Discrimination in the Name of Diversity

By Christian Schneider

Thursday, October 22, 2026

 

Nearly a decade ago, Maryland’s largest public school district decided it had a problem. It didn’t involve student safety or plummeting test scores. It was that too many Asian-American children were being accepted into its magnet program for exceptional middle-schoolers.

 

This week, the U.S. Supreme Court accepted a case that will decide whether Montgomery County Public Schools’ plan to rebalance the racial makeup of the program violated the Constitution’s promise of equal protection under the law.

 

By the 2013–14 school year, half the students accepted to the county’s four magnet programs were Asian-American. To “correct” this “problem,” the district commissioned a study to see how it could begin to de-emphasize traditional criteria in an effort to grant more spots to black and Hispanic children.

 

Released in 2016, the report concluded that there were “significant racial and socioeconomic disparities in the enrollment and acceptance rates to academically selective programs, which suggest a need to revise the criteria and process used to select students for these programs.” The report suggested “broadening the definition of gifted” to include “non-cognitive measures such as motivation and persistence, using group-specific norms that benchmark student performance against school peers with comparable backgrounds,” and “offering automatic admissions for students in the top 5-10% of sending elementary or middle schools.”

 

The motivations in seeking these changes were not subtle. A board member expressed concern over the “substantial underrepresentation of students of color” in the magnet programs and expressed hope that “programs will become more diverse and be more reflective of our student population.”

 

As is the case with college admissions, concerns over the inclusion of “students of color” do not apply to Asian Americans, a group once largely barred from entering the United States by the federal government. And when the Montgomery County school district began running field tests using their new criteria, they got the result they wanted. At one magnet school, the percentage of Asian-American students in the program dropped from 45.6 percent to 31.5 percent, while the proportion of black, Hispanic, and white students all rose (by 5.3 percent, 8.3 percent, and 2.7 percent, respectively). At another school, the percentage of Asian-American participants dropped by 27.9 percent and at another by 15.4 percent.

 

Asian-American parents noticed. So did the school board, whose complaint was that the field test hadn’t gone far enough. One member had already warned colleagues that “if we expand blindly we are going to end up in the same place ten years from now,” because “privilege is not going to go away.” In Montgomery County, apparently, “privilege” is what you call a ten-year-old who aces a cognitive abilities test.

 

The mechanics were clever, in the way a pickpocket is clever. The new field test’s “peer grouping” rule made it harder for kids at high-performing elementary schools to win seats. A “local norming” provision scrapped the countywide yardstick and graded children on their own school’s curve. Asian-American families in the county are clustered in a handful of high-performing schools, so the district never had to write the word “Asian” anywhere. Geography did the sorting.

 

When a group of mostly Asian parents sued in 2020, the district swapped the field test for a lottery open to students scoring in the 85th percentile on a standardized assessment. Those percentiles were locally normed, too. Data the parents later obtained showed that kids at schools with the lowest rates of poverty among their school population needed to score in the 93rd percentile countywide to qualify for the STEM lottery. Kids at the county’s highest-poverty schools needed to score in the 60th percentile. This made it even harder for Asian-American students to qualify for the STEM programs than under the field test.

 

Yet the parents lost, and not because a court found that the district had done no wrong. The Fourth Circuit had adopted a rule in a similar case involving Virginia’s Thomas Jefferson High School. Under it, a plaintiff can’t even raise discriminatory intent unless the targeted group’s share of admissions falls below its share of the applicant pool. Asian-American kids didn’t fall below that line, so the case was tossed. Intent never entered the room.

 

The current legal standard is therefore that a school board can set out to shrink a racial group’s numbers, succeed, and still walk away clean, so long as the victims stubbornly keep outperforming everyone else. Justice Samuel Alito, dissenting when the court passed on the Thomas Jefferson case, said the rule “effectively licenses official actors to discriminate against any racial group with impunity as long as that group continues to perform at a higher rate than other groups.” The crime is excused because the victims were too good at surviving it.

 

The circuit courts have now split. The First and Fourth apply the Thomas Jefferson standard. The Second and Third, in cases from New York and Philadelphia, have rejected it. So a Maryland sixth-grader’s equal protection now depends on which side of the Mason-Dixon line her parents bought a house.

 

The Supreme Court’s own precedent says this can’t stand. In the 2023 case Students for Fair Admissions v. Harvard, Chief Justice John Roberts wrote that “eliminating racial discrimination means eliminating all of it,” and that what cannot be done directly through racial quotas cannot be done indirectly through ostensibly race-neutral programs with disparate impacts. Sixteen years earlier, he put it more simply: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

 

G. K. Chesterton observed that America is the only nation founded on a creed. That creed’s first article is that government treats citizens as individuals, not as tokens of a group. Montgomery County wanted its magnet programs to “reflect the community.” The Constitution asks for something harder: that the community treat each child as a person. The justices now get to remind the district which one is the law.

Impunity or Bust

By Nick Catoggio

Tuesday, October 20, 2026

 

What if Ilhan Omar did it?

 

It’s fine and fair to call the federal probe of the Democratic congresswoman’s immigration history “appalling,” as Barack Obama did recently. The Trump administration’s motives in the matter are malign, as usual. But it doesn’t follow from the fact that the president’s flunkies have bad intentions that Omar is innocent.

 

And it sure doesn’t follow that she should face no consequences if she isn’t.

 

What if the feds find evidence that she really did direct aides to falsify records related to her birthdate, to conceal that she was too old to receive “derivative” U.S. citizenship as a minor from her father?

 

That would raise sticky questions about the appropriate penalty. Should she be denaturalized and deported to Somalia, where she hasn’t lived since she was a child? Should she be allowed to remain in the U.S. but expelled from Congress? Should she be prosecuted and jailed for fraud?

 

If Trump’s investigators get the goods, Americans will have a robust debate about which punishment fits the crime in this strange situation. But there needs to be some punishment. The result of Ilhan Omar gaining citizenship fraudulently and then covering it up cannot be to shrug and say, “Sorry, she’s a member of the House. She’s above the law.”

 

In America, we don’t drop meritorious criminal cases just because the suspect managed to land him- or herself an important government job. Normally.

 

The Republican Party will come together behind that message if and when Omar’s wrongdoing is revealed, oblivious to its own preposterous hypocrisy. Yet when another Midwestern Democrat, Michigan Sen. Elissa Slotkin, made a variation of the same point a few days ago, right-wingers howled. The president, of all people, called her a “lowlife” for suggesting it. Why?

 

Lawfare?

 

Full context is essential.

