A Day That Should Live in Infamy

By Gary Schmitt

Friday, February 13, 2026

 

Five years ago today, 43 Senate Republicans voted to acquit Donald Trump of inciting the January 6 riot in his second impeachment trial, leaving the Senate short of the two-thirds required to convict. In doing so, they foreclosed the constitutional penalty that potentially follows conviction: “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”

 

Today, we are living with the consequences of those 43 Republican votes: a president who literally professes to have “the right to do anything I want to do” and who, having survived two impeachment trials, sees the ultimate constitutional guardrail against presidential misbehavior as a dead letter. If the first year of Trump’s second term is any indication of what the future holds, we might look back in the months ahead and judge the vote to acquit Trump on February 13, 2021, as the day the Constitution died.

 

Seven GOP senators—Richard Burr of North Carolina, Bill Cassidy of Louisiana, Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska, and Pat Toomey of Pennsylvania—did vote to convict. The rest put forward reasons for voting to let Trump off the constitutional hook. Among them: Trump was no longer president and so could not be “removed” from office; Trump’s speech to thousands at the January 6 “Stop the Steal” rally represented protected political speech under the First Amendment; and, finally, the House impeachment process deprived Trump of due process, having called no witnesses or allowed Trump’s legal team a chance for rebuttal.

 

None of these points was completely without merit, but neither are persuasive as a defense. As scores of constitutional scholars pointed out, the idea that a former president had to be “in office” to be convicted in an impeachment trial was an unnecessarily cramped reading of the constitutional text, ran afoul of the history of British impeachment practices that the drafters of the Constitution drew on, and—perhaps most importantly—created an illogical situation in which an impeached president could escape conviction and disqualification for his misdeeds by simply resigning before a Senate vote. As former President John Quincy Adams succinctly put it nearly two decades after he left the White House, he was “amenable to impeachment … for everything I did during the time I held any public office.”

 

As for the argument that the impeachment charge of inciting the January 6 riot violated Trump’s free speech rights, even if Trump had been a private citizen he might have still faced a criminal indictment given how he purposely stoked the crowd into a frenzy, told them to go to the Capitol, and “fight like hell.” But he was not a private citizen, and as president, Trump had broader obligations under the Constitution. As Keith Whittington, the country’s leading expert on the impeachment process, wrote at the time: “the First Amendment does not shrink the scope of the impeachment power or alter what conduct would fall within the terms of high [crimes] and misdemeanors.” Indeed, “high crimes and misdemeanors” was meant to capture conduct that is ostensibly legal but which violates the president’s larger duty to the nation and the constitutional order. Under this argument, a president could make a speech calling for a repeal of the 13^th Amendment, wear a Nazi swastika on his arm, and don a pointed white hood and still be immune from impeachment.

 

No more serious is the charge that Trump was denied due process. There is no requirement that House impeachments precisely ape the proceedings of a criminal trial. They could, but it’s certainly not constitutionally mandated. Indeed, if anything, impeachments are more akin to grand jury deliberations where the government, in a one-sided process, needs to convince the members of the jury only that there is sufficient evidence (“probable cause”) that a law has been broken. It was absurd to think that Trump’s behavior on January 6—which the whole nation witnessed on TV and members saw first-hand as they scrambled for their lives—was somehow insufficient to move the House to vote on an article of impeachment. As for the Senate trial, Trump’s defense team was given all the time it wanted to rebut the charge of incitement and could have, but didn’t call its own witnesses.

 

Undoubtedly, some Republicans took these reasons for acquittal seriously. However, the idea that all, or even half, did seems improbable. Senior Republicans like then-House Minority Leader Kevin McCarthy and Sen. Lindsey Graham knew Trump was responsible for what happened that day. Nevertheless, they, and others, rapidly gave him a pass out of fear of a backlash from Trump’s political base. Best to hide behind constitutional arguments to save face, avoid retribution from the president’s supporters, and preserve their own positions and ambitions.

 

Not that Democrats were pure of heart. Having won in November, Joe Biden and his team made it perfectly clear that they wanted to get the impeachment and subsequent trial over as soon as possible to get on with their own policy agenda, nixing in the process any deeper dive into Trump’s culpability.

 

If there were any hope of 10 more Republican senators having the backbone to convict Trump, it would turn on the decision of Senate Minority Leader Mitch McConnell to acquit or not. McConnell made clear at the time that what the president had done was definitely worthy of impeachment. “There is no question—none—that President Trump is practically and morally responsible for provoking the events of the day,” he opined. “The leader of the free world cannot spend weeks thundering that shadowy forces are stealing our country and then feign surprise when people believe him and do reckless things.” Nevertheless, despite being admittedly uncertain about the question of whether a former president could be impeached, he came down on the side of saying “no.”

 

What appeared to push him to adopt the argument was less its persuasiveness than its political convenience. With Trump’s loss in the general election and the events of January 6, McConnell assumed that Trump was finished politically. But what the senator also believed was that Trump’s voters were still a significant factor within the GOP and that they would be needed to take back the Senate in two years—and, by the way, return him to the position of Senate majority leader. None of that he thought would be possible if Republican senators angered what became the MAGA base.

 

As McConnell told his biographer Michael Tackett, “Where I differed with Liz [Cheney] is I didn’t see how blowing yourself up and taking yourself off the playing field was helpful to getting the party back to where she and I probably both think it ought to be. … I think her sort of self-sacrificial act maybe sells books but it isn’t going to have an impact changing the party. That’s where we differed.”

 

Just how wrong could one be? Trump wasn’t dead politically. If members of Congress were so afraid of the Republican base’s Trump attachment, why wouldn’t Trump take advantage of it if he could still run for office? Indeed, was it even possible to transform a party with Trump still alive and kicking politically? Nor did the GOP retake the Senate in 2022, losing in Georgia, Pennsylvania, and Arizona with Trump-aligned candidates. If McConnell had acted otherwise, it is not unreasonable to suggest that he could have provided the necessary safe harbor for other senators to follow his lead.

 

It’s true, of course, that McConnell would have likely lost his leadership position—just as Cheney did in the House—had he voted to convict Trump. On the other hand, he would have gained the lasting honor of doing the right thing by the Constitution and perhaps reminded us of why the Senate was intended to be “the upper chamber.” Instead, when asked just a few days later if he would support Trump if he captured the Republican nomination again, he answered, “absolutely.”

 

Can there be any doubt that having survived his second impeachment and gotten away with fueling a massed attack on another branch of government in effort to overturn a fair and free election that Trump would, once reelected, enter office believing there were no effective institutional roadblocks to prevent him from doing whatever he wanted? Limited government in America is defined less by the specific powers found in the Constitution than the willingness of the branches to check each other. Impeachment is an extreme check on official misbehavior—-but a necessary one given the unique role and powerful authorities vested in the presidency.

 

Senate Republicans continually grumble in private about this or that Trump provocation. However, they have only themselves to blame for allowing Trump to resurrect himself, for then confirming a Cabinet largely filled with “yes” men and women, and further reducing Congress from being the first branch of government to a governing afterthought.

What Mamdani Doesn’t Know About Tenants

By Michael Powell

Wednesday, February 11, 2026

 

On New Year’s Day, Zohran Mamdani completed his inauguration festivities and departed for Brooklyn. In the working-class neighborhood of East Flatbush, the new mayor stepped into the lobby of an old apartment building on Clarkson Avenue and met with tenants on rent strike. Their grievances were many: The building has 201 outstanding housing-code violations, including leaks, roach infestations, black mold, and that most perilous of winter derelictions, a lack of consistent heat and hot water.

