January 15, 2021 5:15PM

Taking Stock of America’s Public Schooling Battles

Battle Map 2021

It is probably fair to say that Americans are highly polarized right now. Public schooling is likely a reflection of, and contributor to, that division. A reflection, because political control of schools is likely to replicate the divisions and animosities of the electorate. A cause, because public schooling requires people with diverse views and backgrounds to engage in political combat to determine whose values, views on history, and more, will be taught.

Cato’s Public Schooling Battle Map catalogues values and identity‐​based conflicts – highly personal battlegrounds versus, say, fights over school budgets – in public schools. We started documenting such conflicts in the 2005-06 school year, but it was a few years later that we started regular, consistent collection and launched the Map. What follows is a basic summary of what the Map contains.

Note that the Map almost certainly under counts conflicts, perhaps significantly. Entries are only obtained from searches of media reports. That means the Map does not include (1) any battles that generate media reports we do not see, (2) battles that occur but receive no media coverage, and (3) people who feel aggrieved by school policies or curricula but do not challenge them in open forums. Also, the years reflect when a conflict began. Years before 2006 with very few battles contain only conflicts we discovered in later years but that originated in those years.

Battle Types

Battles are divided into nine types, with all involving sides that have reasonable, yet opposed, concerns. Note that many battles could fit under several categories – we choose the one that seems most central. For instance, a battle over a valedictorian mentioning God in a graduation speech could fall under “freedom of expression” or “religion,” but would typically be classified under “religion” because it is the religious nature of the expression that is at the heart of the conflict.

  1. Freedom of expression: Conflicts typically pitting the speech rights of students against schools’ need to maintain order and create coherent cultures
  2. Religion: Conflicts that pit explicitly religious values or expressions against school policies that are often aimed at remaining religiously neutral
  3. Curriculum: Conflicts over what is taught based on disagreements about propriety or accuracy. These can include conflicts over morally controversial topics such as sex education if the objections are not explicitly religious or moral, such as age inappropriateness
  4. Reading Material: Conflicts over books that are present in school libraries, on reading lists, or assigned for classes
  5. Race/​Ethnicity: Conflicts over the ability of people of different races or ethnicities to control their own schools or obtain instruction or treatment tailored to their group. Does not include accusations of racism or unequal treatment unless schools maintain that they have the disputed policies for arguably laudable reasons, such as remaining colorblind
  6. Moral Values: Conflicts over what is “right” and “wrong” without an explicit religious connection, such as over corporal punishment or condom distribution
  7. Gender Equity: Conflicts over the treatment of students by gender, including debates about proper attire for girls, and bathroom access policies for transgender students
  8. Sexuality: Conflicts specifically about sexual behavior or orientation
  9. Human Origins: Conflicts over the teaching of how life originated, and how it reached its current form. Typically involve evolution and creationism or intelligent design theory

Total Battles

2,406

By Type

Public schooling battles by type

By Year

Public schooling battles by year

By State

Public schooling battles by state

Total Districts with Battles

1,205

State‐​level Battles

375

Summary

Whether values and identity‐​based conflict in public schooling has been increasing or decreasing is unclear. Many factors play into what the Map contains, including COVID-19 dominating education policy debates in 2020, and changing collection intensity after the Map’s early years. But one thing is clear: public schooling does not simply bring diverse people together and make them a harmonious whole. It is the arena – and quite possibly the cause – of much social conflict.

January 15, 2021 1:56PM

Online Extremism to Dominate Section 230 and Encryption Debates

Storming of the Capitol

Last week’s attack on the Capitol removed any doubts that the regulation of social media will continue to be a Congressional priority after the Trump administration ends. The president and his allies have argued for legislative changes to address alleged anti‐​conservative bias within the most popular social media companies. These complaints have often overshadowed concerns from Democratic lawmakers, who have expressed unease for years about the proliferation of extremist content online. Many of these lawmakers no doubt view last week’s tragedy as a vindication of their concerns, and they will act. We should expect renewed policy debates on Section 230 and encryption to center around political extremism.

Sadly, last week’s attack on the Capitol was not the first time Americans have witnessed domestic violence from those who become expressed extremist views online. In October 2018 a shooter murdered eleven congregants in the Tree of Life Synagogue in Pittsburgh. Shortly after, Sen. Mark Warner (D-VA) said, “I have serious concerns that the proliferation of extremist content — which has radicalized violent extremists ranging from Islamists to neo‐​Nazis — occurs in no small part because the largest social media platforms enjoy complete immunity for the content that their sites feature and that their algorithms promote.” The Pittsburgh shooter had been an active poster on Gab, a social media site popular with white nationalists and conspiracy theorists. He allegedly posted, “HIAS [Hebrew Immigrant Aid Society] likes to bring invaders in that kill our people. I can’t sit by and watch my people get slaughtered. Screw your optics, I’m going in.“

Sen. Warner’s mention of “complete immunity” is a reference to Section 230 of the Communications Decency Act. The law states that interactive computer services, such as Facebook and Twitter, are not considered the publishers of the vast majority of content posted by users. Warner is incorrect when he describes Section 230 as providing “complete immunity.” The law does include exceptions for (among others things) content related to sex trafficking and content that violates copyright. Nonetheless, Warner is correct to note that online content can radicalize social media users.

