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Who's 'The Biggest Loser' in 2020?

TownHall Latest columns - Thu, 09/12/2019 - 19:01
It was another great week for President Donald Trump.

God Takes a Beating on Television

TownHall Latest columns - Thu, 09/12/2019 - 19:01
It's a fallacy to suggest that in the news media, business trumps politics.

Buttigieg Distorts Logic and Scripture on Abortion

TownHall Latest columns - Thu, 09/12/2019 - 19:01
Buttigieg says the GOP likes "to cloak itself in their language of religion."

Trump: ‘I don’t believe’ Israel is spying on US

Fox News (Politics) - Thu, 09/12/2019 - 18:17
President Trump cast doubt Thursday on a report that the Israeli government may be spying on the United States, touting the strength of the U.S.-Israel relationship.

US to share name of Saudi suspected of aiding 9/11 attackers

Fox News (Politics) - Thu, 09/12/2019 - 18:11
The Justice Department decided Thursday that it would reveal a key new development in a lawsuit against Saudi Arabia for its alleged involvement in the 9/11 attacks - the previously redacted identity of an individual believed to be connected to the Saudi government who aided the hijackers. 

Gabbard warns that DNC debate qualifications could make voters think ‘the fix is already in’

Fox News (Politics) - Thu, 09/12/2019 - 18:00
Democratic presidential candidate Rep. Tulsi Gabbard, D-Hawaii, will not be participating in Thursday night’s debate, and she accused the Democratic National Committee’s qualification system of sowing distrust among voters.

Knives were out for Bolton at all levels, from Mulvaney aide on up

Fox News (Politics) - Thu, 09/12/2019 - 17:35
The departure of national security adviser John Bolton this week was the culmination of months of sharp-elbowed conflicts between the foreign policy hawk and officials at all levels of the administration -- with sources revealing even a quietly influential aide to the White House chief of staff was lobbying for his ouster. 

Ted Cruz to oppose Trump appeals court nominee over religious liberty concerns: report

Fox News (Politics) - Thu, 09/12/2019 - 17:28
Sen. Ted Cruz, R-Texas, plans to oppose one of President Trump's nominees for the 5th Circuit Court of Appeals due to concerns over his record on religious liberty.

At Houston debate, surging Warren is toe-to-toe with Biden for first time

Fox News (Politics) - Thu, 09/12/2019 - 17:24
A surging Elizabeth Warren will have her first chance to confront primary front-runner Joe Biden on the debate stage Thursday night, as the top 10 Democrats running for president square off in Houston at a critical moment in the race.

Biden campaign rejects moderate label, swipes at plan-obsessed rivals ahead of debate

Fox News (Politics) - Thu, 09/12/2019 - 16:51
The Biden campaign previewed its debate strategy for Thursday night by making at least two things clear: The former vice president will reject efforts to cast him as an incremental moderate. And he'll call on his rivals to do more than just wave around an arsenal of policy proposals.

Lawmakers urge release of ex-Marine detained in Russia on espionage charges

Fox News (Politics) - Thu, 09/12/2019 - 16:24
Members of Congress on Thursday introduced a bipartisan measure calling for the release of former U.S. Marine Paul Whelan, who has been detained in Russia since December on espionage charges amid deteriorating health and tough conditions.

Supreme Court Justice Neil Gorsuch on the Constitution, law and his fellow Justices

Fox News (Politics) - Thu, 09/12/2019 - 15:53
Supreme Court Justice Neil Gorsuch labels himself an “Originalist.”

Trump administration lifts hold on $250M in military aid for Ukraine

Fox News (Politics) - Thu, 09/12/2019 - 15:29
The Trump administration has released $250 million in military aid for Ukraine, lawmakers announced Thursday as they were set to rebuke the administration for initially holding up the money.

Education Professors Misrepresent School Choice Yet Again

Cato Recent Op Eds - Thu, 09/12/2019 - 15:20

Corey A. DeAngelis

They say some people never learn. Just two months ago, education professors Christopher Lubienski and Joel Malin published a piece in The Conversation completely misrepresenting the scientific evidence on school vouchers. Although University of Arkansas Professor Patrick J. Wolf and I individually corrected their erroneous claims, they are back at it again. And the misrepresentation and cherry-picking are just as shocking. Let’s set the record straight.