 

Speaking at an event in Chicago, Slotkin considered how her party might get the most bang for its accountability buck when investigating the Trump administration if it regains control of Congress. First, she said, we should zero in on a few “signature cases” where the corruption has been especially egregious. Second, we should include lower-ranking staffers who facilitated that corruption as targets. In a world where the president enjoys broad personal immunity for his criminal activity thanks to the Supreme Court, deterring official misconduct necessarily requires making an example of his enablers too:

 

We do have to have accountability for the unbelievable corruption that we are living under right now. But you can’t just make that your whole personality, right? So you have to pick signature cases and you have to go after people and projects that are just super egregious. So everyone knows the East Wing of the White House, right? People feel that in a way that’s different from a nameless contract at the Pentagon, or whatever.

 

Pick those signature cases and go hard on accountability. Not just Trump, right? Because, of course, there will be moments of “Let’s go after Trump himself.” As someone who voted to impeach him twice, he’s still there, right?

 

But the people around Donald Trump who are doing his bidding and enabling this have no such immunity. They have no immunity the way the president does. And to me, he couldn’t do any of this stuff, without all of those people saluting and supporting it. So you go after the people who do his bidding.

 

A few minutes later she returned to the point, referring back to the “signature cases” of corruption she mentioned in the excerpt above:

 

I wanna look at these signature cases and not just focus on the president but on the people who enabled him. I want young people coming out of school to say, “Should I go work for the Trump administration? Like, that sounds fun. I might get an opportunity.” I want them to be like, “Lord, that might be buying myself a ton of problems that I don’t want. And so let me avoid participating in that.” I want that deterrence message sent.

 

Would it surprise you to learn that that second excerpt, shorn of the context of the first, went viral within the same right-wing circles that were certain James Talarico recently spent a week in an insane asylum?

 

The viral clip, in isolation, made it seem like Slotkin was saying that Democrats should harass Trump staffers baselessly, to discourage young Republicans from working in politics. In context, it’s clear that she’s saying she wants to expose actual corruption by White House staffers in order to alert college grads to the true nature of the Trump administration (in the admittedly unlikely event that they don’t know already). Those kids might have good intentions in applying for a job with the president, believing they’re joining a traditional political operation, only to realize too late that what they’ve actually joined is a criminal syndicate.

 

If a cop warns a teenager not to join the local gang because the gang will expect him to do things that will land him in prison, is the cop threatening the teen? Or is he giving him good advice?

 

No matter. This is lawfare, the Talarico truthers (and the Wall Street Journal editorial page) insist. Elissa Slotkin wants to weaponize government.

 

What’s the alternative to “weaponization” in this? Total, up-front criminal impunity for all?

 

Real outrage or fake?

 

I’m not taking the outrage at Slotkin seriously. Almost certainly, as with the Talarico smear, it’s a last-ditch bid by right-wing activists to jumpstart Republican outrage—and turnout—in a dismal election cycle. They’re demoralized by the polls and by Trump’s idiocy, and they’re sick to death of having to play defense politically after doing so for the past 21 months.

 

They became activists in the first place because they relish feasting on the left. Deprived of a foil since January 2025, they’ve grown ravenously hungry. So they’re making a meal out of a distortion of her point.

 

But let’s say I’m wrong and their outrage is sincere. It can’t be that they sincerely doubt that the Trump administration is corrupt, can it?

 

I don’t believe it. Even right-wing media, which can convince its audience of almost anything, has struggled to contain the evidence of rampant malfeasance in the government. The data bears that out: In addition to corruption rising to the top of voters’ list of issues about which they’re “very concerned,” nearly two-thirds of Americans now say they believe Trump is using the presidency to enrich himself. That includes 34 percent of Republicans, up from 22 percent last year.

 

CNN reported this week that GOP strategists were “taken aback” recently by what they heard from a focus group of Republican voters in the Midwest. “Asked what they blamed for rising gas prices, those voters pointed to ‘corrupt politicians’ and ‘billionaires,’” the outlet noted, “a response that surprised some longtime strategists who’ve never seen government corruption emerge as a top issue for so many Republican voters in congressional races.” This issue has broken through.

 

And no wonder. New exposés of self-dealing and suspected influence peddling by the president or his toadies circulate practically every day. This weekend the New York Times reported that the ongoing spat between Trump inner-circlers Ric Grenell and Alina Habba Mildon now involves a mysterious $17 million transfer from the Democratic Republic of Congo—and I haven’t mentioned it until now, because why bother? Who has time? There’ll be another story like it in a few days at most.

 

Can’t blog ‘em all.

 

And that’s just financial corruption. If we widen the aperture to include other forms of unethical conduct, every filthy thing that the president’s Justice Department has done to aid his political allies and persecute his political enemies is part of this discussion as well. In a piece about Slotkin, law professor Jack Goldsmith couldn’t resist quoting the most ludicrously over-the-top examples of Republicans criticizing her this week for “weaponizing” government while Team Trump goes about trying to lock up James Comey for posting a photo of seashells and launches antitrust probes of news networks for boycotting the president’s appearances.

 

Tit for tat.

 

Slotkin herself is a victim of Trump administration “lawfare,” in fact. She was one of six Democrats who contributed to a video last year reminding military personnel not to obey any illegal orders they might receive—functionally the same advice she gave to young Republicans this week when she urged them not to get involved in the president’s racketeering operation, as Slotkin herself pointed out in an interview. The Justice Department responded to her “illegal orders” video by opening an investigation into her.

 

Even the umbrage taken at the senator for supposedly trying to discourage young right-wingers from working in politics is comically hypocritical. If you’re a civic-minded young conservative who’s willing to blow the whistle on wrongdoing when you see it, how eager are you to work for this government as you watch Trump’s Justice Department try to railroad Cassidy Hutchinson for testifying against him?

 

At best, we might fault Slotkin for wanting to target relatively powerless Trump staffers in corruption inquiries instead of sticking to the principals. But, realistically, what choice do she and Democrats have? The whole reason the president pardoned his January 6 henchmen en masse and later tried to remunerate them with taxpayer money is because he wants to incentivize his enablers to behave corruptly on his behalf. That incentive needs to be countered.

 

If any part of the right-wing outrage at Slotkin is sincere, then, its sincerity has little to do with whether Trump is corrupt. What it has to do with, I think, is needing to believe that his corruption is justified. That’s why the president continues to waste DOJ resources on trying to prove some “grand conspiracy” within federal law enforcement to discredit and undermine him dating back to 2016. If he can show that Democrats were corrupt first, all of his own subsequent abuses become nothing worse than tit for tat. Rough justice, if you will.

 

And as the right is reassured that Democrats are no better than Trump is, it will also feel reassured that its pitiful indulgence of his runaway corruption is less a catastrophic moral failing than simply politics as usual. That’s why Slotkin’s comments created a sensation among MAGA, I suspect: Sure, the Republican president is blatantly using government power to persecute innocent partisan enemies—but look, here’s a Democratic senator who wants to do the same thing, at least according to the bowdlerized version of what she said. Tit for tat.

