Disparate Impact and the Progressive Con

In their single minded drive to transform America into a collectivist polity, Democrats routinely brandish disparate impact studies. The claim is that differential outcomes “prove” that America is rotten to the core; that it is irredeemably racist; that America is structurally racist, and that systemic racism is the defining feature of American life. Needless to say the terms are left undefined. Details.

There are some who argue that moderates in the Democratic Party do not really believe these things and that they will tone down the progressive wing of the party. To which I say, where are these “moderates” hiding? Something like 95% of the Democratic caucus favors abortion on demand up to and including the moment of birth, as well as taxpayer funding of same. 

Which brings up an interesting question. How do progressives view the disparate impact of abortions with respect to race? Here it is important to note that progressives now speak in terms of “equity” which refers to outcomes, rather equality which refers to opportunity. 

First, the facts. Black women are far more likely to obtain abortions than white women. In any given year, adjusted for population size, black women are 5 to 6 times more likely to abort than white women. Even adjusting for income differentials, black women are still more likely to abort than white women. In some areas, like New York City, it is so extreme that more black babies are aborted than are born alive. 

So what do progressives have to say about this? Well the response is very interesting, to say the least. The usual arguments are rolled out.  Black women have less access to health care, which by implication means that killing babies in the womb is somehow related to health care. Then there is the argument that black women have lower incomes, black women are subject to racism, etc. See for instance, Atlantic Magazine.

These arguments reveal a lot more than than their proponents may care to admit. Consider the underlying question: if the differential in abortion rates reflects racial discrimination, systemic racism and a lack of racial “equity”, in which direction does the discrimination run? 

Should policy be directed at achieving equal outcomes? If so, how? Should white women receive incentives to increase the abortion take-up rate to achieve parity with black women? Which is to say, should the policy goal be to quintuple the white abortion rate?  Or should black women be discouraged from having abortions? That would imply a policy goal of reducing the black abortion rate by about 80%. Or maybe we should adopt Margaret Sanger’s solution and require people to obtain a permit before being allowed to reproduce. You know, so we have “the right kind” of people. More about which later. 

Now keep in mind that these questions are predicated by applying the disparate impact standard. And according to this standard, policies that are facially neutral need to be evaluated in terms of their consequences. Otherwise hidden biases may slip through. Welcome to Postmodernism.

So let us continue with the analysis. It is clear that the progressive case for disparate impact analysis rests on the assumption that disparate outcomes are ipso facto unacceptable.  Not only that, it assumes that there is such a thing as a “correct” distribution of outcomes; that we know what the correct distribution is, and that we know how to achieve it. We can see how nonsensical this is by an analogy. To wit: tall people are unfairly overrepresented in the NBA.

There is a much deeper problem than the nonsensical disparate impact methodology, which by the way, is a measure of correlation, not causation. The problem is that to apply the methodology requires identifying the correct outcome. Which in turn requires making the judgement that one outcome is desirable and the others undesirable. By this standard, it is not enough to say that people have a free choice in the matter. Equality of opportunity does not count—equality of outcome is the driver, just as it is with respect to income, housing, education and so on. Further, progressives have to consider abortion in non-neutral terms. Which means that, in the progressive world view, abortion is considered a social good. 

That gets us right into John C. Calhoun territory. In seeking to preserve slavery before the Civil War, the South argued that slavery was “a necessary evil”. That calls to mind Bill Clinton’s formulation of keeping abortion “safe, legal and rare”. But as the debate over slavery heated up, the South switched its tune, led by John C. Calhoun. Slavery was, according to Calhoun “a positive good”. 

John C. Calhoun

He went on to say “Never before has the black race of Central Africa, from the dawn of history to the present day, attained a condition so civilized and so improved, not only physically, but morally and intellectually… It came to us in a low, degraded, and savage condition, and in the course of a few generations it has grown up under the fostering care of our institutions.”

