on crime!” “Keep our country out of the hands of High Tax, High Crime Nancy Pelosi.” And so on.

It’s not obvious that this makes political sense. Candidates aren’t talking much about crime, perhaps because they recognize the substantial decline in crime rates. In numerous Gallup polls over the past year, only 2 to 4 percent of Americans have identified crime as the country’s most important problem. Though about 50 percent of people say they worry a great deal about crime when asked that question directly.

But here’s the thing. Crime in the United States is in fact way down. 

Here’s a long-term look at the most visible crime, homicide:

Here’s a picture of broader crime rates:

And yet, as the same source illustrated, at the very time when crime rates had fallen steadily and substantially for 20 years, 68 percent of Americans said the national crime rate was getting worse. (Crime rates continued to fall after 2011, though there was an uptick in murders in 2015 and 2016. The rate appears to have fallen in 2017.)

Of course, the president is better informed than average Americans. Surely White House staff have explained the crime statistics to President Trump. So why does he talk about “this American carnage” and pound away at the “crime” issue when endorsing candidates who never talk about it? Perhaps it’s part of his continuing use of racially charged language. Perhaps “crime and borders” is just shorthand for the kinds of social change he thinks his voters fear. Or maybe it reflects the fact that he grew up in New York City during a time of sharply rising crime. We all get ideas in our youth (“American cars aren’t well made”) that may stick with us even us as the facts change.

Whatever the reason, it seems curious that he so often cites “strong and crime” as the reason to support political candidates who haven’t talked about crime.

This morning, the Supreme Court ruled 7–2 that a Minnesota law banning “political” apparel at polling places violates the First Amendment. This was ultimately an easy case, as it should have been all along, and this decision was predictable after oral argument.

Obviously voters shouldn’t be allowed to harass, intimidate, misdirect, or otherwise interfere with other voters — and politicking or electioneering can be disruptive, so there’s nothing wrong with restricting that. But merely wearing a “political” hat or T‑shirt doesn’t do any of those things, which are covered by other laws anyway. As Cato argued in our amicus brief, a complete ban on political expression should be met with the most searching judicial inquiry, regardless of the setting.

In this time when the freedom of speech is becoming an increasingly controversial idea, the Supreme Court did well to remind us that the First Amendment protects expression even and especially when Americans go to vote.

In his prime tweeting time, bright and early last Monday, President Trump proclaimed:

“Numerous legal scholars?” I harrumphed to myself: “come on.” Given that no president has ever been crazy enough to try it, the self-pardon is a novel question of constitutional law. When I first looked into the issue last year, I could find only two law review articles devoted to the subject, one pro, one con. 

But sure enough, in the week that followed, “numerous legal scholars” chimed in with impressive confidence. Jack Goldsmith has a useful roundup over at Lawfare, noting that while the “constitutional text does not speak overtly to the issue and there is no judicial precedent on point… that doesn’t stop people from voicing strong opinions” on each side of the issue.

Since Goldsmith’s post, two more right-leaning legal heavyweights have made the case for the self-pardoning power. In the Wall Street Journal, Richard Epstein insists that Article II, Section 2, allows the president to issue himself a get-out-of-jail-free card, but—not to worry—we’ll always have “the powerful check public opinion places on the president.” And in a Washington Post oped that ran Friday, former 10th Circuit judge Michael W. McConnell argues that “presidents do have the constitutional authority to pardon themselves.”

The main piece of evidence McConnell offers to support that proposition is a September 15, 1787 exchange between Edmund Randolph and James Wilson at the Constitutional Convention. As captured in Madison’s notes, it went like this:

Mr. RANDOLPH moved to “except cases of treason” [from the reach of the pardon power]. The prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traytors may be his own instruments.

Col. MASON supported the motion.

Mr. Govr. MORRIS had rather there should be no pardon for treason, than let the power devolve on the Legislature.

Mr. WILSON. Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he be himself a party to the guilt he can be impeached and prosecuted.