 

Why, if anything, she’s more ruthless than the president is, aiming to go after the fine young staffers in the other party.

 

Goldsmith wonders how the cycle will ever end. Referring to Jack Smith’s indictments of the president, he writes in his piece on Slotkin that Trump has “engaged in astonishingly harsh and broad retaliation for what the Biden administration did, in order to deter rivals on many dimensions. The Democrats are now contemplating whether and how to respond when they gain power. The incentive for brutal retaliation will be overwhelming, especially since it will be argued … that the other side has already done it, will do it again if possible, and thus must be maximally deterred.” And of course, if Democrats gain power and move to hold Trump apparatchiks legally accountable, Republicans will retaliate once they’re back in charge.

 

There’s no way out of tit for tat. Or is there?

 

1975.

 

Here’s a question. Why wasn’t the Justice Department “weaponized” against Democrats in 1975?

 

Gerald Ford, a Republican, was president. His predecessor, Richard Nixon, had just been driven from office by congressional Democrats’ investigation of the Watergate scandal. Tit for tat: After the opposition used government power to claim the ultimate Republican scalp, the GOP was in a position to sic the DOJ on Democratic bigwigs and repay the favor. Why didn’t it?

 

“Because Ford was a patriot and a decent man” is true and part of the answer, but a minor part. The greater part is that Nixon was guilty. He did it. And most Americans understood, and accepted, that the partisan valence of congressional Democrats’ investigation into his chicanery didn’t mean that their investigation was illegitimate.

 

They accepted it so overwhelmingly, in fact, that Nixon’s Republican Party was obliterated at the polls in 1974, three months after he resigned. Democrats gained four seats in the Senate that year, pushing their majority above 60, and 49 seats in the House, handing them a supermajority.

 

So strong was the national consensus in favor of accountability that it was Ford’s own Republican-led Justice Department that prosecuted Nixon’s various toadies and co-conspirators, an unthinkable development today. And when Ford ran for the presidency a year later and lost, his defeat wasn’t blamed on his willingness to go after members of his own party. It was blamed (in part) on his decision to pardon Nixon—that is, to drop a meritorious criminal case just because the suspect once held an important government job.

 

To end the cycle of tit for tat, we need the Republican Party and its base to accept that legal accountability for Trump and his toadies isn’t per se illegitimate simply because Democrats are the ones pursuing it. They need to care about punishing actual, bona fide corruption more than they care about lib-owning.

 

They didn’t care in 2024. Trump almost certainly committed federal crimes when he concealed classified documents at Mar-a-Lago, one of the two cases brought against him by Jack Smith while he campaigned for reelection. In the other, he was charged with fraud and obstruction of justice related to his post-election shenanigans in 2020, as that was the best Smith could do to shoehorn a coup attempt—the worst thing any president has ever done, and which Congress never thought to explicitly criminalize because such a thing seemed unimaginable—into the federal code.

 

There’s no doubt that partisan motives figured into Democrats’ decision to pursue Trump, just as there’s no doubt that partisan motives are driving the current administration’s interest in Ilhan Omar. (Republican officials suspected of crimes get off scot-free in this administration.) But as with the congresswoman, so with the president: If there really is a crime, there should be punishment. The American people of 1975 didn’t let congressional Democrats’ glaring partisan interest in unseating Nixon undermine the higher civic imperative to make sure that corruption was punished.

 

Nixon deserved what he got, so there was no subsequent tit for at. The same will be true if and when grassroots Republicans accept that Trump’s administration should be held accountable for its abuses—even by Democrats, if need be—for the good of the party and the country. An optimist might even point to the recent polling on corruption that I flagged earlier and see a glimmer of hope that the right is slowly stumbling toward enlightenment.

 

But not me.

 

It’s no coincidence, I think, that the Trumpist right has begun “Nixonmaxxing,” peddling revisionist history about the 37^th president to try to will into being a new Republican consensus that Tricky Dick got a bad rap. Rehabbing Nixon was inevitable in this movement, and not just because his ruthlessness appeals instinctively to postliberal cutthroats. Here, as with Slotkin, modern Republicans are eager to believe that their own moral degeneracy isn’t all that awful and aberrant but really just politics as usual—and has been so since 1974.

 

“If Watergate happened tomorrow, it would be like a 12-hour news story,” J.D. Vance told an audience this summer. “Like, the idea that it would have taken down a presidency is crazy. And by the way, if you look at the story of how the deep state took down Richard Nixon, it’s not all that different from what the same groups of people, the same institutions, tried to do to Donald Trump in the first Trump administration.” That’s a supremely efficient example of how Republicans rationalize the corruption they’ve chosen to condone: Somehow, in a single breath, Nixon’s criminality is both true and false, minor malfeasance at best but also a hoax that was invented by his enemies to ruin him.

 

No big deal either way. Certainly nothing to demand accountability for.

 

If you’re angrier at Elissa Slotkin for trying to discourage young Republicans from joining a nihilist outfit that believes such things than you are at Vance for promoting that nihilism, you’re an enabler yourself. And part of the reason why tit for tat will continue.

Will Anyone Stop America’s Creeping Socialism?

By Scott Lincicome

Thursday, October 15, 2026

 

When I first checked in last year on the Trump administration’s unprecedented ownership stakes in private U.S. companies, I warned that the 10 equity deals—and “the year America went (kinda) socialist”—gave us plenty to worry about. Ten months later, Uncle Sam’s equity portfolio has now grown to cover 35 deals across the steel, critical minerals, semiconductors, quantum computing, nuclear power, rocket motor, and crude oil industries, using a variety of laws and agencies to acquire the stakes. Even more deals are likely on the way—including ones, such as the new Andruil submarine arrangement announced last week, that give Washington a stake in certain projects instead of entire companies.

 

Given the radical and opaque nature of the Trump administration’s moves—recall that Washington hadn’t taken a non-crisis stake in a healthy company in decades—Cato this week launched our Restoring Free Enterprise project to document, analyze, and counter the trend.  As I wrote in the project’s introductory essay and in an August piece for the Washington Post, the government’s ownership stakes raise serious problems that have already begun to materialize: capital misallocation, politicized business decisions, preferential treatment, state coercion, corruption, and more.

 

Yet the biggest problem of all might be the simplest: Nobody—not even the Trump administration’s own lawyers—can point to a single U.S. law that expressly authorizes the executive branch to do any of this. That omission is glaring, and it matters for the stakes themselves, for how they might get unwound, and for whether anything stops the next president, of either party, from doing more of the same.

 

What the law actually says.