That is territory that the abortion rights movement shares with both the alt.right and John C Calhoun of the old South. They argue that unborn fetuses are mere “clumps of cells” certainly not rights bearing human beings worthy of dignity and respect. But I can hear the progressive argument now—human fetuses are “potential” human beings, not actual ones. A distinction without a difference. There is no difference in the fact of DNA in the unborn and the born. We are all headed for our potential.  And we are all going to die. But there is a big difference between a natural death and being killed. 

That aside, today we have a celebration of abortion with the #Shout Your Abortion movement. In fact, Ilyse Hogue of NARAL did just that at the 2016 Democratic National Convention. (See video below). That celebratory posture is also analogous with the territory John C Calhoun occupied vis-a-vis slavery. 

Consider for instance the devastating impact of abortion on the black community. Michael Novak, the Harvard philosophy professor, back in 2002 calculated that the black population would be at least 36% larger were it not for abortion. The black population in the U.S. is now in decline relative to other minorities. 

And that’s just fine with plenty of abortion rights activists, among them the white supremacist Richard Spencer. As he put it, “the people who are having abortions are generally very often black or Hispanic or from very poor circumstances.” White women will avail themselves “when you have a situation like Down Syndrome” which in his view is just fine.

Margaret Sanger

Not to be forgotten is Margaret Sanger, the eugenicist Founder of Planned Parenthood who dreamt up “The Negro Project” specifically designed to restrict black reproduction because, after all, they were “inferior”. And lest we assume that was just in the past and has no relevance today, we should consider the words of Justice Ruth Bader Ginsburg on the subject. 

In an interview with Sunday New York Times Magazine writer Emily Bazelon, Ginsburg said: 

Ruth Bader Ginsburg

“Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.” She then went on to say: “It makes no sense as a national policy to promote birth only among poor people”.

“Populations we have too many of.” Think about that for a minute. And let’s not pretend that she didn’t mean every word of it.

Somewhere John C. Calhoun is smiling.

JFB

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Same Circus, Different Clowns

As roughly everybody knows, on January 6, 2021, then-President Donald J Trump stirred up a crowd by claiming that the most recent presidential election was stolen from him, implying that  Joe Biden’s ascension to the office was illegitimate.  Immediately thereafter a crowd of Trump supporters, some of whom were armed, attacked the Capitol and attempted to stop Congress from carrying out its lawful duty in counting the electoral votes of the several states. Counting those electoral votes was the last formal step in certifying the election, paving the way for Mr. Biden’s inauguration on January 20, 2021.  

In the aftermath, Senate Majority leader Mitch McConnell pinned responsibility for the attack on Trump. Speaker of the House Nancy Pelosi and the Senate minority leader Charles Schumer demanded that Trump ether step down or be forced from office immediately. As in right away, without delay. (See the You Tube video below dated January 12, 2021.)

In the event, Pelosi and Schumer demanded, naturally enough, that someone else take action. When that didn’t work, the House impeached Trump for the second time. The vote came on January 13, 2021, a day after Schumer’s speech. But then a funny thing happened. Speaker Pelosi didn’t get around to sending the article of impeachment to the Senate for 12 days, by which time Biden had been sworn in and Trump had become a private citizen. 

Not only that, the article of impeachment was for incitement. Trump could easily have been impeached for dereliction. He, as Commander-in-Chief, refused to respond to an attack on the seat of government. Moreover he rebuked his own Vice President for refusing to tamper with the states’ electoral votes. Not only are those surely impeachable offenses; the evidence is unassailable.  

As it now stands, after insisting on the immediacy of the situation, Speaker Pelosi took her time sending over a deeply flawed article of impeachment. The trial is not scheduled to begin until February 8, 2021. Moreover, the article she sent over contains two important constitutional issues. The first has to do with the definition of incitement—at what point does a political speech become incitement to violence? The second has to do with impeaching a former president. 

The balance of the evidence suggests that a former president may be impeached, paving the way for a majority vote that would prohibit him from holding office again. But there is sufficient ambiguity to make the case less than clear cut.  