In their most recent piece, Lubienski and Malin claimed “seven of the nine [school choice studies since 2015] found that voucher students saw relative learning losses,” while none showed gains. What nine studies were they talking about? They didn’t specify in the piece. They have not clarified publicly on social media either. At first, I could not come up with a list of school voucher studies since 2015 that came out to “seven out of nine” negative and met any reasonable definition of “rigorous.”

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7 of the 9 most recent #SchoolVoucher studies found that students saw relative learning losses (none of the 9 showed relative gains). Raises the question for policymakers/researchers of "do no harm"? https://t.co/6YiCwQUn0n #edchat #edreform

— Chris Lubienski (@CLub_edu) August 30, 2019 ,

But then it hit me. Lubienski and Malin triple counted the D.C. evaluation and quadruple counted the Louisiana evaluation. They also included non-experimental studies from Ohio and Indiana. That got them to “seven” negative (two years of the D.C. evaluation, three years of the Louisiana evaluation, the full Ohio evaluation, and the full Indiana evaluation) and two with no effects (the most recent year of the D.C. evaluation and the third year of the Louisiana evaluation). I've seen confirmation from Lubienski, the lead author, that this was their count strategy, and it's the only possible way to get to their supposed "7 out of 9 negative rigorous studies since 2015." It’s clearly misleading to count results from one set of students more than once, let alone three or four times.

No scholar counts studies that way. Scholars focus only on the final report from an individual study, once that study is complete, since it includes all of the results from the study’s preliminary reports plus the final results. In multiyear studies of school voucher programs, the effects of the initiative on student achievement accumulate over time. The effect in a given outcome year is the sum of the effect that program had on students in the study in prior years plus the effect it had on them in the most recent outcome year.

A simple example from banking demonstrates how that works. Assume that you invested $100 in a three-year Certificate of Deposit that paid 5% simple interest annually. After one year, your CD would be worth $105. After two years, it would be worth $110. At the end of the three-year investment period, your CD would be worth $115. How much money did you make on the three-year investment? Most of us would answer $15. Lubienski and Malin would claim that the investor earned $30 in interest, using the same illogical approach that they employed in counting school voucher studies.

Even Lubienski himself, in co-authored reviews of school voucher studies in 2008 and 2016, counted studies in the conventional way, only once, drawing from each study’s final report.

Counting studies multiple times also makes it look like there has been a mountain of rigorous negative evidence on the topic since 2015. It also makes the proportion of negative studies appear higher. Counting the most recent year of these four evaluations would give you “3 out of 4 negative” (on test scores), which is a lower proportion than their “7 out of 9 negative” claim. But that’s not all.

Were the four evaluations they cited the only rigorous studies linking school vouchers to test scores since 2015? Nope.

They forgot three. Each of the omitted studies happened to find positive effects. Anderson and Wolf found positive effects of the D.C. voucher program on reading test scores in a rigorous replication study in 2017. North Carolina State University researchers found positive effects of the North Carolina Opportunity Scholarship Program on math and reading test scores in 2018. And a peer-reviewed study published inWorld Developmentin 2019 found that a private school voucher program in India increased English test scores. Adding these three studies to their list brings the count to three negative, three positive, and one study with no effects on test scores since 2015. It’s indisputably false that “in no case did studies [since 2015] find any statistically positive achievement gains for students using vouchers.”

It only gets worse. In one sentence, the authors cited the D.C. evaluation as negative once again, by claiming that “researchers are consistently seeing large, significant, negative impacts” in “Ohio, Indiana Louisiana, and elsewhere.” In the original piece, posted on Aug. 30, the word “elsewhere” linked to the negative second-year evaluation of the D.C. voucher program. The link on the word “elsewhere” has since been removed, but the meaning of the sentence has not changed. The authors only included evaluations from Ohio, Indiana, Louisiana, and D.C. in their review, so the word “elsewhere” still must mean D.C. Since the D.C. evaluation found no effects on test scores, the sentence remains false.

Again, the authors state that “initial hopes that [test score] losses were temporary have not panned out” by solely citing the negative evaluation of the Louisiana voucher program. But the latest evaluation of the D.C. voucher program showed just that. Of course, citing the latest evaluation from D.C. would have been self-refuting.

The authors also claimed that giving low-income families more educational options has “negative consequences” for “poor children.” Why would giving low-income families additional educational options harm their children? Only Lubienski and Malin know their exact reasoning, but it might be because they are myopically focusing on test scores while ignoring the mountain of evidence showing that giving disadvantaged families more options leads to improvements in safetycollege enrollmentcivic outcomesracial integration, and crime reduction.