 

It’s been 16 months since the government took its first stake (last June’s U.S. Steel “golden share”), yet the Trump administration still hasn’t offered a clear and detailed legal justification for that deal or any other equity-based transaction. When Sens. Jack Reed and Roger Wicker asked about the legality of the Defense Department’s equity deals at a Senate Armed Services hearing in March, the Pentagon’s top industrial-base official said government lawyers would soon submit something to Congress on the issue. You’ll be shocked to learn that we’re still waiting for the memo. Other agencies have been similarly circumspect, offering little more than a press release with a statutory citation and no elaboration. Sometimes, we don’t even get that.

 

 

The Trump administration’s silence is notable—and troubling. Without a clear and official paper trail for all these equity deals, the public is left to guess as to how these expansive new powers—influencing or even controlling private companies!—are permissible under the law. The table below, constructed from press releases, SEC filings, and third-party reporting, is one such guess (and it’s admittedly incomplete). As the final column shows, none of the laws implicated by these deals expressly authorizes the federal agency at issue to take an ownership stake in a private, U.S.-based company:

 

 

In court, a Justice Department lawyer and Commerce Secretary Howard Lutnick recently argued that the CHIPS Act expressly authorizes the government’s Intel stake, but this is clearly false. Instead, these laws say the government can offer grants, loans, and other subsidies to target companies, and some of them contain broad language—e.g., “mitigation agreements” for transactions reviewed by the  Committee on Foreign Investment in the United States (CFIUS) or “payments” and “other transactions” under the CHIPS Act—into which one could argue that equity arrangements fall. Yet none of these laws is new—the Defense Production Act that created CFIUS dates back decades; the Advanced Technology Vehicles Manufacturing (ATVM) loan program program started in 2008; the Industrial Base Fund began in 2011; CHIPS was enacted in 2021; and the Office of Strategic Capital in 2022—and no president has ever used them to acquire direct ownership interests like the ones Trump keeps taking. (A single ATVM loan to Tesla in 2010 gave the government the right to eventually exercise warrants to buy Tesla stock between 2018 and 2023, but the warrants were terminated when Tesla repaid the loan in 2013.)

 

In other words, numerous presidents of both parties did not read these laws as a broad license to indefinitely hold stock in numerous private companies. Only Trump did.

 

As Georgetown’s Peter Harrell explained last year, the administration’s best legal argument here is simply that the language of these laws is vague and does not expressly forbid taking a golden share, equity stake, or other slice of the corporate pie, and a target firm could always just walk away if it didn’t like the government’s terms. Yet this argument fails for several reasons.

 

For starters, this is Washington we’re talking about, and there’s already evidence in several cases that these companies couldn’t just walk away from the equity deals (i.e., demands) they were presented. As I noted in the Post, in fact, the Intel deal and others appear to have been coerced by the Trump administration or “conditioned on the granting of a permit, subsidy or other government privilege.” When the federal government wants a slice of a company whose business depends on something Uncle Sam has, saying no isn’t really an option. And it’s foolish (at best) to pretend otherwise.

 

There’s also clear evidence that Congress knows how to say “equity” when it wants equity, just like it knows how to say—and does say—“grants” or “loans” in these very same laws. In CHIPS, for example, Sens. Bernie Sanders and Elizabeth Warren proposed an amendment forcing subsidy recipients to hand over equity, but it never passed. This year, Republican-led committees in the House and Senate have advanced legislation to authorize the Pentagon to make government equity investments with certain limitations, but those aren’t yet law, either. On the other hand, the Troubled Asset Relief Program expressly required the Treasury Department to obtain warrants (or senior debt) from the institutions it bought assets from, and the CARES Act barred Treasury from lending to eligible large businesses without receiving warrants or equity. (Both laws were also enacted during crises, of course.)

 

In a forthcoming essay for the Restoring Free Enterprise project, Cato legal expert Molly Nixon examines this statutory language in detail, finding that none of the laws behind today's equity stakes contain anything like it. That matters—or, at least, it should.

 

The Trump administration also knows about equity authority—until it doesn’t. When Trump’s Venezuela oil deal was announced, for example, a spokesman for the Pentagon’s Office of Strategic Capital initially said that the office doesn’t take equity stakes in private companies. A few days later, another U.S. official claimed, without evidence, that Congress had given OSC exactly that power. Semafor, meanwhile, reports that Congress previously had declined Pentagon requests for equity authority, and over at Lawfare, Benjamin Press elaborates on the administration’s selective memory in this case (emphasis mine):

 

At the outset of the second Trump administration, the executive branch evidently believed that the department lacked clear authority to take equity stakes, and the Office of Management and Budget requested language in the National Defense Authorization Act (NDAA) for Fiscal Year 2026 that would have granted the Defense Department the authority to do so. Nevertheless, no such language was added to the NDAA—or any other law. In other words, the only thing that could have changed between the beginning of the Trump administration, when the White House evidently believed that the Defense Department lacked clear authority, and mid-2025, when the department began making its investments, is its interpretation of existing authorities.

 

The administration’s new “interpretation,” meanwhile, appears to be distressingly thin. As Semafor reported last month, a June 2025 memo from the Office of Management and Budget claimed that a $400 million investment in MP Minerals was legal simply because it was “necessary to avoid an imminent threat to human life and government property.” The opinion also cited the Defense Production Act, a 2017 defense authorization, Article II of the Constitution, and—I kid you not—the “venerable tradition of presidential obligations in advance of appropriation” stretching back to 1792. (None of these things, of course, actually authorize equity stakes.) Former Pentagon officials briefed by Semafor said they were “skeptical” of OMB’s legal reasoning. “[I’m] surprised that the current team has discovered the authority to do this under the Defense Production Act,” one former OSC official told the outlet, adding that “laws can be elastic, but elasticity snaps at some point.” Sigh.

 

These justifications, by the way, are the best of the bunch. Some, such as the Commerce Department’s “participation interest” deal with Westinghouse or the government’s cut of Nvidia and AMD chip sales to China, don’t even bother with a statute. (Nvidia is now getting sued in Delaware on the grounds that the government is “constitutionally barred from imposing duties or taxes on exports.”) Trump’s Venezuela oil deal is even sketchier.

 

Finally, there are the obvious and troubling implications of an executive branch declaring sweeping and unprecedented new powers simply because Congress didn’t expressly bar such actions. As I explained in a new podcast accompanying the Restoring Free Enterprise project rollout, that’s an argument for unlimited executive power, not just for equity stakes, and it directly contradicts our constitutional system of government and enumerated powers. Even folks who are decidedly not from my libertarian side of the law, such as Georgetown’s Harrell and Biden-era Assistant Secretary of Defense Laura Taylor-Kale, are uncomfortable with where this is all heading.

 

So, how do we stop it?