The issue of incitement is more problematic. Did Trump incite his followers to violence? It is my opinion that he did. But having said that, we need to acknowledge several factors. First, restricting the political speech of a sitting politician sets a dangerous precedent when free speech is already under attack. Second, the incitement charge was totally unnecessary to achieve the desired goal, namely securing a conviction in the Senate. Third, because of (presumably) sloppy drafting and the constitutional issues involved, Republicans can dodge the underlying issue. In effect they are being given a low cost opportunity to vote for acquittal. 

An acquittal would allow Trump to argue that once again, he has been exonerated. That is surely not an outcome to be welcomed. But it sure looks like the path of least resistance, due in part to the handiwork of Speaker Pelosi and Majority Leader Schumer. As always they have quashed the national interest in favor of their own narrow political interests.  

JFB

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Malarkey Man

It is a mere 3 days since President Joe Biden took the oath of office and he is already furiously backtracking on his Covid campaign promises. Back on October 29, 2020 at a campaign rally in Coconut Creek FL, Biden tore into President Trump’s handling of the virus—a task that didn’t really require much effort. Anyway, candidate Biden pledged “I’m not going to shut down the economy, I’m not going to shut down the country, but I am going to shut down the virus.”

President Joe Biden

Sometime after January 20, Biden discovered that his desk in the Oval Office did not have a red button labeled “Virus Killer”. And so the reset began. At his Friday press conference Biden proceeded to announce “there’s nothing we can do to change the trajectory of the pandemic in the next several months.” He went on to project that Coronavirus deaths would rise by another 50% to reach “well over 600,000.” 

In the meantime he did say that he is sticking to his target of 100 million vaccinations delivered in his first hundred days in office. Left unmentioned is that we are already vaccinating about 960,000 people daily. Which means that Biden means to raise the vaccination rate all of 4% over the next several months. Pretty impressive for a guy who promised to make the coronavirus his #1 priority. 

But he has been busy on other fronts. Like gender identity. The executive order he just signed reads as follows: “Children should be able to learn without worrying about whether they will be denied access to the rest room, the locker room, or school sports. . . . All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.” 

Note that the executive order references gender identity, not sex. Meaning that you don’t have to be a girl to play on a girl’s sports team; you merely have to self-identify as female. Which, among other things, means that girl’s sports are essentially over. They will be dominated by boys claiming to be girls. 

The Biden team is busy pretending that the President is merely enforcing the Supreme Court’s Bostock  v. Clayton County decision handed down in 2020. But in that 6-3 decision, the majority opinion for which was authored by Justice Gorsuch, the Justices took pains to say that it was limited to employment status  and had no bearing on “sex-segregated bathrooms, locker rooms, and dress codes”. 

The Court went further to note that their decision was limited to the language of Title VII of the 1964 Civil Rights Act. The majority specifically noted that under Title IX of the 1972 amendments “we do not purport to address bathrooms, locker rooms, or anything else of the kind.” (See Abigail Shrier in the Wall Street Journal here.)

As bad as this is, it’s actually even worse than it appears at first glance. On the matter of gender identity Mr Biden has gone so far as to say that “in prison, your sexual identity is defined by what you say, not what the prison says.” Which effectively means that sex (or gender) is simply a social construct; biology is not determinative.

This conceit denies the profound difference between men and women. Not only that, it is part of a much grander project; namely the utopian transformation of society into one without differences, and therefore without hierarchies. 

It is a vision of human beings as undifferentiated cogs in a machine, the equivalent of ants living in an ant colony. There is no room for individualism, for decency, for joy, for love; only for the dream which inevitably leads to marching orders. It is a vision as old as the hills and has always and everywhere led to authoritarianism and human misery. 

But of course there will always be hierarchies. There can be hierarchies of competence that are freely chosen and held to account. Or there can be unaccountable hierarchies that are aristocracies of power not subject to the rules designed for mere mortals. The difference is that one is beholden to the idea of truth; the other denies there is any such thing. For them all that matters  is power. 