 

The young democratic-socialist mayor had championed working-class tenants throughout his campaign, promising to freeze rents in rent-stabilized apartments for four years and even to seize control of buildings owned by slumlords. This trip could be seen as a down payment on his intent.

 

Mamdani faced reporters and photographers in the lobby. “Landlords have been allowed to mistreat their tenants with impunity,” he declared. “That ends today.” Cea Weaver, the new director of the Mayor’s Office to Protect Tenants and, like Mamdani, a member of the Democratic Socialists of America, stood at his side. Her disdain for private-market landlords is no less fierce than Mamdani’s; she has argued that no tenant should be evicted for not paying rent. A few days later, the mayor would announce “rental ripoff hearings” at which tenants could excoriate bad landlords. (A social-media promotion reads like a movie poster: “Mayor Mamdani & the Mayor’s Office to Protect Tenants Present New Yorkers vs Bad Landlords.”)

 

As it happens, in the early 1980s, I worked as a tenant organizer in the same neighborhood, including at a building a few doors down from the one where Mamdani spoke. I empathize with the mayor’s fury and recall my own outrage as I spoke with hardworking tenants who ran their ovens with the doors open to stay warm and watched mice scamper across their floors. We confronted bad landlords and ventured into the chaos of housing court in search of justice that often proved elusive.

 

But over time the problems we were trying to address, and the solutions, began to look more complicated. Rage, I learned, was not enough. In my three years as an organizer, I received a bracing education in the economics of rent-stabilized apartments, the terrible cost that crime wreaks on struggling neighborhoods, and the delicate ecology of low-income housing. All of which shapes my view of Mamdani’s promises: Rent freezes and promises for the city to take over neglected apartment buildings make for good, visceral politics but poor public policy.

 

***

 

I was born and raised in New York City, and grew up in a rent-controlled apartment. My family’s sometimes-straitened finances meant that we would remain renters. I became a tenant organizer in my early 20s, working for the Neighborhood Stabilization Program, an offshoot of the city’s Commission on Human Rights. My plan was to change the world, or at least my corner of it.

 

New York at the time was far more desolate and dilapidated than the expensive, albeit deeply unequal, financial capital it is today. In East Flatbush in the early 1980s, I found blocks of attached brick homes and boulevards with once-grand apartment buildings. But Church Avenue, the commercial spine of the neighborhood, offered a dreary run of boarded-up storefronts, interrupted here and there by diners, real-estate offices, discount shops, and bodegas, where you could score a nickel bag of weed along with your quart of milk. Farther east lay blocks with burnt-out apartment buildings, ghostly at night, and lots strewn with bricks and old bathtubs, mattresses, and cribs. To reach one tenant association I worked with, I had to navigate an open-air heroin market. (I was safe enough; dealers assumed I was just another white boy in need of a fix.)

 

One night, as I hustled along a deserted avenue to the bus, I passed a row of commercial garages and felt momentarily hopeful: Thank God these businesses remain. Then I heard the high-pitched whine of electric saws behind metal gates, and I realized these were chop shops, where men worked through the night to reduce stolen cars to marketable parts.

 

The city at that point had shed jobs and residents by the hundreds of thousands. Many white residents in East Flatbush had succumbed to racist fearmongering by real-estate speculators and sold their home for a fraction of the assessed value; the speculators sold those homes to Black buyers at exorbitant interest rates. As new arrivals tried to find their footing, a tide of homicides and drug dealing swept in. In 1976, an influential former local official wrote an essay in The New York Times advising that the city should withdraw services from degraded neighborhoods, even razing apartment blocks, closing subway stations, and leaving land to “lie fallow”; he called it “planned shrinkage.” That did not happen, not exactly, but the neglect was real. The working-class West Indians, Haitians, and African Americans who poured into East Flatbush differed not so much economically from earlier white residents, but they had to fight mightily to obtain the most basic services.

 

Most tenants I worked with in East Flatbush hailed from the West Indies, Barbados, Guyana, Jamaica, and Grenada, and nearly all of them lived in rent-stabilized apartments. One building in particular comes to mind, on Cortelyou Road. The tenants lived in a 1920s-era four-floor walk-up with 25 rent-stabilized units. (Under New York’s rent-stabilization laws, an appointed board sets maximum allowable rent increases citywide.) The landlord, a Jamaican-born insurance salesman, was not a bad guy; at best, he was a couple of steps up the income ladder from his struggling tenants. He had sunk his life savings into the building in hopes of turning a profit, and that was proving a very bad bet.

 

The old boiler wheezed and stalled, the roof sprang leaks, half-century-old pipes cracked, and the lobby intercom was defunct. The building needed intensive care. But the rent roll was puny, and few tenants could have paid more even if rent stabilization had allowed for it. One evening, the landlord told us that he could not afford to run the building.

 

Tenant leaders were sympathetic, but this was about survival. They persuaded a housing-court judge to push the landlord aside and appoint an administrator who was empowered to spend rent monies only on heat and emergency repairs. Tougher decisions followed. A young mother of two was well liked but fell months behind on rent; when the city welfare department gave her an emergency cash grant, she declined to use it to pay the rent. A mother of three was romantically entangled with a man who had commandeered a third-floor landing for his drug business and whose clientele sometimes broke into apartments. The tenant association voted to move to evict these women, their decision no less necessary for being sad.

 

The landlord walked away without a penny. There were no proletarian hearings to denounce a slumlord, who in this case did not really exist. Just deeply painful decisions. But the tenants managed to assure that the building would remain what it is to this day: rent stabilized, still of somewhat-precarious finances. I remember asking a tenant leader what she had prayed for during those tough times. “A good super who understands boilers,” she replied.

 

***

 

East Flatbush is a much healthier place today. New, handsome apartment buildings have gone up, and you can see signs of that mixed blessing known as gentrification. Church Avenue is revived, nearly every storefront occupied, jazz clubs mixing with Haitian bistros, home-loan shops, day-care centers, and Jamaican fish shacks. But the neighborhood still feels fragile, acutely sensitive to any uptick in crime and any drop-off in city services.

 

The multifamily-housing stock in East Flatbush remains particularly vulnerable, as it does in all but the wealthiest of the city’s neighborhoods. (New York has 1 million rent-stabilized apartments.) Today, even many well-run rent-stabilized buildings are still only marginally profitable. That is in part because of rent-law changes pushed through the state legislature in 2019, and advocated by Weaver. These changes include laudable protections for tenants, but the economic effects are more uncertain. Previously, when a tenant moved out of a stabilized apartment, the landlord could raise the rent by 20 percent. Landlords were also allowed to substantially increase rents if they rehabilitated an apartment or made major improvements to a building. Under the new law, they can raise rents by only minuscule amounts to cover rehabilitation costs. One need not weep for landlords—some of whom have prospered mightily—to note they no longer have much incentive to fix up apartments.

 

Meanwhile, operating costs are rising faster than rental revenues, according to the NYU Furman Center, which recently examined rent-stabilized housing. And rent collections in many working-class buildings in New York never fully rebounded after COVID. The result, predictably, is disinvestment: As managers have cut back on maintenance, the number of code violations has spiked—a 47 percent increase in the past five years in the rent-stabilized buildings that NYU examined. A study by Enterprise Community Partners, an organization that supports affordable housing, found that costs for affordable-housing operators—including insurance, maintenance, and administrative expenses—jumped 40 percent from 2017 to 2024; six of every 10 projects the group has financed are losing money. All of this is risky business for those who operate buildings that are 80 to 100 years old. These problems extend as well to rent-stabilized buildings run by respected nonprofits.