Q.E.D., apparently. “The framers of the Constitution thus specifically contemplated and debated the prospect that a president might be guilty of an offense and use the pardon power to clear himself,” McConnell writes. 

That is… not at all clear. The Randolph-Wilson exchange could just as easily be read to refer to the president’s power to pardon co-conspirators (the “Traytors” he’s in league with), as in a similar exchange, also featuring George Mason, at the Virginia Ratifying Convention the next summer. Renewing Randolph’s objection, Mason warned that the president “may frequently pardon crimes which were advised by himself…. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?” (If he’d understood the September 15 conversation the way McConnell does, Mason might have strengthened the point by adding “he can even pardon himself!”) 

Professor McConnell insists that when Wilson said the president “can be impeached and prosecuted,” he meant “prosecuted before the Senate,” i.e., in an impeachment trial. Maybe! But what makes him so sure? It seems just as likely that Wilson is referring to criminal prosecution, per (what became) Article I, sec. 3, cl. 7, under which a civil officer convicted in an impeachment trial “shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.” 

In the leading (possibly lone) law review article supporting the constitutionality of self-pardons, the authors have a different take on the Randolph-Wilson colloquy. In their reading of the passage: “while not addressing self-pardons directly, there is a clear indication that pardons were available to protect one’s cohorts in a treason attempt. Wilson further argued that if the President committed treason, he could be impeached and even prosecuted after impeachment” [emphasis added]. Brian Kalt, author of the best full-length case against the presidential self-pardon, points out that “When Randolph suggested the possibility of presidential treason, his solution was to eliminate the treason pardon, not to prohibit self-pardons, which would have been a more direct solution.” He further notes that “the self-pardon was nowhere mentioned in the debates.”

But let’s say McConnell is spot-on about what the Randolph-Wilson exchange signified. If so, we have, at most, one example of the Framers implicitly recognizing a presidential power to self-pardon, in a forum governed by secrecy, whose deliberations weren’t directly available to the ratifiers, who, in turn showed no evidence of sharing that understanding. On the other side, we have textual ambiguity, historical silence, and the fact that the underlying rationale for the pardon power—“humanity and good policy”—would seem to be weakest when the president’s letting himself off the hook. Is that one piece of evidence enough? Is that how originalism works? Libertarian legal scholar Randy Barnett has argued the Constitution should be interpreted in light of a “Presumption of Liberty.” But what interpretive principle is at work here? In disputed cases, a tie goes to the president? A Presumption of Executive Power? 

Neither Epstein nor McConnell address the best argument against the constitutionality of the self-pardon, one based on the text of Article II, Section 2 itself: The President shall have Power to grant Reprieves and Pardons for Offenses against the United States.” “Grant” implies a grantor and a grantee, “pardon,” a donor and a recipient. The power is “inherently bilateral,” the argument goes.

McConnell’s right, however, that some of the arguments on the other side aren’t very good. The Nixon-era Justice Department memorandum denying a self pardon power, he notes, rests on a single line of analysis, rejecting the power because it violates “the fundamental rule that no one may be a judge in his own case.”

But here’s an interesting wrinkle: that same memo suggests—far more credibly—that the president can accomplish the same end, via the 25th Amendment, provided the vice president is willing to go along.

This is a very different “25th Amendment Solution” than the one that Never Trumpers and #Resistance leaders favor. In their version, Mike Pence and a majority of the Cabinet or “such other body as Congress may by law provide” invoke Section 4 of the amendment to declare the president “unable to discharge the powers and duties of his office.” 

The DOJ memo focuses instead on Section 3, which allows the president to make the call himself, stepping aside temporarily while the vice president steps in. So far, Section 3 has served as the Constitution’s “Colonoscopy Clause,” invoked mainly when presidents are getting their polyps snipped. According to the memo, however, 

A different approach to the pardoning problem could be taken under Section 3 of the Twenty-Fifth Amendment. If the President declared that he was temporarily unable to perform the duties of his office, the Vice President would become Acting President and as such he could pardon the President. Thereafter the President could either resign or resume the duties of his office.