Around 490 BC, it was Protagarus, who laid the foundation for today’s postmodernism by arguing that “Man is the measure of all things”.  Plato understood Protagurus to mean that there was no objective truth. Things are either true or not true based on how an individual perceives them. 

There is a great irony here. Joe Biden, who endlessly goes on about “following the science” apparently doesn’t realize that if there is no truth there is no science. And all his talk is nothing more than what he likes to call “Malarkey”. 

JFB

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Joe Biden’s Choice

Within hours of President Biden’s call for civility, protesters went on a violent rampage in the Pacific Northwest, mostly in Portland Oregon. The protesters, according to the New York Times, marched through the streets, burned an American flag and smashed windows at Democratic Party Headquarters.  

Violence in Portland, The New York Times

The protesters were not supporters of the now departed Donald J Trump.  Nor were they from QAnon, the Proud Boys or other white supremacist groups.  They were self-identified antifascist and racial-justice warriors, which is to say, fascists who like to call themselves  antifascists. Their complaint was that Joe Biden’s promised reforms “won’t save us”. 

Of course they won’t, primarily because they are not interested in being “saved”.  They are simply nihilists who seek to smash and destroy. They could care less about the back and forth of democratic politics and the making of public policy. They seek to engender distrust and destroy democratic institutions, not to build on them. 

If he means what he says, Joe Biden has a golden opportunity to take a large step toward restoring civility to the Republic and strengthening our democratic institutions. He can condemn the violence in Oregon without reservation just as strongly as he rightly condemned the violence fomented by Donald Trump at the Capitol on January 6. And he can seek to have the perpetrators brought to justice for their crimes,  just as the perpetrators of the January 6 riots should be prosecuted for their crimes to the full extent of the law. 

The choice is clear. It is a choice between violence and liberal government. Tolerating violence based on what “side” it favors is no justice at all. It is a fundamental attack on equality before the law and our democratic institutions. Vigorous prosecution of those who use violence to achieve political ends is a defense of the rule of law and democratic institutions. 

President Joe Biden has a choice to make. He can defend the rule of law and democratic institutions. Or he can be just like Donald J. Trump and be politically selective about how the law is enforced. 

That choice will tell us a lot about what Joe Biden is really made of. 

JFB

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Thomas Sowell on Culture

https://youtu.be/JtyoNSmOYzo
Thomas Sowell Discusses Culture

JFB

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Joe Biden’s “American Recovery Plan”

“Drink coffee and do stupid things even faster” — Sign in a coffee shop. 

Apropos the sign, an avalanche of stupidity is coming our way.  Just 5 days away from his inauguration, President-elect Joe Biden has outlined the first part of his “American Recovery Plan”. It is virtually indistinguishable from the progressive wish list Nancy Pelosi has been going on about for the last 20 years or so. The only difference is that now progressives actually have a shot of getting what they have always wished for. 

Consider just some of the proposals being put forward in the spectacularly misnamed American Recovery plan. To begin with, the price tag for this monstrosity is $1.9 trillion. That comes right after the $900 billion relief package Congress passed just last month. Not to mention the $2.2 trillion CARES act Congress passed in March of 2020. And this is only phase 1 of the Biden proposal. He promises more, fully backed by Bernie Sanders as the upcoming chair of the Senate Budget Committee. 

If Congress approves the Biden phase 1 package it would amount to $5 trillion in additional spending thus far for Covid and Covid marketed relief efforts. That spending is over and above the normal appropriations for running the government, all passed in a 10 month period. And it’s all done with borrowed money.

So let’s look at some specific proposals. Among other things that have absolutely nothing to do with Covid, Biden plans to increase the minimum wage to $15 an hour. If enacted, this is guaranteed to make things worse for the people who are the supposed beneficiaries. 

The unemployment rate is highest for people with low incomes and relatively little formal training. Plenty of these people work in the hospitality industry, specifically restaurants, which are among the hardest hit by the pandemic. Recent survey data suggest that about 110,000 restaurants, about 17% of the total, have closed their doors permanently because of Covid. 