 

Even the Mamdani administration has acknowledged the near-impossible economics of rent-stabilized housing. After the mayor visited the building on Clarkson Avenue, the city’s law department sued to delay the sale of the building and 92 others owned by the same landlord in a bankruptcy auction; the landlord, the Pinnacle Group, owed the city $12.7 million in arrears and fines. The city wanted to sideline the leading bidder, and was trying to buy time, likely so it could steer the portfolio to a more tenant-friendly buyer, or even the city itself.

 

I have no quibble with targeting the Pinnacle Group, which is in bankruptcy proceedings on 93 buildings with 5,150 apartments, most of which are rent stabilized; these buildings have a cumulative 5,000 code violations and 14,000 complaints. But in court documents, the city’s lawyers pointed out that rents in Pinnacle’s portfolio are “very low averaging” and that those revenues are too low to constitute a “supportable business.” That is surely an obstacle to clearing up code violations. A federal bankruptcy judge denied the city’s motion, ruling that the new proposed buyer had submitted a “reasonable-sounding plan” to manage the buildings—potentially saving the city from a very expensive rehabilitation project.

 

All of this underlines why fixing the problem of affordable housing in New York City is not so simple as freezing rents. Mamdani’s deputy mayor for housing and planning recently said that the administration wants to lower costs for landlords—for example, through property-tax reform, tax breaks for renovating apartments, and attempts to slow the steep rise in building-insurance costs. The mayor’s primary focus, however, is on what tenants pay to live in this terrifically expensive city and the quality of their housing. That’s far from irrelevant. But the question of how to get landlords to deliver this housing without bankrupting their buildings matters just as much.

 

***

 

There was also, for me as an organizer, the issue of crime. Five years ago, Mamdani argued that the New York Police Department was essentially evil and should have its budget deeply slashed. He has softened that view considerably since taking office, but many DSA comrades still hold it. I can speak only to my own experience: Nothing so erodes the stability of neighborhoods and buildings as failing to address crime.

 

I felt its pernicious effects personally in East Flatbush. Tenants had formed an association at a building on Martense Street, at a then-sketchy corner. The building had many ailments, and the landlord seemed intent on doing as little as possible about them. Tenants identified their greatest need as a working intercom. Absent that, the front door swung ajar, a welcome sign to thieves. One afternoon, I walked downstairs after talking with the tenant leaders and found five adolescent boys jiggering locks to break into an apartment.

 

Yo, yo, yo, get out of here, I said loudly, waving my hands to scat.

 

The littlest boy pulled out a strikingly large gun and stuck it in my face. Shoot him, two boys yelled. Nah, leave the motherfucker alone, the other two said. The boy considered his options, then tucked the gun back into his waistband. He told me I was lucky to be alive. I nodded in agreement.

 

Such episodes threatened civic life in a most elemental fashion. A homeowner block leader who risked catching a stray bullet was far less likely to walk to an evening meeting at a local church. Tenants told me they worried that if they talked openly in their lobby about crime, snitches for local drug dealers might overhear and report them. Other tenants sometimes insisted on walking me to the subway after a meeting, placing themselves in harm’s way.

 

I never once heard a tenant leader or block leader argue for less policing. They wanted a respectful partnership with law enforcement. At great risk, they monitored dangerous streets and rowhouses, took notes on dealers and gangs, and passed this information along to the local precincts and to the mayor’s office. Some cops and city officials were unresponsive, even corrupt. But the best listened carefully and used that information to clear notorious corners and round up gang leaders.

 

I once stood watch with tenants every night for a week after we heard that their landlord had hired an arsonist—known as a “torch”—to burn down their building, so the landlord could collect the insurance money. The city’s Arson Strike Force got involved, and the building stands to this day.

 

The new mayor is fond of his On the Waterfront rhetoric, and tends to suggest that, before the socialists came to power, city government was dismissive of the poor and working class. He means well, but this is nonsense. Thankfully, city officials—prodded by tenants and small-business owners, clergy and homeowners, and, yes, some landlords—rejected advice to consign neighborhoods such as East Flatbush to history’s dustbin. Beginning in the 1980s, successive mayors, Democrats and Republicans, invested first hundreds of millions and then billions of dollars in what became the greatest urban-rebuilding program in American history. The city and nonprofits rehabilitated abandoned buildings and constructed new ones, along with day cares and schools. The rubble-strewn lots I once walked through are now smart-looking apartment buildings. Banks and supermarkets sit on corners where drug dealers held sway. Citywide, many fewer children are in foster care, fewer men are in prison, and far fewer New Yorkers are murdered each year.

 

I took a walk recently through East Flatbush, alongside the snow-laden Holy Cross Cemetery, down Church Avenue, and along a couple of boulevards of prewar apartment buildings, as achingly beautiful and, in some cases, as tattered as when I first arrived there. The city still faces many challenges, but its recent history gives me hope that a new mayor and administration committed to improving affordable housing can make a profound mark. To do that, Mamdani will need to toss aside easy moral binaries—noble tenants versus capitalist landlords, frozen rents versus runaway profits—and recognize the painful trade-offs that will come with restoring rent-stabilized housing, one of New York’s great resources.

The Tide Goes Out on Youth Gender Medicine

By Helen Lewis

Thursday, February 12, 2026

 

As the shaky evidence base for youth gender medicine has become better known, activists have retreated to an argument from authority. Never mind the Cass Report, whose findings resulted in the closure of Britain’s leading youth gender clinic. Never mind the study by a leading American practitioner showing that the treatments she championed did not improve minors’ mental health. Never mind reports that some adolescents were being put on a medical pathway after only a single clinic visit. For advocates, the important thing to remember was that “gender-affirming care” for minors—puberty blockers and hormones, plus surgery in rare cases—was endorsed by all of the major American medical associations.

 

“Doctors Agree,” proclaimed the American Civil Liberties Union: “Gender-Affirming Care Is Life-Saving Care.” GLAAD declared that “every major medical association and leading world health authority supports health care for transgender people and youth.” Fired up by the Republican “war on trans kids,” and naturally deferential to institutional authority, Democrats have tended to echo this line. At a 2023 congressional-subcommittee hearing on pediatric gender medicine, the ranking Democrat, Representative Mary Gay Scanlon of Pennsylvania, declared that “gender-affirming care is safe and effective” and “supported by every major medical association”—groups that collectively count more than 1.3 million doctors as members. “It’s not up for debate,” she said. In line with this, Joe Biden’s administration lobbied to remove age minimums from the industry’s standards of care.

 

Today, though, the future of medical transition for minors is up for debate. On February 3, the American Society of Plastic Surgeons recommended that “surgeons delay gender-related breast/chest, genital, and facial surgery until a patient is at least 19 years old.” The next day, the American Medical Association, the country’s largest organization representing doctors, endorsed that view: “In the absence of clear evidence, the A.M.A. agrees with A.S.P.S. that surgical interventions in minors should be generally deferred to adulthood.” These statements echo what skeptics of American youth gender medicine have been saying for years: The evidence of the benefits and risks of mastectomies and other surgeries is insufficient to justify their use as treatments for gender dysphoria, and follow-up data on those who have undergone the procedures are scant.

 

More significant, the ASPS statement explicitly endorses the conclusions of the Cass Report and the evidence review commissioned by the Department of Health and Human Services last year. LGBTQ groups and gender clinicians have dismissed both of these documents as fuel for right-wing attacks on care, even though Hilary Cass was a nonpartisan retired pediatrician, and most of the HHS report authors were self-described liberals and Democrats. But the ASPS references both warmly, and bases its new guidelines on the research carried out by the official British and American inquiries. “Both the Cass Review and the HHS report emphasize that the natural course of pediatric gender dysphoria remains poorly understood,” notes the ASPS statement. “Available evidence suggests that a substantial proportion of children with prepubertal onset gender dysphoria experience resolution or significant reduction of distress by the time they reach adulthood, absent medical or surgical intervention.” Put simply, that is an American doctors’ organization acknowledging that gender dysphoria frequently resolves itself without treatment—a challenge to the idea that children’s new identities should be uncritically endorsed.