As “Acting President,” the veep accedes to all the powers of the office, including the power to pardon. If Trump could strike a deal with Mike Pence, then a de facto self-pardon, minus the legal uncertainty, could be accomplished in an afternoon. Nor would he run any great risk if Pence refused to hold up his end of the corrupt bargain. Either way, Trump could reassume his post as quickly as he could fire off a letter to Congress.

As with the #Resistance version, this twist on the 25th Amendment Solution is the stuff of political thrillers: it’s quite unlikely to happen in real life. Both versions require Pence’s cooperation to get off the ground. In the Section 4 scenario, he has to be willing to shiv his boss; the Section 3 scheme requires Pence to torch his own political career. Still, if you had to pick which “Solution” was more likely… take a look at one of those Cabinet meeting videos, then place your bet.

From the St. Johnsbury, Vermont Caledonian Record:

divHT: Ethan Allan Institute founder and vice president John McClaughry.

A story in today’s Wall Street Journal discusses the latest report from the Organization for Economic Cooperation and Development on ”prime age” (25–54) labor-force participation rates among its 35 member countries through the last quarter of 2017. While the US rate has improved, it remains below the average OECD rate, lagging behind such developed countries as Japan and the UK. What’s puzzling is why the authors of the report decided to weigh in on the opioid overdose issue.

Noting that per capita opioid prescriptions in the US are “significantly higher” than in other OECD countries, the report finds that participation rates for all adults (not limited to prime age) vary from state to state. The rate was lowest in West Virginia at 53 percent, and highest in North Dakota at 71 percent. It mentioned that opioid prescription rates are “generally higher” in those states with lower labor participation rates, leading it to declare that the use of opioid drugs “appears to be connected” to labor market conditions.

The number of opioid prescriptions has been dropping steadily in the US since it peaked in 2010. In fact, high-dose opioid prescriptions are down over 41 percent. An April 2018 report from the American Medical Association trumpeted a 22 percent decrease in opioid prescriptions between 2013 and 2017. 

The false narrative dominating the media and driving opioid policy blames opioid abuse and overdoses on doctors addicting their patients to pain pills. The near quadrupling of the sales of prescription opioids between 1999 and 2014 is often used to help make the case. 

Yet correlation does not imply causation. The AMA made note of this in its April report on the dramatic drop in prescriptions when it stated:

It is notable that every state has experienced a decrease, but this is tempered by the fact that deaths related to heroin and illicit fentanyl are increasing at a staggering rate, and deaths related to prescription opioids also continue to rise. These statistics again prove that simply decreasing prescription opioid supplies will not end the epidemic.

Data from the Centers for Disease Control and Prevention show that overdoses—especially from fentanyl and heroin—continue to soar as prescription rates decline on the state level as well. 

The principle that correlation does not imply causation also applies to the observations in the OECD report.

The OECD report mentions that the overall labor-force participation rate tends to be lower in states where disability rates are higher. And West Virginia is a leader among states with respect to the percentage of its population on Social Security Disability benefits at 3.9 percent. It therefore points to a “possible connection between drug use and disability,” adding “addiction ultimately impairs participation.” It is certainly reasonable to expect that patients disabled by chronic severe pain conditions will be prescribed opioids. But there is no evidence that opioid use increases disability rates. In fact, Cochrane systematic studies in 2010 and 2012 found an addiction rate of approximately 1 percent in chronic non-cancer pain patients on long-term opioids. And many chronic pain patients are gainfully employed but have to stop working when they are cut-off from their opioids and their pain becomes debilitating. 

As I have written here and here, the overdose crisis was never about doctors and patients. It has always been primarily the result of non-medical users accessing drugs in the dangerous black market that results from drug prohibition.

Because correlation does not imply causation the OECD report carefully avoids drawing conclusions by using phrases like “appears to be connected” and “generally higher.” But its allusion to a connection between opioid prescribing and the labor participation rate is intellectually irresponsible and seems a gratuitous attempt to patronize the opioid policy establishment.