The Biden solution is to raise the cost of labor for an industry in free fall. Very clever. Not only that, the restaurants that survive will simply switch their compensation systems to a European style one in which customer costs associated with tipping are built into menu prices (service compris) and tips are eliminated. The effect will be lost jobs and reduced employee compensation for those who keep their jobs.  Oh, and the survivors’ tax bills will rise because, let’s face it, virtually nobody reports all their tips to the IRS. 

Other goodies in the package include checks for $1,400 to round it up to $2,000. Schumer and Pelosi  have indicated that they are enthusiastically on board.  What this is supposed to accomplish beyond the buying of votes is left unspecified. And of course, this is to be financed, by more borrowing, because we are assured “there is plenty of money available”.

Another $350 billion or so is slated for “emergency” relief for state and local government finances. Translated into English, this means that the states that manage their finances well will be required to bail out predominantly blue state public pension plans that are underfunded to the point where in some cases, like Illinois, they are approaching insolvency. And not to put too fine a point on it, the sorry state of pension finance has nothing whatsoever to do with Covid. Bailing them out will just put off the day of reckoning until it gets  worse. 

Another $170 billion will be forked out “so that schools can re-open”. But of course, the schools didn’t need to close and stay closed in the first place. This is just a gift to the politically powerful teachers unions who have argued for closing the schools and keeping them closed. 

Private schools have opened independent of the state. And not just the elite ones. The K- 12 Catholic schools in Massachusetts opened successfully and have had almost no Covid infections. In other places, relatively affluent parents (like here in Fairfax County) have hired private tutors to run learning pods for groups of children. 

Needless to say, the teachers unions have opposed these efforts while fighting to keep the schools shut down for in-person learning. This is in spite of the fact that already the data clearly show a catastrophic fall-off in the academic performance of disadvantaged children. Let’s face it, the public schools are run for the benefit of the staff, not the kids. That’s why the kids are being sacrificed.

As more details of the Biden plan seep out, it will become clear to all with eyes to see that the Biden trajectory is simply Obama redux on steroids (or perhaps coffee).  It will be all about centralization, command and control. The crushing hand of the state will weigh in on every decision. Fantasies aside; there is nothing moderate about it. 

JFB

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Notes, Asides & Absurdities Jan 14, 2021.

“Try Him Now” Matthew Continetti writes referring to the second Trump impeachment. It is an article that should not be missed. 

David Horowitz has noted that “Inside every progressive is a totalitarian screaming to get out”. Alexandria Ocasio-Cortex, founding member of the Squad, has just illustrated the point nicely. In the wake of the Capitol riot she has called for a “truth and reconciliation or media literacy initiatives (sic)” to “rein in” the media. 

John Yoo writes that Donald Trump was rightfully impeached, but that he should not be convicted. Among other reasons why he writes that “Trump’s conduct does not rise to the level of criminal incitement”. But later he also goes on to say that the founders did not believe that impeachment (and presumably conviction) requires a criminal act. How’s that again? See Kevin Williamson on this. 

Guess who is about to become Chair of the Senate Budget Committee, which oversees budgeting and spending for the federal government? Why, that honor will go to none other than Bernie Sanders. Sanders has promised to “go big” in his spending plans.

Under Senate Rules the majority can use budget reconciliation to avoid the filibuster and pass bills without any Republican votes. Sanders has already promised to “go big” using this route for various spending proposals on pretty much the entire progressive wish list. 

The probable next chair of the Senate Finance Committee is Ron Wyden. Among other things, Wyden has proposed taxing unrealized capital gains. Wyden also proposes to “restore humanity” to HHS by disposing of conscience exemptions for religious organizations. Now he will be in a position to actual unleash his proposals.

Speaking of HHS, President-elect Joe Biden has nominated Xavier Becerra to run the organization as its new Cabinet Secretary. Mr. Becerra has absolutely no experience in the field, but he does have extensive experience, as California’s Attorney General, in suing the Little Sisters of the Poor for their refusal to finance employee purchases of contraceptives and abortafacients. He is also a fan of federal funding of abortion on demand. Presumably he is part of Mr. Biden’s moderate “healing agenda”. 