 

I don’t want to overstate what has happened here: The ASPS has been more cautious than other groups for many months now, and its new positions are limited in scope. Gender surgeries on minors were never offered by Britain’s health service, and only a few thousand have been performed in the United States, according to a 2023 study. The ASPS statement also cites “insufficient evidence demonstrating a favorable risk-benefit ratio” for hormone treatments, but does not explicitly recommend against them. Yet the organization’s stance still represents a shift away from the purely affirmative model, in which saying no is never a clinician’s job. Notably, the group reminds members that “plastic surgeons cannot rely on the presence of a prior medical intervention, referral, or letter of support as a proxy for surgical indication or adolescent readiness.”

 

This matters, because the idea of performing mastectomies on girls as young as 13 became a powerful symbol of a clique of doctors who could not be trusted to regulate themselves. The Miami surgeon Sidhbh Gallagher became known on TikTok for her catchphrase “yeet the teet,” referring to mastectomies, and for calling herself “Dr. Teetus Deletus.” The detransitioner Chloe Cole, who has testified in favor of state bans on pediatric gender medicine, received a double mastectomy at 15. Johanna Olson-Kennedy, who formerly worked at the gender clinic of the Children’s Hospital Los Angeles, was the lead author on a paper recommending that mastectomies be offered based on “individual need rather than chronologic age.” She once boasted at a seminar that she did not worry about regret: “If you want breasts at a later point in your life, you can go and get them.”

 

Unfortunately, things are not that simple. In a recent lawsuit in New York State, a detransitioner called Fox Varian testified that she’d had her breasts removed at 16, only 11 months after first identifying as male. She had also been diagnosed with autism and had struggled with an eating disorder and anxiety. By the time of the surgery, she had changed her name twice already. Varian asserted, according to the reporter Benjamin Ryan, who attended the trial, that her doctor “served as an enabler, repeatedly assuring her that the mastectomy she desired would greatly improve her well-being.” Varian told the court that she regretted the surgery instantly, and detransitioned three years later. She was awarded $2 million in damages. The court heard that she had been left with scarring and a lack of sensation, and would be unable to breastfeed.

 

Varian’s lawsuit also claimed that doctors encouraged her mother to approve the surgery by invoking the specter of suicide. As I wrote last year, the idea of youth gender medicine as “lifesaving”—for the prevention of suicide—has been key to overriding parents’ understandable concerns about these treatments. But this is another activist talking point that has begun to crumble. In front of the Supreme Court, the ACLU’s Chase Strangio conceded that there was no evidence to support the assertion that transition prevents suicide, because “completed suicide, thankfully and admittedly, is rare.” He argued that instead it reduced suicidal thoughts—a significant climbdown from the once-popular assertion that parents had to choose between “a dead son and a living daughter,” and vice versa. His concession helped expose this rhetoric as the emotional blackmail that it always was.

 

The tide is now going out on the affirmative approach to youth gender medicine as practiced in America. “I stopped the mutilation of children,” Donald Trump told a prayer breakfast on February 5. Twenty-seven states have placed restrictions on the medical pathway, while gender clinics in blue cities such as Los Angeles have shut down under Trump’s threat of funding cuts to their host institutions. Now the success of such a high-profile detransitioner lawsuit—one of more than two dozen currently under way, according to Ryan—will make the remaining affirmative clinicians nervous.

 

Frankly, they should be nervous. As the field has received more scrutiny, advocates have begun to stress the need for careful assessments, even though American providers in the 2010s largely rejected this essential feature of the Dutch protocol, the medical treatment for youth gender dysphoria developed in Europe in the 1990s. Today, when Democrats defend youth gender medicine, they tend to do so on the basis of individual freedom rather than the effectiveness of the treatments themselves. In 2024, a brief signed by 11 Democratic senators and 153 Democratic House members urged the Supreme Court not to uphold Tennessee’s ban on youth medical transition. The state law “intrudes on an individual’s decisions about their own medical care, made in partnership with their medical providers,” the signatories said.

 

All of this represents a clear retrenchment from the 2010s and early 2020s. The excesses of that era prompted a backlash that fueled the current MAGA demonization of gender nonconformity. The story of youth gender medicine is one of good intentions, arrogance, fear, and polarization. It is also an avoidable tragedy.

 

 

Eating the Pieces

By Nick Catoggio

Thursday, February 12, 2026

 

I’ve been trying for days to find something interesting to say about what’s happening with the Gordie Howe International Bridge. It shouldn’t be hard. The story has everything—corruption, intrigue, three different governments clashing, one comically large and fragile ego at the center of it all.

 

It’s objectively interesting … except to readers of this newsletter, who’ll find the themes familiar to the point of tedium.

 

In brief, the president is mad at Canada for deciding that it would rather do business with China than lick his boots. So on Monday he announced his opposition to the bridge, a joint endeavor between Canada and Michigan to ease congestion in cross-border commerce that’s been in the works for years thanks to, er, the first Trump administration. No more, though: “I will not allow this bridge to open until the United States is fully compensated for everything we have given” Canada, the president angrily declared.

 

(We haven’t given the Canadians anything for the bridge, incidentally. They paid for it.)

 

The next day the New York Times revealed that Trump’s post came hours after Matthew Moroun dialed up Commerce Secretary Howard Lutnick. Who’s Matthew Moroun, you ask? Why, he’s the owner of the Ambassador Bridge that for decades has provided the only conduit between Michigan and Canada for commercial trucking. That bridge’s local monopoly on tolls is threatened by the Gordie Howe Bridge so Moroun dialed up the president to ask for a favor, it appears. And of course he got one.

 

This barely qualifies as news in 2026.

 

Everything about the episode is par for the course for Trump 2.0. The rent-seeking by rich cronies. The president’s imperiousness in abusing state power to settle his petty grudges. The economic illiteracy in believing that America gets “absolutely NOTHING,” as he claimed in his statement, from an infrastructure project that will facilitate trade. And of course the usual basketful of lies and nonsense to support his position, punctuated by this head-scratching all-timer: “The first thing China will do is terminate ALL Ice Hockey being played in Canada, and permanently eliminate The Stanley Cup.”

 

What is there to say about this at Boiling Frogs that hasn’t been said a hundred times before?

 

The closest I’ve come to finding a point about it that’s worth drilling down on is this: Messing with the Gordie Howe Bridge is remarkably stupid strategically as a political matter.

 

We’re nine months out from a national election. Michigan, famously, is a closely run swing state. Nearly every major office there will be on the ballot this fall—governor, a Senate seat, 13 House seats. And Trump has somehow decided that this is the moment to lob a grenade at the state’s economy, knowing full well that Republican candidates there will have little choice but to take his side.

 

It’s insane. It reminds me of a notorious quote from his first term, when BuzzFeed asked an unidentified former White House official what the president’s strategy was in pardoning sleazy sycophants who’d been convicted of federal crimes. There’s no strategy, the official replied.

 

Trump’s supporters like to believe that he’s playing three-dimensional chess, he continued, but “more often than not he's just eating the pieces."

 

Trying to tank the Gordie Howe Bridge is another case of Trump eating the pieces. As was his immigration crackdown on Minneapolis, which we learned this morning is finally coming to an end.