Kids are more than test scores. Contrary to what some school choice critics believe, even the least advantaged families know better than standardized tests. School choice advocates and opponents alike know test scores aren’t everything. Just last year, Lubienski conceded that it’s clear that few people “argue for ‘exclusive or primary’ use of test scores to evaluate [school choice] programs” and that educators have been suggesting that standardized tests are not great measures of success “for decades.” So why would Lubienski and Malin turn around and use test scores as the exclusive metric of success in their reviews? I’ll let you decide.

Carson cleared as HUD inspector general finds no evidence of misconduct in furniture controversy

Fox News (Politics) - Thu, 09/12/2019 - 09:46
EXCLUSIVE: The inspector general for the Department of Housing and Urban Development said in a new report that investigators found no evidence of misconduct by Secretary Ben Carson concerning a controversial order for expensive furniture in late 2017.

Trump campaign flying banner over debate site to blast 2020 Dems as socialists

Fox News (Politics) - Thu, 09/12/2019 - 08:59
President Trump’s re-election campaign is going up in the air to hammer home their message that the Democratic presidential candidates are pushing a socialist agenda.

Engaged Trump Judges May Restore the Role of the Courts

Cato Recent Op Eds - Thu, 09/12/2019 - 08:43

Roger Pilon

What so far has been the impact of President Donald Trump's judicial appointments? The answer, I suggest, despite doomsday prophesies from progressives, is that except for a decision here or there, it's too soon for any solid assessment to be made.

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So rather than search for clues by parsing the U.S. Supreme Court''s recent decisions, much less dive into the courts below where so many decisions become final and where Trump is making many important appointments, I''d like to step back and focus instead on the larger picture, the better perhaps to speculate more broadly on the future impact of Trump''s appointments. And for that, we should note at the outset what hardly needs noting, that in recent decades the battle over the courts, and over the Supreme Court in particular, has grown increasingly acrimonious, even brutal.

Witness the confirmation fights over Justice Neil Gorsuch and, especially, Justice Brett Kavanaugh. What emerged most sharply from those and several earlier hearings were two very different views of the role of the judge. And the progressive side was no better captured than during the Gorsuch hearings when Senate Judiciary Committee Democrats, along with their outside supporters, repeatedly charged the nominee with ruling for corporations and against workers, minorities, women and, especially, the "little guy." Ranking member Sen. Dianne Feinstein, D-Calif., echoed often across her side of the committee, put it plainly when she asked Gorsuch: "How do we have confidence in you, that you won''t be just for the big corporations? That you will be for the little man?"

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If Congress can’t or won’t act, in the face of an ever-growing $22 trillion national debt that soon will bury us, can this Leviathan be, if not overturned, at least chipped away by the court?

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The implications of that view for the rule of law are stark. They amount to asking Lady Justice to remove her blindfold, to rule based not on the law but on who the parties are. Perhaps it was Chief Justice John Roberts in his own confirmation hearings in 2005 who stated the other side most succinctly, if metaphorically, when he likened the role of a judge to that of an umpire calling balls and strikes by the rules of the game. The rules of our game are set most generally, of course, by the U.S. Constitution.

For more than a century, progressives have read that document largely as "living," as an empty vessel to be filled by transient majorities or, when the people get it wrong ideologically, by executive branch agencies or the courts. Conservatives, by contrast, have seen the document as rich in content, initially as a brake on majoritarianism, later as a font of majoritarianism, and more recently as a subtle mix of the two. I submit that the key to what is going on with Trump’s judicial appointments may be found in that conservative evolution. To see that, however, we need a brief overview of constitutional theory and history by way of context, focusing on the role of the courts.

From Liberty to Leviathan — and Back?

Drawing on the Declaration of Independence’s natural rights theory, the Constitution sought to secure the rule of law and limit the scope of politics by instituting a limited government, its law and structural limits policed by politics, but if needed by the courts. The Civil War amendments — as a matter of law, at least, practice aside — corrected the document’s cardinal sin, its oblique recognition of slavery, by providing federal checks on the states, especially through the 14th Amendment’s privileges or immunities clause.