 

That leads us to what might be the worst part of it all: Without any clear legal framework for doing this stuff, there’s no clear way to undo it or to stop more transactions in the future. As already noted, the pace of these deals has accelerated in 2026, and Trump has literally said that his standard for taking government equity stakes is simply “when people need something.” Trump and his team will surely announce more deals this year and next (another one popped up while I was typing this). And whoever wins in 2028, Republican or Democrat, will inherit both the portfolio and the unbridled power to expand it. The economic and political consequences—private capital increasingly flowing to the connected, a government with a direct financial interest in a growing set of firms, crony losers flocking to D.C, for an equity bailout, a president who increasingly uses stock deals to reward and punish American companies, and plenty more—could be enormous.

 

Congress could pass a law to force divestment and dismantle these (implied) powers, but that’s easier said than done. Some Democrats are uncomfortable with the equity deals, but many others—and not just Bernie Sanders and his fellow travelers—simply want more transparency and structure around them. Meanwhile, the party campaigning against “socialism” this fall is ironically the one advancing bills to authorize equity investments rather than terminate them. There are welcome exceptions—Sen. Jon Husted introduced a bill requiring covered stakes to be liquidated, and Sens. Thom Tillis and Mike Rounds have criticized the deals—but they probably won’t be the rule as long as Trump’s in office. Thus, securing a veto-proof majority for broad divestment legislation will likely be a serious challenge for the foreseeable future.

 

That leaves the courts, but the path here is also difficult and murky. Most companies with government equity stakes have little incentive to challenge a deal that inflates their stock prices, and the same goes for their shareholders. Any such challenge, moreover, would risk upsetting an all-powerful federal government and its, ahem, temperamental president. The same risk applies to federal contractors who might challenge government contracts awarded to state-backed firms on conflict-of-interest grounds.

 

These incentives likely explain why there’s been just one shareholder lawsuit to the equity deals so far. There, plaintiffs have challenged the Intel deal as a breach of its directors’ fiduciary duties (because they gave the government shares in exchange for nothing). Many legal experts think it’ll be a tough case to win, and, even if it is eventually successful, there are dozens of other deals that would also need to be challenged.

 

Finally, Congress could sue the Trump administration, similar to how the House of Representatives challenged—successfully in part, and unsuccessfully in others—President Obama’s implementation of the Affordable Care Act. That case required only a House majority, which Democrats will likely have next year. But here, too, there are major uncertainties surrounding whether Democrats will actually want to trim these new powers and whether a federal court would rule in their favor, given courts’ deference and these laws’ ambiguities.

 

In short, the same government that took these unprecedented equity stakes without clear statutory permission has no clear path for getting out. To restore both free enterprise and the rule of law, however, it’s imperative that we chart one.

The Mob Never Learns

By Justin Dillon & KC Johnson

Wednesday, September 30, 2026

 

The mob has now come for Cornell. And this time, it even has a superhero.

 

Last week, a female Cornell student claiming to have been gang-raped by members of the Chi Phi fraternity almost two years ago sued Cornell, Chi Phi, various Cornell administrators, and — by name — the seven Cornell students who were allegedly involved in the rape. The case quickly went viral, and the reactions have broken down along predictably partisan lines — with everyone from Alexandria Ocasio-Cortez to Hollywood actress Florence Pugh (who plays the Black Widow–esque Yelena Belova in the Marvel Universe) weighing in, and most people immediately assuming guilt.

 

The lawsuit was filed by a plaintiffs’ firm that has previously sued Harvey Weinstein and Sean “Diddy” Combs.  There is much in it that should raise some eyebrows — but not necessarily for the reasons the plaintiff wants.

 

Here’s what we know: In 2024, almost three weeks after the incident, Jane Doe filed a report with the Cornell University police. According to the local district attorney, who would later decline to file charges in the case, what she said then is not what she’s saying now:

 

Jane Doe’s sworn statement in November of 2024 did not allege that she was drugged against her will or gang raped. On the contrary, Jane Doe’s statement described her participation in drug use and sexual conduct as voluntary, conscious, and consensual. My office obviously did not and could not have based our November 2024 decision on the allegations in a civil lawsuit that would not be filed until nearly two years later. Furthermore, I have never been contacted by Jane Doe’s attorneys. Not to inform me the original statement was inaccurate and not to ask me to reconsider our decision. Rather, I reached out to Jane Doe’s attorneys after the lawsuit was filed to understand the discrepancy between the original statement and the lawsuit’s allegations and the proper path forward in light of the lawsuit’s allegations.

 

District attorneys almost never release statements like this — much less include, as he did, a lengthy excerpt from a statement Jane Doe gave his office two years ago.

 

It’s unclear whether Cornell had access to the DA’s legal analysis that the conduct, as alleged, did not constitute sex without consent when the university went forward with its own Title IX investigation. (While a Title IX process uses a lower standard of proof than does a criminal trial, the underlying factual question — did Doe’s allegation, if true, constitute a sexual assault — was the same in both matters.) Subsequent statements from both Doe’s attorney and Cornell indicated that the university’s investigation found all seven of the male students responsible for at least some form of misconduct. Two of them were expelled, and the other five appear to have received suspensions or some other form of punishment.

 

We don’t know why Cornell expelled only two of the students, because no one has (yet) leaked the investigation report in the case. Doe’s lawyers could have included the report as an exhibit to their complaint but chose not to do so. They also failed to mention texts showing that the accuser told one of the young men just two days after the incident that “non(e) of the sexual stuff was illegal.” And we also don’t know if Cornell was aware of those texts, which most reasonable people would consider highly exculpatory.

 

We do know, however, that Cornell is almost the last school in the country that would bend over backwards to help a male respondent beat a Title IX charge: It is in the top five of universities nationwide that have faced lawsuits by male respondents who claim their cases were handled unfairly. There is simply no reason to believe that in a case involving allegations of a gang rape by fraternity members, Cornell suddenly decided to favor respondents.

 

Yet the plaintiff has sued Cornell and the seven accused students, almost two years after the fact. Why the wait? The answer is almost certainly the vulgar screenshotted text that was pasted into the complaint, which the New York Post reported was leaked much later by someone in the group chat. That text doesn’t shed light either way on whether or not the plaintiff consented or whether she was too drunk to consent. But it does indicate — as the DA later noted — that “the behavior of certain Chi Phi fraternity members was without question disgusting and morally reprehensible.” Her skilled attorneys clearly understood its PR value — and they were right.

 

For years, accusers’-rights lawyers have been trying to convince courts to make a positively dystopian legal ruling: that refusing to find a respondent guilty and expel him can — standing alone — violate Title IX. So far, they have failed — in the Sixth Circuit against Michigan State, in a district court decision involving the University of Nebraska that the Eighth Circuit declined to immediately review, and most recently in the Seventh Circuit against the University of Wisconsin.

 

That may be why the plaintiff here filed not in federal court — which has been uniformly hostile to some of the claims she brings here — but in state court. (And oddly, in Manhattan — even though Cornell is located in Ithaca, N.Y., more than 200 miles away.)