 

Backlash.

 

On February 4 the Department of Homeland Security announced that more than 4,000 illegal immigrants had been arrested so far under “Operation Metro Surge” since it began in Minnesota on November 29.

 

That’s slightly north of 60 people per day. Not all were violent criminals, surely; probably very few were, in fact, given the national trendlines. Not all who were detained have been deported either. “Arrested” doesn’t mean “removed.”

 

Sixty arrests a day—for an operation that eventually involved 3,000 immigration agents. That’s one arrest daily on average per every 50 officers deployed.

 

Another way to look at it: The total number of arrests in Operation Metro Surge over the course of two months represents barely more than one day’s worth of the national target that Stephen Miller has been pressuring ICE to hit since last year.

 

What did the White House get in return for that measly number? Nothing more or less, I think, than the near-total destruction of its credibility on immigration outside of the core Republican base. And even parts of the core seem a little shaky lately.

 

The president’s job approval today in the RealClearPolitics average is 42.1 percent, a new low for his second term. Four of the last nine polls tracked by RCP have him below 40 percent, a floor he seldom crashed through in polling over the past year until recently. Yesterday an NBC News survey found his approval on “border security and immigration,” traditionally his strongest issue, at 40-60. When respondents were asked whom they trusted to provide the most accurate information about immigration arrests and related civil unrest in Minnesota, just 9 percent said “the federal government.”

 

I wonder why.

 

The Associated Press piled on with a new poll this morning that captured how poisonous Operation Metro Surge has become. Sixty-two percent believe the deployment of federal immigration agents into U.S. cities has gone too far, and 60 percent hold an unfavorable view of ICE. That tracks with the NBC News data, which found no less than three-quarters of Americans want the agency to be reformed or abolished entirely.

 

Last month, after an ICE officer killed Renee Good but before Border Patrol agents killed Alex Pretti, I warned that the crackdown in Minneapolis was discrediting immigration enforcement. Now here we are. Dissatisfaction with the president is so high that he’s begun to get the short end of the stick in polling on whether his term so far has been worse than—deep breath—Joe Biden’s.

 

Four thousand arrests, not all of which will end in deportation, at the cost of crushing one of the GOP’s most consequential policy advantages over the left. The U.S. attorney’s office in Minneapolis—which was overseeing the prosecution of suspects in the big Somali fraud scandal—has also been wrecked in the process. How does that grab you as a return on a political investment?

 

That’s what eating the pieces looks like.

 

Beyond strategy.

 

Here’s a question that citizens in a democracy don’t often need to consider: How many policies has the president championed over the past 13 months that he had a reasonable expectation would be popular?

 

Securing the border is an obvious one. So are the tax cuts in the One Big Beautiful Bill, although the bill writ large is not so popular. Beyond that, though?

 

Disruptive, overweening immigration dragnets aren’t popular, as we’ve just seen. Tariffs, Trump’s signature economic policy, aren’t either. Strong-arming nations like Venezuela with military muscle? Not popular. The big Greenland acquisition? Not popular. Racing away from NATO? Also not popular.

 

His Caesarist passion projects, like knocking down part of the White House to build a ballroom and renaming the Kennedy Center after himself? The less said, the better.

 

In every case, he’s eating the pieces instead of playing the sort of political chess that might plausibly improve his party’s chances in a difficult electoral environment. Which might be defensible if he were burning political capital to achieve some important policy goal, like Democrats did in 2010 when they successfully enacted Obamacare at the cost of obliteration in that fall’s midterms.

 

But Trump usually doesn’t get anything meaningful for the political hits he takes. His tariffs are likely to be nuked by the Supreme Court. Nations like Canada and Denmark that he’s tried to muscle are standing firm and forming new alliances. Immigration crackdowns like Operation Metro Surge have done little to shrink the enormous population of illegal immigrants in the U.S. As bad as 2010 was for the left—the GOP picked up 63 House seats, six Senate seats, and flipped 20 state legislative chambers—imagine how much more dismal it would have been if Obamacare had also collapsed in Congress before passage. That’s the trajectory the GOP appears to be on.

 

There are two possible explanations for why the president keeps eating the pieces. One is that he can’t resist trying to bully opponents even when he has reason to know that doing so will backfire.

 

Practically every unpopular policy I named earlier has come packaged with off-putting insults aimed at its target and heavy-handed threats to make that target suffer for refusing to give Trump what he wants. That matters. One high-level European official recently told Politico that the president’s domineering approach has caused a “violent” change of heart among his colleagues about the U.S. government while another complained of the “lack of respect for Europe” that the administration routinely, and gratuitously, communicates.

 

The Gordie Howe Bridge episode came after a year of Trump foolishly taunting Canada about making it the 51^st state, and the crackdown in Minneapolis involved two separate attempts by the administration to smear Americans shot to death by federal agents as domestic terrorists. The boorishness with which America’s leader conducts business ends up alienating everyone outside his own churlish base, hardening the resistance of opponents whose pride he’s offended and alienating voters who might have been receptive to his ends but don’t want to associate themselves with the means. Not so strategic.

 

He can’t help it, though. The ethics of postliberalism plus his own domineering nature mean intimidation and compulsion will always be his One Neat Trick on policy. He didn’t set immigration agents loose on Minneapolis as part of some master strategic plan to boost the GOP’s popularity before the midterms, he did it because authoritarians don’t know how else to solve problems. He cares about public opinion, sure, but you know how it goes with snakes.

 

The second explanation is simpler: The president does not actually care about public opinion. Maybe he used to, but he’s now chest-deep in an autocratic reverie in which he gets to do whatever he wants and Americans will just have to deal with it until January 2029. He wanted a big fascist pageant in Minnesota carried out by his secret police force and that’s what he got. It’s a fantasy, a folie à deux that he and Stephen Miller are sharing in the West Wing.

 

Political strategy has nothing to do with it.

 

Under this theory, he might not even understand that his policies are unpopular. (Remember, there are people around him whose entire job is to deliver good news.) When you hear him boast in an interview about how great his numbers supposedly are or how much voters love his economy, it’s tempting to think that he’s trying to gaslight viewers. More likely, though, is that he’s gaslit himself and is earnestly convinced that Americans love tariffs, never mind what the fake-news polls say. He’ll continue to carry out his agenda because the people are begging for more.

 

It’s hard to reconcile this explanation with his decision to withdraw from Minneapolis, admittedly. Maybe his Republican allies in Congress, who are more in touch with reality, prevailed upon him to do them a favor by ending it. Or maybe the polling on ICE is so heinous that not even the president’s unreality bubble could withstand being punctured by it.

 

Whichever explanation you favor, strategy isn’t what’s driving his decisions.

 

The next fiasco.

 

That tees us up nicely for the immense strategic fiasco to come this fall, when Trump sends ICE into Democratic strongholds in hopes of frightening nonwhite voters into staying away from the polls on Election Day.

 

A shocking number of Americans (including me) already expects it. According to a poll taken earlier this month by Data for Progress, 64 percent agreed when asked if they believe the president “will attempt to deploy immigration enforcement agents to prevent participation in the 2026 midterms.” Don’t accuse them/us of Trump Derangement Syndrome: Steve Bannon, who knew in advance how Trump would react to losing in 2020, promised the MAGA faithful recently that ICE will “surround the polls” in November to prevent another election from being stolen.

 

Under either theory of Trump’s behavior that I’ve offered, it’s a fait accompli. The president will deploy ICE because there’s no way an authoritarian knows how to solve a problem like a looming midterm wipeout other than with intimidation and threats. Or the president will deploy ICE because it pleases him to imagine voters who are hostile to him having to run a terrifying gauntlet past masked goons who might detain them if they try to cast a ballot.