But late in the 19th century, progressives began emerging from the elite schools of the Northeast to challenge that political order. Social engineers inspired by the new social sciences, they thought they could order our lives through statutory law better than we ourselves could under the common law. Planners all, their spirit was captured late in the era, in 1932, by Rexford Tugwell, soon to become one of the principal architects of the New Deal: "fundamental changes of attitude," he wrote, "new disciplines, revised legal structures, unaccustomed limitations on activity, are all necessary if we are to plan. This amounts, in fact, to the abandonment, finally, of laissez faire. It amounts, practically, to the abolition of ‘business.’"[1]

Standing athwart that agenda, of course, was the "Old Court," famously in 1905, and rightly too, in Lochner v. New York, though unevenly over the next three decades. But following President Franklin Roosevelt’s infamous court-packing threat soon after his 1936 landslide reelection, the court began effectively rewriting the Constitution, eviscerating the crucial enumerated powers doctrine in 1937, bifurcating the Bill of Rights while crafting a bifurcated theory of judicial review in 1938, and jettisoning the nondelegation doctrine in 1943. The modern executive state was thus born.

It was Tugwell again, 30 years later, who best captured the constitutional point: "To the extent that these [New Deal policies] developed, they were tortured interpretations of a document intended to prevent them."[2] They knew exactly what they were doing: replacing the law of limited government with the politics of effectively unlimited government.

With that, the course was set for today. What followed was a cowed, deferential court. But that gave way in the mid-1950s to a more active court — and not a moment too soon, especially concerning civil rights and criminal procedure. In addition to finding rights long overdue to be found, however, the court found others nowhere to be found, even among our unenumerated rights pursuant to the Ninth Amendment. That led to a backlash among conservatives who had been all but eclipsed by the New Deal juggernaut but were now slowly reemerging and organizing.

An important moment as that process was unfolding was the publication in 1962 of Alexander Bickel’s "The Least Dangerous Branch," which spotlighted the court’s "countermajoritarian difficulty" and commended the "passive virtues" for judges. Robert Bork would later credit his Yale Law colleague Bickel for much of his own constitutional thinking, and for good reason: Reaching back to the judicial deference that had characterized the court in the immediate aftermath of its New Deal constitutional revolution, Bickel had articulated principles that underpinned the emerging conservative "judicial restraint" school and would continue to do so for decades to come.[3]

But in reaching back, conservatives didn’t simply adopt the deferential posture of the New Deal court. They went after the Old Court too, joining liberals in condemning the Lochner Era. That left them, ironically, in an altogether untenable position, for as a policy matter, conservatives had long stood for limited, fiscally responsible government.

Yet in the name of majoritarian democracy, they now had effectively disarmed the court, denying it the power to check the political branches as provided for by the Constitution. Their misreading of the document meant that governmental powers and programs would continue to grow beyond anything remotely authorized by the Constitution, programs that in time would drive the nation, states, and cities toward bankruptcy, as we’re seeing today with apparently uncontrollable public spending.

There things stood when Bork came before the Senate Judiciary Committee in 1987 for the first of what would be a series of stormy confirmation hearings that continue to this day. Since Bork would be replacing Justice Lewis Powell on the Supreme Court, seen as a swing vote on social issues, the long knives were out, no more infamously captured than in the outrageous caricature of Bork’s views by Sen. Ted Kennedy, D-Mass.[4] But that set the tone for several of the hearings that have followed, particularly for Republican nominees.[5]

Their tactics aside, progressive liberals were understandably concerned. With the prospect of Bork sitting on the court, they saw their half-century hold over our third branch of government coming to an end. And that fear has animated them ever since. What they have too little noticed, however, is shifts that have slowly taken place on the other side, and that will bring us to what may be going on with the Trump appointments.

Conservative Strands

From the time it began reemerging after World War II, into a world dominated by post-New Deal liberalism, the conservative movement has included various conservatives and classical liberals or libertarians, "various" being the operative word. That made for an uneasy coalition at times, including in the movement’s legal and constitutional reaches where the proper role of the courts came often to divide members. Conservatives in the Bickel and Bork mold made their peace with the demise of enumerated powers, seeing it as a lost cause.

Their focus instead was on what they saw as liberal judicial activism over rights. Fearing rights activism, they urged judges to secure only those rights that were clearly in the Constitution. Thus, only on the rights side, not on powers, for the most part, did they differ from modern liberals who were urging judges to find rights consistent with their "living," evolving political agenda, whether constitutionally cognizable or not, and to deny or disparage rights inconsistent with that agenda — property rights and economic liberties, for example.