 

Other strategic choices she made raise similar questions.

 

For one, the complaint is littered with inflammatory or misleading statements. The plaintiff claims not to know whether the Title IX process against the accused students has been completed — even though, under federal law, Cornell had to tell her that, and one of her lawyers has admitted that the process ended with two expulsions. She insinuates that some of the punished students only had to write a reflection paper, which is almost certainly untrue and likely referred to reflection papers that are submitted as part of a typical sanctioning process. And she took the highly unusual step of identifying the accused students by name, knowing full well that doing so would set a mob upon them.

 

Indeed, the mob responded as expected. The Cornell student newspaper threw any semblance of objectivity to the side and authored a grotesque house editorial that literally began by listing all the male students’ names. The editorial added that “if Cornell follows the law, then we should have access to a public deposition issued from the school.” But the Title IX process doesn’t involve sworn depositions, and in any event federal law requires that campus sexual assault hearings be closed to the public.

 

AOC, meanwhile, traveled to Ithaca to denounce Cornell’s “culture of rape,” shown by an incident in which “seven men drugged and gang-raped a 20-year-old woman.” (The New York City congresswoman did not indicate how she reached this factual conclusion.) She castigated Cornell for only expelling two of the male students, while making “the rest write essays as their form of punishment.” Even Doe’s lawyer hadn’t made such a claim, which Cornell publicly denied. And for good measure, AOC’s rally opened with the student sponsors leading the crowd in a chant for a free “Palestine,” “from the river to the sea.” (Because of course it did.)

 

All of this is happening as Democrats are poised to take over both houses of Congress — and possibly the White House in 2029 — and call for a return to Obama-era Title IX policy, when respondents had few due process rights and bias toward complainants was seen as a feature, not a bug. So voilà, we have an allegation that Cornell somehow swept a gang rape under the rug, even though the facts seem to suggest no such thing.

 

We have seen high-profile college gang-rape allegations before, and we don’t yet know how things will turn out. At one extreme were the Duke lacrosse case from 2006 and the 2014 UVA/Rolling Stone case, both utter hoaxes where no sexual contact of any type occurred. At the other extreme was a 2013 gang rape by several Vanderbilt football players that led to several criminal convictions and the two ringleaders’ receiving long terms in Tennessee prison.

 

At this point, the Cornell incident most resembles an allegation of gang rape against members of the 2016 University of Minnesota team. In that case, the school immediately suspended (and thus publicly identified) ten of the players right before a bowl game. Only later did it become clear that at least some of the players were wrongly accused — even if the general conduct of multiple players having sex with an intoxicated woman in their dorm room was, to borrow from the Cornell DA, “disgusting and morally reprehensible.” The university ultimately paid $500,000 to the female complainant — while arguing that at worst its Title IX policies were biased against all accused students, and not just accused men, to defend a lawsuit filed by the accused football players.

 

The point of due process is to sort the sheep from the goats, so that guilty people can be held responsible and the lives of innocent people will not be ruined. Allegations are not evidence, and mob justice is no more real justice than Florence Pugh is a real superhero.

Climate Law Heats Up

By John R. Puri

Thursday, September 17, 2026

 

When Americans are expected to conform to the law, it’s essential for them to know where different kinds of law reside. Laws governing murder and burglary are left to the states; authority over immigration law rests with the federal government. But where exactly lies climate law, if such a thing even exists?

 

That is the question before the Supreme Court this term in Suncor Energy v. Boulder County. The case began when the Colorado county filed suit in state court against two oil and gas companies, Suncor and ExxonMobil, for financial damages. It alleges that these multinational corporations, by selling and promoting fossil fuels across the country and beyond, knowingly contributed to global climate change. As a result of these actions, Boulder contends, the county faces higher costs from extreme weather.

 

Before a Colorado court considered the suit on its merits, Suncor and Exxon argued that it lacked the authority to do so. Colorado’s highest court disagreed, so the defendants appealed to the U.S. Supreme Court. The justices will hear the case in October and decide on it next year. At stake is nothing less than the nature of federalism.

 

To the energy companies and their allies, Boulder’s lawsuit is an attempted end run around the legislative process. After failing to enact climate legislation in Congress, activists are trying to force their desired policies on the country through the courts. This is not the first time a subnational government has sued over greenhouse gases. In 2011, after several states sued electric utilities in federal court to limit their emissions, the Supreme Court ruled in American Electric Power Co. v. Connecticut that the Clean Air Act displaced any federal common-law claims. Now, the defendants argue, climate activists are evading American Electric Power (AEP) by shifting to state courts. They fear that a win for Boulder would devastate energy production by opening the door to lawsuits in 50 different jurisdictions.

 

Boulder County maintains that it is simply seeking compensation for local damages, not a nationwide injunction on emissions. While most originalists engaged on the issue are with Suncor, conservative law professor Jonathan Adler has taken the other side. He believes the companies are the ones trying to evade the law by asking the Supreme Court to terminate all state litigation before it can be heard. Though he doesn’t endorse Boulder’s injury claims, Adler told me that he thinks the energy sector has resorted to inventing a constitutional principle to stop the suits from going forward.

 

Both parties assert that victory for the other side would imperil self-government. The energy companies’ supporters argue that allowing Boulder’s suit to proceed would allow plaintiffs in one state to regulate conduct in other states. A municipality in Colorado could effectively tax an oil company in Texas without the people of the latter state having any say. Under the Constitution, such interstate regulation is delegated exclusively to the federal government. State governments — including their judiciaries — may govern activity only within their own borders.

 

In an amicus brief for the case, Adler responds that a radical federal preemption of local torts is what would truly erode federalism, and he argues that environmental protection was historically the domain of the states. It remains so today, as nothing in the Constitution or federal law purports to remove this power, even when environmental injuries cross a border. Relief for Suncor would leave battered municipalities “without recourse under any State’s law, while leaving source States free to authorize the conduct that generates the harm — converting a principle of equal sovereignty into a one-way immunity for source States.”

 

Boulder’s argument has a favorable precedent in the 2023 case National Pork Producers Council v. Ross. There, the Supreme Court ruled that the interstate commerce clause did not prohibit California from banning pork imports from suppliers that did not match the state’s strict animal-cruelty standards. Pig farmers in other states predicated their challenge on the dormant commerce clause — an implied prohibition on state laws that excessively burden interstate commerce — of which many originalists are skeptical. They failed to persuade a majority.

 

From that defeat, however, some conservatives see opportunity in Suncor. In their eyes, the Court in Pork Producers invited petitioners to present deeper arguments against extraterritorial regulation, rooted in the Constitution’s very structure of state sovereignty. The justices may finally endorse jurist Michael McConnell’s old amicus brief against California’s law, breaking ground on a new legal arena: “States generally may not punish people for deeds done in other states,” and no state can “block interstate commerce for the purpose of coercing or influencing the way people behave in other states.”