Welcome to progressive governance.

JFB


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Impeachment Redux

Clowns to the left of me, 

Jokers to the right…

From “Stuck in the Middle With you” written by Gerry Rafferty. 

It seems reasonably clear that Donald J. Trump, who has by now passed Richard M Nixon in the proverbial race to the bottom, has undoubtedly committed an impeachable offense. It is also reasonably clear that the Democratic Party, in its ongoing love affair with incompetence, is regrettably about to go out of its way to make removing him from office nearly impossible.

The single article of impeachment they are poised to pass is going to accuse Trump of inciting an insurrection. The problem is that the wording is an invitation to partisan sniping and the making of legal arguments that conflate Trump’s political offense with the criminal law. Not only is this going to make a conviction impossible, it is entirely unnecessary. 

National Review’s Andrew McCarthy suggests language that avoids these traps and gets to the heart of the matter. He writes: 

“If what the Democrats truly want is bipartisan consensus in the service of national security, rather than political combat, the articles of impeachment they plan to file should charge the president with (a) subversion of the Constitution’s electoral process, particularly the Twelfth Amendment counting of the sovereign states’ electoral votes; (b) recklessly encouraging a raucous political demonstration that foreseeably devolved into a violent storming of the seat of our government; and (c) depraved indifference to the welfare of the vice president, Congress, security personnel, and other Americans who were in and around the Capitol on January 6.”

The charges contained in McCarthy’s language appear to be beyond dispute. Congress could (and should) pass such an article with dispatch and send it along to the Senate. If the Senate wants to pretend it can’t find a way to vote on the article before January 20, or at least vote to censure Trump, so be it. What had heretofore been known as The Party of Lincoln, will have shown itself to be largely populated by cowering fools, utterly unwilling to stand up to mob violence, and incapable of protecting liberty and our institutions. 

Add to that the cynical calculations of the Democrats, some of whom wish to delay an impeachment trial until after Trump has left office, a course of action Jim Clyburn has suggested. The stated reason for this is that Trump could then be barred from office in the future. 

That is nonsense, for two reasons. First, the impeachment power was designed for removal from office, not punishment. After removal, punishment can be meted out the usual way. Second, As Bruce Ackerman points out in the Washington Post, Congress can ban Trump from holding federal office in the future using Section 3 of the 14th amendment. They could do so by finding that he engaged in insurrection or rebellion against the Constitution of the United States. Moreover, such a finding would not require an impeachment conviction. It would require a simple majority in both houses of Congress. That should be doable. 

If Congress decides to wait months to hold an impeachment trial (at which time Chuck Schumer will be majority leader) it will be simply because they wish to use it as a partisan cudgel while they pass the Party’s progressive wish list, including trillions in new “stimulus” that doesn’t stimulate.  All the talk of getting rid of Trump “immediately” will have been shown to be just that. Talk. And it will be politics as usual. 

JFB

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Joe Biden–Man of Science

Joe Biden, who during the campaign repeatedly insisted that he relied on “the science” in formulating policy proposals has just tossed science overboard. According to the Washington Post, a spokesman for the President-elect said that the incoming administration “…will release nearly every available dose of vaccine in the United States after Biden takes office Jan. 20 to get supplies quickly out to the states.”

The result of this policy change is to change the vaccination regimen so that the second shot—the booster shot—will be given 84 days after the first shot rather than the 21 to 28 days for which the vaccines were scientifically tested. 

When Britain first proposed a three-month wait for the booster shot, scientists in the U.S., Europe and the World Health Organization were, in the words of the Washington Post, “dubious”. Earlier this week the FDA said such a move would be premature and “not rooted solidly in the evidence”.  Moreover, the testing done so far suggests the efficacy of getting only 1 shot of the vaccine slips from 95% down to only 52%—a staggering fall. 

But it allows Joe Biden to look like he is doing something, which of course, is the point of the exercise. 