Such were things by the mid-1970s when a tiny vanguard of those of us on the classical liberal or libertarian side of the movement said, "a pox on both your houses." Thus, we began slowly to develop the theoretical foundations for a third school of thought that would eventually be called judicial engagement. We urged judges, when practical, to revive the doctrine of enumerated powers, to police the administrative state, and to secure those rights we retained when we instituted government, enumerated and unenumerated alike, as derived from the theory of natural rights that stands behind and informs the Constitution as corrected by the Civil War amendments, not the version that emerged from the New Deal court’s political legerdemain.[6]

This third school initially occupied only a small corner of the larger conservative movement. But as that movement grew, so too did its institutions: think tanks like The Heritage Foundation and the Cato Institute came on the scene; free-market public-interest law groups like the Pacific Legal Foundation and the Institute for Justice were created; and, most important for our purposes, in 1982 a small band of ideologically isolated conservative and libertarian law students at Yale and the University of Chicago created the Federalist Society.

Today, the Federalist Society comprises some 70,000 members, student chapters in nearly every law school in the country, lawyer chapters in many cities, and a faculty division. Yet it’s still often embattled in the larger legal world, including in many law schools where student chapters sometimes have difficulty finding a faculty member willing to sponsor the chapter. All of which brings us back to the Trump administration and its judicial appointments.

The List and its Implications

On April 2, 2016, Trump, by then the presumptive Republican presidential nominee, told The Washington Post that he planned "to announce a list of 10 or 12 judges from which he would pick to fill vacancies on the Supreme Court to allay concerns from conservatives that he wouldn’t choose someone to their liking." He added that he had gotten names from the Federalist Society and The Heritage Foundation.[7]

When the first list was released on May 18, 2016, the reaction from progressives was swift: "Nan Aron, the president of the liberal Alliance for Justice Action Council, deplored Mr. Trump’s choice of potential justices as ‘dangerous,’" the New York Times reported. "‘The list includes some of the most extreme conservatives on the federal bench today,’ she said."[8]

Dangerous? Extreme? Doubtless, those terms have political salience. But like so many of the concerns we heard during the Gorsuch and Kavanaugh hearings — about the "little man," for example — they tell us little except, possibly, that many liberals may still be seeing their opponents through a Borkian lens, when we’re largely past that.

And it isn’t simply that Trump’s list includes mostly younger potential nominees who will serve far into the future. It’s that these lawyers came of age immersed in more than four decades of spirited debate within the Federalist Society, the think tanks and beyond. When Bork was nominated, judicial restraint dominated conservative thought. Today, judicial engagement is as likely to be advocated — and more likely as the generations change. And therein may be the impact down the road of Trump’s judicial nominees.

Look at many of the people Trump has already put on the courts below — Don Willett, James Ho, Neomi Rao, I could go on. Like Gorsuch and Kavanaugh, they’re not the "ABA lawyers" of old, recommended for the courts by their state’s senators. These are justices and judges steeped in the nation’s first principles and in the history that has given us Leviathan. It’s not inconceivable that over time, these new justices and judges, less "restrained" than the generation they succeed, will be less reluctant than their predecessors to take on that behemoth, to revive the doctrine of enumerated powers, to go after the administrative state, and to secure the full range of liberties that the Constitution promises.

The court, for example, may soon extend its scrutiny to congressional actions that empower the modern administrative state, starting with the nondelegation doctrine. Witness the U.S. Supreme Court's just-decided Gundy v. United States with the long, devastating Justice Gorsuch dissent, to say nothing of Justice Samuel Alito’s short "concurrence" inviting a future challenge to the doctrine. And the administrative state itself, through which progressives have regularly worked their will, may little longer be insulated from judicial scrutiny by the court’s deference doctrines.

In this Supreme Court term’s Kisor v. Wilkie, for example, it was again Justice Gorsuch who led the attack on Auer deference, urging the court to "stop this business of making up excuses for judges to abdicate their job of interpreting the law." Can Chevron deference be far behind?

If Congress can’t or won’t act, in the face of an ever-growing $22 trillion national debt that soon will bury us, can this Leviathan be, if not overturned, at least chipped away by the court? After eight decades of largely unconstitutional government expansion, it’s a question worth asking.

Roger Pilon holds the Cato Institute's B. Kenneth Simon Chair in Constitutional Studies.

House Dems move on Trump impeachment, as Republicans mock ‘giant Instagram filter’ hiding disarray

Fox News (Politics) - Thu, 09/12/2019 - 08:32
House Judiciary Democrats on Thursday took a big step in their Trump impeachment push as they set the ground rules for a formal committee inquiry -- but Republicans laughed it off as a “giant Instagram filter” to hide how divided Democrats truly are on the question. 

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