 

That is the decision the energy companies hope for. Carbon emissions, they attest, are inherently a national issue — international, actually — subject solely to federal law. Colorado can no more govern emissions from another state than it can regulate those from another country.

 

On Suncor’s side is a pair of rulings that share a name, Milwaukee v. Illinois. If carbon emissions are comparable to pollution in their harms, as Boulder County claims, these precedents should apply. In 1972, the Supreme Court ruled that interstate water pollution fell under federal common law and that relevant suits should therefore be filed in federal court. Nine years later, adjudicating the same controversy, the justices found that the Clean Water Act’s regulatory scheme had since displaced common-law nuisance claims.

 

Likewise, the energy companies argue that the Clean Air Act further preempts any climate torts, mirroring what the Court found in AEP. But therein lies an unsettling wrinkle: What if federal law does not regulate carbon emissions after all?

 

AEP turned on a 2007 precedent infamous among conservatives: Massachusetts v. EPA. There, in a 5–4 decision, the Court ruled that the Clean Air Act authorized the Environmental Protection Agency to regulate carbon emissions only because they qualified as “air pollutants” under the statute. Therefore, states could sue the EPA if it failed to properly regulate carbon emissions. Echoing their previous dissent, Justices Samuel Alito and Clarence Thomas concurred pointedly in AEP, “for the sake of argument because no party contends otherwise,” that Massachusetts was decided correctly.

 

Legal analyst Steve Milloy has noticed that, while the Trump administration claims in an amicus brief that the Clean Air Act grants the EPA exclusive authority to regulate carbon emissions, the administration explicitly rejects that position by rescinding the agency’s so-called endangerment finding. This 2009 determination provided the legal basis for the EPA to regulate emissions as a harmful pollutant. In rescinding it, Trump’s EPA concluded that the Clean Air Act “does not authorize the Agency to prescribe emission standards in response to global climate change concerns.”

 

Democratic states have already sued to reinstitute the endangerment finding under the Massachusetts precedent, and their case will probably reach the Supreme Court. Many conservatives are excited at this prospect, believing that the current Court would overturn Massachusetts if given the chance. None of the Court’s majority from 2007 remains, whereas three of the four dissenters are still on the bench.

 

But consider what happens if this foundational precedent falls away. If the EPA may not regulate carbon emissions, then federal statute does not preempt state-level climate suits, as the energy companies in Suncor argue. And if the Clean Air Act does not displace federal common law over carbon emissions, as AEP held, then federal nuisance torts are presumably reopened for business. Boulder County could refile its claim in federal court and even seek an injunction against energy producers rather than mere damages. Technically, conservatives would have gotten what they had wished for.

 

Even the best scientific models can’t perfectly predict the weather, but we can forecast with certainty that there are more storms ahead for climate law.

Trump Loses Selzer Case, Wins in His Heart

By Jeffrey Blehar

Friday, September 25, 2026

 

A small footnote on a case I’ve written about several times in the past: In Iowa in 2024, esteemed pollster Ann Selzer — she of the “Iowa Poll,” the famously laser-accurate polling apparatus affiliated with the Des Moines Register, which had seemingly mastered this crucial, yet famously difficult-to-poll swing state — belly flopped in her final act: In her last poll before the election,, she showed Kamala Harris surprisingly leading 47–44 in the state (she would lose 56–43).

 

Embarrassing, and even perhaps motivated in its credulity — all good pollsters should report their outlier numbers, yet Selzer’s skepticism about Trump surely added to her enthusiasm in receiving such counterintuitive results — but perfectly understandable, as well as professionally par for the course. Except to Trump, that is, who (newly reelected, and flexing his litigious muscles) decided to sue both Selzer and the Des Moines Register under ridiculous grounds for “fraud.”

 

The claim was barely articulated (or articulable) in Trump’s legal filing; the point was transparently to attack them for injuring his majesty, with a conspiratorial through line underlying his entire case that Selzer was trying to “tilt the scales” against Trump at the last minute. (This alone betrays how cynically Trump understands the polling industry: as a media signaling exercise rather than an attempt to measure the situation on the ground.)

 

This is of course absurd, and even were it true, it would still not be legally actionable. Thankfully I no longer have to argue with idiots about this, as Judge Scott Beattie, of the Iowa District Court of Polk County, has dismissed Trump’s lawsuit with prejudice, as well as brutal specificity:

 

The only question before the Court is whether the Petition states a claim the law recognizes. At its core, the Plaintiffs’ Petition seeks to stretch both Iowa statutory and common law beyond their current bounds, turning speech that enjoys the highest category of First Amendment protection into a liability. After considering the parties’ arguments, the Court must conclude that the protection is too great and the reach is too far. The case must therefore be dismissed.

 

The complete holding can be read here. It is definitive — its legal logic was self-evident to all except spoiled children and simpletons — and will survive any appeal. And Trump may well yet appeal.

 

Because let us not lose sight of what really matters for Donald Trump: As far as he’s concerned, this loss is a win. If Trump knows anything, it’s what he learned from his mentor Roy Cohn about how to weaponize the courts against your enemies: The process is the punishment. With unlimited money — and now with the powers of the Justice Department in his hands as well — Trump finds himself living out his wildest private dream: of being able not just to disagree with or publicly battle his detractors but to smite them (and anyone else who inconveniently stumbles into the frame) as well.

 

It remains a supreme irony that the president most pursued by his enemies via “lawfare” after his first term (Bill Clinton? Forget Clinton, kid — I lived through that as one of the enthusiastic persecutors) has become historically infamous as its most enthusiastic practitioner during his second term: a man who has explicitly weaponized his Justice Department to pursue his enemies and extract financial concessions from all who might wish to be his friends. Ironic, but not unpredictable.

The Energy Sector Is Threatened by a Climate Litigation Free-for-All

By Donald J. Kochan

Sunday, September 20, 2026

 

Climate litigation gets an oral argument at the Supreme Court on October 5. Several fundamental questions loom: What is the proper reach of state law? May one state impose obligations that apply to activities in other states or other nations? And may one state do so in ways that interfere with the prerogatives of the federal government?

 

The case, Suncor Energy (U.S.A.) Inc., et al., Petitioners v. County Commissioners of Boulder County, et al., is one of dozens across the United States in which local governments are seeking to hold energy companies liable through state tort law for alleged climate-change effects. In these cases, neither the activities nor the effects alleged as wrongs are contained within the borders of the states where the cases are filed. Consequently, any remedy or liability would leak beyond their borders. Any court action other than dismissal, therefore, would necessarily and inevitably entail one state’s exerting extraterritorial jurisdiction. The U.S. Constitution does not allow this.