 

He might even persuade himself that Americans like the idea of armed federal agents trying to scare citizens out of voting.

 

In reality, the deployment would be an unholy political debacle for him and the GOP.

 

To begin with, I doubt it would deter many from turning out. The opposite, more likely—Latinos might take offense at the White House’s blatantly sinister attempt to keep them from exercising their rights and show up in numbers to signal their defiance. And if they do, we can guess which party most will be voting for.

 

Having ICE out in force will also complicate the sore-loser right’s sacred obligation to screech about cheating afterward. If Democrats win a majority of the House or Senate with immigration officers watching the polls, what will be left of the GOP’s inevitable claim that that victory was due to illegal immigrants voting unlawfully en masse? If anything, deploying ICE would hand the left a pretext to scream “fraud” in case Republicans end up overperforming on Election Day. We would have won, they’ll say, if not for Trump resorting to Putinist tactics to keep our voters from turning out.

 

But the stupidest part of ordering a big national ICE operation on Election Day is that it would double as a campaign commercial for Democrats, bought and paid for by our Republican president and playing out in front of Americans moments before they vote. The agency is wildly politically radioactive, per the polling I noted earlier; I can’t imagine a surer way to motivate the average joe to vote against the GOP than by reminding them in a starkly vivid way that a Republican win means two more years of a despised, lawless paramilitary force operating unchecked in America.

 

Well, I suppose handing voters a receipt as they enter their polling precinct showing them how much they’ve paid in tariffs over the last year (hint: a lot!) might be slightly surer. But apart from that, a show of force by ICE around the election is the closest thing I can think of to Trump waving a red cape before a bull that’s already preparing to charge.

 

Even a novice chess player wouldn’t make a strategic mistake that egregious. It would be less a matter of eating the pieces than eating the whole board—but it’s going to happen, with near-total certainty. Bon appétit, Mr. President.

Lefty Kooks 1, Trump Gun Thugs 0

By Kevin D. Williamson

Friday, February 13, 2026

 

The Trump administration has announced that it is abandoning its “surge”—you’ll remember that term from the Iraq War—in Minneapolis. Other than two dead Americans, millions and millions of dollars in economic losses, and the further erosion of trust in armed federal agencies, what exactly has been accomplished?

 

“As a result of our efforts here, Minnesota is now less of a sanctuary state for criminals,” said border czar Tom Homan, who remains on the job because he is dumb enough to get recorded taking a $50,000 bribe but is still somehow not quite as dumb as Department of Homeland Security Secretary Kristi Noem.

 

Like most of what one hears from senior figures in the Trump administration, that statement is a lie and is, in fact, something closer to the opposite of the truth: The policy result of Donald Trump’s imbecilic decision to respond to a Medicaid fraud case in Minnesota with the Border Patrol and ICE will be that Minnesota and Minneapolis are left with a deepened commitment to their sanctuary policies, convinced—as many other states and cities surely will be—that the price of active cooperation with the black-masked goon squads, thugs, bullies, incompetents, and Wehrmacht Generalfeldmarschall Rommel cosplay dorks entrusted with enforcing our immigration law is just too high.

 

And at least one observer who had been very skeptical about the wisdom of so-called sanctuary city policies is now a little more sympathetic to those arrangements—and surely I am not the only one. In Virginia—a state in which the 11-member House delegation is split almost evenly between Republicans and Democrats, a state that was happy to elect Glenn Youngkin but that has rejected Donald Trump three times in a row—lawmakers are considering new rules that would restrict federal immigration enforcement there, limiting where arrests can be made, for example, and putting restrictions on the wearing of masks. Virginia is not alone: New York, New Jersey, Maryland, and New Mexico are all looking at putting new restrictions on cooperation with federal immigration enforcers. Even in Texas, where sanctuary policies are (pending a final court ruling) forbidden by state law, cities such as San Antonio have made it clear that they will offer only the minimum level of cooperation required under law.

 

The Trump administration not only has made sanctuary policies more popular—the administration has, through its abuse of power, made those policies better policies. A world in which federal immigration law is enforced judiciously and thoroughly by properly trained professionals is a world in which it makes a great deal of sense for mayors and governors to make it easy for federal authorities to pick up illegal-alien felons being discharged from prison, to deport validated gang members illegally present in the United States, etc. But we live in a world in which thousands of masked gunmen were deployed by the president and his sycophantic DHS secretary as a punitive act of partisan political theater: Minnesota has a relatively small population of illegals, both in absolute numbers and as a share of the population, and the fraud scandal that preceded the surge had nothing to do with illegals—but it did happen in a state in which the feckless governor was Kamala Harris’s VP nominee and where there are a lot of black people with Muslim names. Donald Trump is no respecter of the truth in general, but that is doubly so when it comes to black people with Muslim-sounding names: Ask Barack Obama. J.D. Vance is no respecter of the truth in general but doubly so when it comes to black people with any kind of names: Ask Springfield, Ohio.

 

(No, I do not think J.D. Vance is a racist—he is a moral coward who knows that Haitian refugees in Ohio have no political power in spite of their being present in the country lawfully.)

 

Trump probably will use his pardon powers to prevent federal cases against Jonathan Ross (who killed Renee Good) and Jesus Ochoa and Raymundo Gutierrez (who killed Alex Pretti), but Trump cannot prevent state-level cases against those men from proceeding eventually, and he may not be able (or may not judge it to be in his self-interest) to prevent all federal action against them, or to protect those who have lied about—or, possibly, have altered or destroyed evidence in—those cases. Ross, Ochoa, and Gutierrez are very possibly headed to prison at some point and, while it may not yet be top of mind, they may find themselves in the not-too-distant future considering how they want that to go. Those men all have stories to tell. One suspects that none of those stories will fortify public trust in federal authority or in Donald Trump and his grotesque little junta.

 

After the excesses of the “mostly peaceful” George Floyd riots and suffocating political environment that came out of that upheaval, the perennial-protest left was on its back foot. No more: Trump has saved the left-wing piqueteros from their own worst tendencies, emboldened and empowered them, and—critically—handed them a political victory. Expect to see the Minneapolis model adopted in cities across the country as this panicky and incompetent clutch of fools lurches from crisis to crisis to midterms to 2028. Minneapolis has shown the left what works, seeing off Trump & Co. with very little more than a bunch of whistles, some worn-out protest chants, and just enough political discipline to keep downtown businesses from having to put plywood on their windows. Not since Trump saved Mark Carney and the Canadian Liberals from all but certain electoral defeat have we seen such an own goal from the retired game show host and quondam pornographer who serves, incredibly enough, as president of these United States of America.

 

All that drama, and we still don’t have basic immigration stuff like mandatory E-Verify. Kind of makes you wonder what it was all about, doesn’t it?

The Unnecessary Baggage of Trump’s Epstein-Tainted Associates

By Noah Rothman

Wednesday, February 11, 2026

 

In the hermetically sealed, ideologically homogenous salons in which progressive infotainment addicts confine themselves, the notion that Donald Trump is criminally implicated in Jeffrey Epstein’s sordid affairs is dogma. This leads the progressive politicians who cater to that audience to say things like this:

 

 

The president and his allies have not been able to leverage reckless remarks like these, render them liabilities, and impose a political price on their expostulators. They don’t even seem to be trying. It’s not at all clear why.