The proposed policy change is liable to do far more harm than good. The current policy is to put the most vulnerable and front line medical personnel first for the 2 shot regimen.  The new policy will leave the most vulnerable more exposed to a fatal infection than they would have been otherwise, without necessarily doing anything to reduce the spread f the disease. 

To the extent that more people have limited protection, but the most vulnerable have less, there is a greater likelihood that the most vulnerable will suffer more fatalities. But it doesn’t end there. Providing a broader range of the population with limited protection will in all likelihood protect people who don’t need it at the expense of people who do. Not only that, delaying the second shot, gives the virus more time to adapt. This increases the time that the virus has to adapt to the new (and weaker) vaccine and develop resistance to it. 

The likely end result will be to (1) increase the fatality of the disease with older, more vulnerable populations, while (2) having little to no effect on the rest of the population and (3) delaying the onset of herd immunity.

But it will show that Joe Biden is doing something. 

There actually is something that can be done about the slow rate of vaccine take-up. The first thing to do is to understand the problem, which is a logistics problem, not a supply problem. The most difficult part of any complex distribution network is the “last mile”. A bureaucratic command-and-control system implemented by government is the last way a complex distribution system should be engineered. 

The obvious way to handle the problem is to go to people who are experts at this. They live in the private sector at places like Amazon, Walmart, CVS and the like. Having financed the development of the vaccines, which was a good idea, government should contract with the private sector to handle distribution. That would solve the problem, or at least improve distribution efficiency. 

Unfortunately, it is also something that progressive control freaks are unlikely to do. 

JFB

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Impeach and Convict Him. Now.

The facts of the case are clear. President Donald J. Trump incited a mob that subsequently attacked the Capitol building where Congress was in session. The attack was designed to intimidate Congress, prevent them performing their Constitutional duty to properly count the electoral votes of all the states, invalidate Biden’s victory, overturn the election and grant Trump a second term. Anyone who doubts this has merely to read the transcript of Trump’s hour long rant in which he urged the crowd to march down Pennsylvania Avenue.

Assuming Trump does not resign in the hours ahead, Speaker Pelosi should, by Tuesday at the latest, put a single article of impeachment on the floor for a vote. That article should accuse Trump of incitement to insurrection. It will pass. The Democratic House would impeach Trump for littering, given the chance. 

The argument that there is not enough time for the House to reconvene and vote on a single article of impeachment simply does not hold water. If House members cannot be stirred enough to come back to Washington for a matter of this magnitude, the voters should be made aware of it. Further, the issue does not require a lot of fact finding. We all know what Trump did. His speech inciting the crowd is on television. 

There is an argument that Trump’s speech to the crowd was reckless but not sufficiently reckless to give rise to criminal liability. That argument rests on the difficulty, if not impossibility of (1) proving criminal intent beyond a reasonable doubt, and (2) the first amendment protection of speech.  These arguments are both correct and irrelevant. 

Impeachment requires the commission of High Crimes and Misdemeanors. But those High Crimes and Misdemeanors should not be understood to require a violation of a criminal statute. Referring to impeachment Alexander Hamilton said in Federalist 65, “The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust, …”. What President Trump did was precisely that. 

If it so desired, the House could surely report out an article of impeachment by Thursday, January 14. That would give the Senate several days to debate and then vote on the proposition. That would provide two immense benefits. First, and most importantly, it would put each Senator on record. Second, if successful, it would prevent Trump from ever holding office again. 

The importance of holding Trump to account for his behavior cannot be overemphasized. By inciting the crowd to riot, he is not only at least indirectly responsible for the deaths of at least 5 people; he also provoked an attack on the foundations of the Republic and constitutional governance. This from a man who took an oath to preserve, protect and defend the Constitution of the United States. 

Trump incited a mob to attack Congress when it was fulfilling its constitutional duties in order to overturn an election, an election Trump lost. In so doing he launched a full fledged attack on the lawful foundations of our constitutional republic.  If that is not sufficient to require removal from office, then nothing is. 

JFB

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