 

While states have a significant degree of autonomy to regulate intrastate activity free of intervention from the federal government, they do not have the authority to set national policy for transboundary or national matters. They also do not have the authority to regulate activities occurring in and within the authority of other states. This is the distinction between a coordinated union in a federal system versus a system of all against all.

 

Indeed, as the U.S. Supreme Court majority wrote in its Michelin Tire Corp. v. Wages (1976 ) opinion, a major defect “of the Articles of Confederation, and a compelling reason for the calling of the Constitutional Convention of 1787, was the fact that the Articles essentially left the individual States free to burden commerce both among themselves and with foreign countries very much as they pleased.” The U.S. Constitution replaced the articles in an attempt to restrain that power. Alexander Hamilton expressed in Federalist No. 11 that the new U.S. Constitution carved out some things that were of national concern and with which states could not interfere, explaining that “there are rights of great moment to the trade of America, which are rights of the Union.” Hamilton also stressed that the Constitution was adopted to create “an unrestrained intercourse between the states,” lest interstate and foreign trade be “fettered, interrupted and narrowed by a multiplicity of causes.”

 

Recently, however, certain ambitious states (or their subunits) — with their own policy agendas and particular approaches to social problems — have, either through their legislators or through their courts, seen fit to try to expand their power in ways that would necessarily have extraterritorial effects. Climate-change tort lawsuits and their legislative cousins, climate Superfund statutes, are perfect examples of this growing tendency.

 

As Saikrishna B. Prakash of the University of Virginia Law School writes in his amicus brief filed in Suncor, Boulder’s theory of liability would eradicate the territorial limits of a state’s legislative authority — “plunging the Nation into the interstate and international discord the Framers sought to avoid.” Prakash further explains that “Boulder’s attempt to deploy state tort law to regulate the entire United States and the world would have left the Founders thunderstruck.” Indeed, “With the Constitution’s creation of the Union, any power to regulate across state lines rests with Congress.”

 

Federal law has always governed interstate and international greenhouse gas emissions, in no small part because of the need for a uniform set of federal rules. Carefully balancing the costs and benefits of regulation for producers and consumers — including environmental protection, energy reliability, energy security, economic stability, and geopolitical stability — Congress exercised its constitutional authority and built a comprehensive regulatory scheme in the Clean Air Act. And the U.S. Supreme Court has already made clear, in American Electric Power Co. v. Connecticut (2011), that the Clean Air Act displaces common-law efforts to regulate greenhouse gas emissions. In our system of federalism, states do not have a role in this matter.

 

These are the principles that the U.S. Supreme Court will guard if it reverses the Colorado Supreme Court’s decision in Suncor, which has allowed state tort suits with extraterritorial reach. If the Court does not do so, it will endorse a tort system in which every domestic and foreign company can be sued in or by every state as well as every one of the thousands of subunits within states, like the County of Boulder. Such a multiplicity of lawsuits would cripple commerce, paralyzing energy producers by subjecting them to dozens of conflicting, jury-driven liability standards for the same global conduct. That would not only be grossly unfair and lead to inconsistent and arbitrary judgments. Such a litigation free-for-all would harm energy consumers, too.

El-Sayed and the Anti-Anti-Discrimination Democrats

By Seth Mandel

Friday, September 04, 2026

 

JNS reports on a forthcoming Cardozo Law Review paper on the developing “anti-Zionist” exception to civil-rights law. The attempts to extend civil-rights protections to Jews on campus have been undercut by a loophole: Some courts have decided that if you just say “Zionist” instead of “Jew”—or even in addition to it—you can discriminate against Jews by claiming you are merely against Jews’ “political” opinions.

 

Jon Michaels of UCLA and Matthew Segal of Tufts will be publishing the paper next year. Their case study is Torres v. Carlson, in which Columbia University employees sued after having been taken hostage in a university building by pro-Hamas activists. The activists allegedly called Torres and Wilson “Jew-lover,” “Jew-worker” and “Zionists.”

 

A federal judge dismissed the suit, JNS notes, “reasoning in part that anti-Zionism could not establish anti-Jewish discrimination, because Jews disagree about Zionism and because anti-Zionist rhetoric constitutes political speech.”

 

The case highlights just how absurd the legal movement to withhold rights from Jews has become: Call someone a “Jew-worker,” and successfully claim you were just being “anti-Zionist.”

 

Even without the “Jew-worker” taunts, this legal blind spot was always silly. It’s usually used to keep Israelis out of various campus clubs and classes. But “Israeli” is a national origin, and civil-rights law prohibits discrimination by “national origin.” Excluding Israelis because you want their country to cease to exist is a clear violation of the statute. You don’t have to convince anyone that the bigot is an anti-Semite because they are already admitting discrimination according to national origin. And if national origin discrimination can be protected by claiming it is political, then that part of the law is a dead letter.

 

Some libertarians might oppose antidiscrimination law on principle, but the campus activists aren’t among them. These bigots want civil-rights law to remain airtight except for Jews. They believe the protections should still apply to all non-Jews.

 

That is where Abdul El-Sayed falls as well on this issue. This week, the House passed a bill, written by Democratic Rep. Josh Gottheimer and Republican Rep. Virginia Foxx, that builds on existing U.S. antidiscrimination law. This bill prohibits federal funding of colleges that discriminate against academic partnerships with Israeli institutions, though it does not penalize speech or expression. It is similar to previous legislation that enforces federal antidiscrimination law among federal contractors.

 

Most Democrats voted against it anyway. El-Sayed (who is running for the Senate, not House) commented on the bill with the following incoherent assembly of words:

 

“Today, rather than focus on the price of gas, the price of groceries, ending the war, or stopping the trade war, Congress spent its time declaring this. ‘Dear colleges that receive American taxpayer money: We will take away that American taxpayer money if you decide to keep it from going to Israel.’ Aside from being blatantly unconstitutional, it’s wild. Why is it wrong to want our taxpayer money spent here to provide for schools here instead of being sent somewhere else?”

 

Because there is no bill in existence that matches El-Sayed’s description, one can safely assume he is not a principled libertarian opponent of antidiscrimination law. He is an opponent of saying things that are true.

 

Of course this bill doesn’t force anyone to send taxpayer money to Israel, as El-Sayed alleges. But it does prohibit the use of federal dollars to discriminate against Jews as part of an anti-Semitic campaign orchestrated by foreign Arab governments. Specifically, much of this precedent is built on decades-old prohibitions against forcing American companies to abide by an Arab League boycott.

 

U.S. laws have been countering this violation of American sovereignty for half a century. One would think El-Sayed and his fellow America Firsters on either side of the aisle would support U.S. companies under attack from authoritarian states. One would be wrong. Because just as with the “anti-Zionism” exception, these politicians and activists believe they have a right to violate the rights of other Americans.