 

Over the weekend, the Miami Herald revealed new and credible details of the FBI’s mid-aughts investigation into Epstein’s criminal activities. The Herald’s report rests on the testimony of onetime Palm Beach, Fla., police chief Michael Reiter, whose Epstein-skeptical credentials are sterling. Reiter publicly criticized local prosecutors in 2006 when they opted not to charge Epstein outright but put the allegations against him before a grand jury. Reiter’s lobbying won out in 2008, helping scuttle Epstein’s non-prosecution agreement and paving the way for his conviction.

 

In 2019, Reiter provided the FBI with a statement in which he recalled a conversation he had with Trump in the summer of 2006. According to Reiter, Trump appreciated the former police chief’s work. “Thank goodness you’re stopping him; everyone has known he’s been doing this,” the future president reportedly said. In addition, Trump advised investigators to “focus” their attention on Epstein’s “operative,” Ghislaine Maxwell, because “she is evil.”

 

The revelation adds substance to Trump’s claim that he cut off relations with Epstein in the mid-aughts. It is certainly more compelling as the circumstantial evidence that Trump’s critics bring to bear to accuse Trump of complicity with, if not direct participation in, Epstein’s crimes. So, why isn’t the Trump administration making a bigger deal of this? Perhaps because doing so would make little sense given the company Trump and his movement keep.

 

This week, Donald Trump’s solicitor general, D. John Sauer, lobbied an appeals court to drop the charges against the president’s onetime aide and federal convict, Steve Bannon. Sauer argued “that dismissal of this criminal case is in the interests of justice.” If the appeal persuades the court’s justices, the move would effectively erase Bannon’s conviction on charges of obstructing the House investigation into the January 6 riots. (Bannon was also indicted over a scheme to bilk donors out of cash under the false pretense that they would fund the construction of the border wall, but the president pardoned his former associate for that one.)

 

There are many reasons why the Justice Department might circle the wagons around Bannon, most of which probably have nothing to do with the fact that he was chummy with Epstein long after the child abuser was convicted of his crimes. Indeed, even on the eve of Epstein’s final arrest, Bannon was committed to making a documentary about the former financier explicitly designed to rehabilitate his image. But the DOJ’s rally to Bannon’s side is conspicuous. Behavior like this is the agar in which conspiracy theories bloom.

 

Likewise, Commerce Secretary Howard Lutnick maintained surreptitious relations with Epstein long after he repeatedly claimed (once, under oath) that he cut the pervert off. “Lutnick previously said that he cut off contact with Epstein after 2005,” CNBC reported. But the so-called “Epstein Files” indicate that Lutnick was being deceptive. “In December 2012, Epstein invited Lutnick to lunch on his private island in the U.S. Virgin Islands, the documents showed. The two men also had business dealings as recently as 2014, CBS News reported.”

 

Trump and his allies should make hay of the Miami Herald’s discovery, but the political benefits they might reap from that exercise will be limited by the administration’s efforts to shield those in Trump’s orbit with deeper ties to Epstein from accountability. Certainly, figures like Bannon and Lutnick, who are guilty not of mere association but of misleading law enforcement, lawmakers, or the public, complicate the White House’s efforts to indemnify the president. It’s not at all clear why these two replaceable components in the MAGA machine are worth the effort.

Lawfare Is the Climate Warriors’ Best Friend

By Andrew Stuttaford

Thursday, February 12, 2026

 

Whether because of genuine terror of a climate apocalypse or a sharp appreciation of the political opportunity presented by such fears, there is an unmistakable authoritarian tendency within climatism or those who hope to benefit from it. So, in 2010, for instance, James Lovelock, a man who did not hide what he thought (he later walked back his climate alarmism), wrote in The Guardian:

 

Even the best democracies agree that when a major war approaches, democracy must be put on hold for the time being. I have a feeling that climate change may be an issue as severe as a war. It may be necessary to put democracy on hold for a while.

 

Under the circumstances, the fondness of some greens for “citizens’ assemblies” that would supplement (not, of course, replace) existing legislatures, especially (but not solely) in considering climate issues is no coincidence. France’s President Macron convened the Citizens Convention for Climate in 2019–20. Disappointingly for its participants, many of their predictably oppressive proposals were rejected by the French parliament. Democracy had failed the planet again! While many polls show some concern about the climate, few respondents are keen on following — at least in any manner that will be much of a burden for them — climate policymakers’ prescriptions. Despite this, and despite the destructive absurdity (and futility) of so much of the Paris-style agenda, a good bit of it is being pursued, mainly in the West and particularly in Europe, although the U.S. has not been immune.

 

All too often this involves bypassing the ballot box with methods characterized by ingenuity rather than fair play. This has included recourse to transnational “governance,” a hazy, metastasizing system in which both opacity and smugly collegial decision-making can lock in measures that electorates, given the chance, would disdain. As journalist Leigh Phillips relates, it “operate[s] on the basis of consensus among ‘stakeholders’ rather than . . . democratic popular mandate.” “Stakeholder” is a word that voters should dread.

 

And not only voters. Talk of stakeholders was ubiquitous in the marketing of ESG, a bogus investment “discipline” used to rob investors as well as voters. Tellingly, this scam, which blended corporatism, greed, and progressivism, owed much of its ascent to a report by a London-based international law firm. This had been commissioned by an obscure working group established under the auspices of a marginally better-known U.N. program.

 

ESG (the “E” stands for environment) together with its symbiont, stakeholder capitalism, were parts of a broader operation to conscript private capital into the climatist cause, an operation that never required democratic consent and until recently received little democratic scrutiny. Much the same can be said of the way that other aspects of climate policy have been assembled by an unelected caste that includes national, international, and transnational bureaucrats, NGOs, professional bodies, self-appointed committees, grifters, regulators, highly politicized foundations, mission-creeping courts, and countless busybodies, only one of whom is a former mayor of New York City.

 

The economic damage inflicted by climate policies in Europe is stirring up discontent, but the EU’s institutional process makes it difficult to change course. Moreover, buttressed both by EU and national law as well as the decisions by the (non-EU) European Court of Human Rights, a court that has long since gone rogue, the crusade to litigate a path to a cooler planet (one day) has continued apace.

 

Climatism has less of a grip in this country than in Europe, and such grip as it has may be weakening. But the U.S. doesn’t lack either creative trial lawyers or activist judges. For now, lawfare is one of the best weapons in the climate warriors’ arsenal. Some three dozen lawsuits are in the American legal system, with more to come.

 

A number of these are based on the ancient common-law tort of “nuisance.” In today’s U.S., this takes two forms (warning: oversimplifications follow). Public nuisance is the unreasonable (but not necessarily illegal) interference with rights enjoyed by the general public such as to their health or safety. Private nuisance can occur when an individual’s right to enjoy his or her property is significantly and unreasonably disturbed by activities that are again not necessarily illegal. Nasty smells from a neighboring factory might do the trick.

 

Climate activists are stretching the reach of (principally public) nuisance law a very long way, transforming it into yet more “legislation” passed outside the democratic process. Fortunately, there has been pushback. In American Electric Power Co. v. Connecticut (2011), the Supreme Court found that the EPA’s authority to regulate greenhouse gas (GHG) emissions could “displace” a plaintiff’s ability to file a public-nuisance suit under federal law. I wonder what the recent  repeal of the “endangerment” finding that gave the EPA that authority will mean, but that is a discussion for another time.

 

In City of New York v. Chevron Corp. et al., a public-nuisance case, the plaintiffs sought to hold Chevron, ConocoPhillips, ExxonMobil, Royal Dutch Shell, and BP — all Western companies, not so curiously — liable for some of the consequences of climate change under New York State tort law (the case went through the federal courts for procedural reasons). Yet at about the time the litigation began, the world’s largest oil-producing companies were (in order) Saudi Aramco, Russia’s Rosneft, Kuwait Petroleum Company, NIOC, the National Iranian Oil Company, China National Petroleum Company, yes, ExxonMobil, Petrobras, the UAE’s ADNOC, yes, Chevron, and Pemex. Ruth Bader Ginsburg in American Electric Power, reminds us that  emissions “in New Jersey may contribute no more to flooding in New York than emissions in China.”

 

Holding specific oil companies responsible for specific harms supposedly caused by man-made climate change makes a hash of any sensible notion of causation, and not just for the reasons given by Ginsburg. As the U.S. Court of Appeals for the Second Circuit noted in a judgment upholding a lower court’s dismissal of New York City’s case, Gotham was requesting damages for “the cumulative impact of conduct occurring simultaneously across just about every jurisdiction on the planet” (emphasis added). The plaintiff nodded to this by pointing to the relatively larger historical role played by some of the defendants since “the mid-nineteenth century.” But back then and for much of the time since, the contribution to total GHG emissions by oil has been exceeded by coal, sometimes by a considerable margin, and much of the latter will still be in the atmosphere.

 

And why focus only on the suppliers of fossil fuels? If plaintiffs are looking for people to blame, should they not also turn on the miscreants who directly or indirectly use those fuels, such as manufacturers, construction companies, farmers, mass-transportation companies, commuters, drivers, households, and so on and so on? The list is endless. As the South Carolina court phrased it in City of Charleston v. Brabham Oil Co., “The plaintiffs cannot use South Carolina law to seek redress for cumulative emissions from billions of sources worldwide.” Billions? Yes. If it had been brave enough to follow its own arguments through to their logical conclusion, New York City should have sued itself and, among many, many others, its own citizens, admittedly a politically dicey maneuver.

 

Unless fairness is to be jettisoned along with democracy, litigation is too crude a tool to resolve the issues raised by a changing climate. The court in the New York case was correct to note that “to permit this suit to proceed under state law would risk upsetting the careful balance that has been struck between the prevention of global warming . . . and energy production, economic growth, foreign policy, and national security.

 

Put another way, the court recognized not only this subject’s complexity but also the trade-offs that come with it, a balance more properly decided by legislatures than judges. That is not what climatists want. They know how voters would react if asked how much they are prepared to pay in terms of living standards, economic growth, and national security in a “race” to net zero in which India, China, Russia, and Indonesia have little interest in participating.

 

For all that, it’s clear from cases such as Mayor and City Council of Baltimore v. B.P. P.L.C., et al., which primarily revolve around public nuisance, that state courts can, at least in theory, consider such suits under their laws, raising the possibility of 50 different answers to roughly the same question. For courtroom climate warriors, the uncertainty thereby fostered in fossil fuel companies’ C-suites is a feature, not a bug. More uncertainty equals less capital and less investment.

 

As it happens, the Baltimore case foundered in its home state (so far: there is an appeal). A Maryland judge ruled in 2024 that “global pollution-based complaints were never intended by Congress to be handled by individual states.” And neither were “interstate controversies,” let alone a dispute that ought to reflect the fact that more fossil fuels were used outside the U.S. than in it: “Only federal law can govern claims based on foreign emissions, and foreign policy concerns foreclose any state law remedy.”

 

On the other hand, Hawaii’s supreme court allowed a case launched by Honolulu against numerous oil companies to proceed. Without giving reasons, SCOTUS declined to intervene. There has been speculation that this was because an important element in the case rests on the defendants’ allegedly deceptive practices — not warning about climate risks — malpractice that remained within the state’s jurisdiction.

 

Similar arguments failed in New Jersey (there may yet be an appeal), New York, Pennsylvania, and South Carolina, as on any reasonable basis they should have. If damage (allegedly) attributable to climate change is not actionable, failure to warn about it should not be either. Besides, the idea that CO2 emissions might warm the climate has been in circulation since the 19th century, and warnings about the consequences have been growing louder and louder for decades. In her judgment in the New York case, the judge observed that, in another case, the same plaintiff had alleged “there is near universal consensus that global warming is primarily caused, or at least accelerated, by the burning of fossil fuels.” It could not, she declared, “have it both ways by, on one hand, asserting that consumers are aware of and commercially sensitive to the fact that fossil fuels cause climate change, and, on the other hand, that the same consumers are being duped by Defendants’ failure to disclose that their fossil fuel products emit greenhouse gases that contribute to climate change.”

 

Nevertheless, the Honolulu case rolls on, as do other state-law climate cases including a much-watched suit by the City of Boulder and others. The Colorado Supreme Court has ruled that it can proceed, but SCOTUS has yet to give its view.

 

In Leon v. Exxon Mobil, oil companies are being sued for a Washington State woman’s death from hyperthermia “during the hottest and deadliest heat wave the Pacific Northwest has ever experienced.” A federal court rejected the defendants’ attempt to transfer the case into the federal courts, and it’s now moving forward under state law.

 

Leon may foreshadow the arrival in courts of “climate homicide,” a concept being pushed, among others, by David Arkush, the director of Public Citizen’s Climate Program, and that could be expanded to include lesser offenses such as “reckless endangerment.” The criminal justice system could be exploited far more effectively than any civil suit. Arkush has mused about “rewrit[ing] the charters of fossil fuel companies and requir[ing] them to advance the clean energy transition and donate proceeds to resilience, adaptation and compensating people for past harms.”

 

And all without the need to consult voters.

 

Legislation by litigation is easier under a constitution. Judicial interpretations of a constitution’s language can become entrenched, almost beyond the electorate’s grasp. This is an alluring prospect for climatists and judges who may share their views. In Held v. Montana, the state’s supreme court agreed with the plaintiffs, a group of children backed by a “public interest” law firm, that the provision in the Montana Environmental Policy Act prohibiting the state from considering climate change before approving fossil fuel projects was unconstitutional. Legislators responded by passing new laws to which the original plaintiffs (and some reinforcements) have mounted a new challenge.

 

Montana House Speaker Brandon Ler, a sponsor of some of the new legislation, complained about “activists . . . using the courts to achieve outcomes they cannot win through the legislative process.” His annoyance is understandable, but the judiciary’s ability to overrule the legislature is part and parcel of a constitutionally based order. Overturning the Held cases and any successors may take a constitutional amendment, and as is true elsewhere, Montana’s is not easy to amend.

 

Unless the Supreme Court and/or legislators at the federal or state level step in more forcefully, climate cases are not going away. There is plenty of money to fund them from deep-pocketed governments, aggressive trial lawyers (whether motivated by profit, ideology or both), leftist foundations, and NGOs. The increasing unpopularity of today’s climate policies — together with their partial reversal under the Trump administration — will mean more lawsuits, not fewer.

 

The authors of an amicus brief filed with SCOTUS by 20 states ahead of its hearing of the Honolulu case talked of “a clear split between courts that will entertain state-law suits over interstate emissions and courts that will not.” The result will almost certainly be, as the South Carolina court put it, to create a “chaotic web of conflicting legal obligations.”

 

That is because there’s an obvious danger that, sooner or later, one or more of these plaintiffs will win a victory of an importance that far transcends their win in Montana. To borrow some wording from the Honolulu amicus brief, that could “trigger a national emergency or fashion a patchwork of new taxes on the Nation’s energy system that would make life harder for every American.”

 

Such a victory would not be a victory for the U.S. Who could want that?

 

Politico (June 6, 2025):

 

Texas Republican Sen. Ted Cruz at a hearing Wednesday accused environmental groups, backed by China, of waging a “full-spectrum assault” against fossil fuels through climate change litigation.

 

Backed by China?

 

To be continued . . .