A few months after the shooting in Pittsburgh, a white supremacist murdered dozens of Muslims during a shooting at two mosques in Christchurch, New Zealand—and live‐​streamed the shooting on Facebook. He had visited sites such as 4chan’s /​pol board, well‐​known as a home for alt‐​right content. His descent into xenophobic ideology did not occur solely on the Internet. He went on a pilgrimage to Europe, visiting sites of Islamic terrorist attacks and meeting with identitarian leaders. After the shooting, Sen. Richard Blumenthal (D-CT) accused Facebook, YouTube, and Twitter of turning a “blind eye to hate & racism on their platforms.”

While the shootings in Pittsburgh and Christchurch prompted discussions about online extremist speech, it is safe to assume that the recent storming of the Capitol will lead to a much larger backlash against online extremist speech.

One of the most popular recent venues for extremist political speech and conspiracy theories was Parler. A social media network that portrayed itself as an online free speech zone, Parler became a popular venue for Trump supporters amid allegations of Silicon Valley anti‐​conservative bias. Parler users were among the rioters at the Capitol last week. Perhaps in anticipation of political backlash, Apple and Google removed Parler from their app stores. Amazon joined them in taking action by suspending Parler from Amazon Web Services (AWS) hosting, taking the site offline entirely. Parler is suing AWS, alleging that Amazon breached its contract. Since the AWS news, Parler has registered its domain with Epik, a domain registrar of last resort for the far‐​right.

Since Google, Apple, and Amazon severed ties with Parler a range of online platforms have seen an increase in users. Tens of millions of people signed up for Signal and Telegram, two encrypted messaging apps. Reporting from The New York Times reveals that at least one militia group is using Signal to organize its activities.

That Parler enjoyed Section 230 protections and political extremists moved to encrypted channels suggest that upcoming debates on online speech and encryption will feature frequent references to extremist content.

Although much of the debate surrounding objectionable online content features Section 230, we should not forget that it is the First Amendment, not Section 230, that protects a private company’s decision to remove content they find objectionable. Section 230 is about liability, not the freedom of association. Nonetheless, Section 230 remains crucial for any institution allowing users to post content on walls, message boards, review pages, etc.

Last year, a bipartisan group of senators proposed the EARN IT Act. The bill, as its name implies, would require companies to “earn” Section 230 protections, making them contingent on services adhering to a set of best practices developed by a commission aimed at tackling child sexual abuse material. Civil libertarians voiced their concerns about the bill, which many consider a threat to encryption. After all, if the commission deemed the creation of a “back door” to encrypted content part of their best practices, interactive computer services would be put in the position of choosing between threatening their users’ security and privacy or facing the potential of crippling lawsuits.

As lawmakers see political extremists flock to end‐​to‐​end encrypted messaging services such as Signal, they may look to proposals such as the EARN IT Act and seek to incentivize services to allow law enforcement to decrypt encrypted content. It is true that criminals use encryption, but so do journalists, whistleblowers, dissidents, members of the military, Capitol Hill staff, and many others. There is no such thing as encryption that only works for the good guys. Weakening encryption may help law enforcement investigate crimes, but it will put the privacy and security of Americans at risk.

Any legislation to address political extremism will quickly run into a stubborn barrier: the First Amendment. Much of the content shared on Parler was vile, but it was not illegal. Under U.S. law, it is not illegal to say that the world would be better if the vice president were killed, or spread conspiracy theories and racist content.

The list of speech not protected by the First Amendment is short, but it does include incitement to “imminent lawless action.” Although many commentators have described the rhetoric of President Trump’s Jan. 6th comments as “inciting” the mob to attack the Capitol, it is not obvious that his comments clear the Supreme Court’s incitement test set out in Brandenburg v. Ohio (1969). Under Brandenburg, speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” is not protected by the First Amendment. Legal scholars and commentators have come to different conclusions about whether Trump’s comments meet that standard.

Whether Trump’s comments are illegal could have a significant impact on online speech if Section 230 is amended. Boston University Law School’s Danielle Citron and the Brookings Institution’s Ben Wittes have proposed changing Section 230 so that it applies only to interactive computer services that take “reasonable steps to prevent or address unlawful uses of its services.”

If such an amendment were enacted, interactive computer services would have an incentive to embrace false positives in order to ensure that they don’t run afoul of Section 230. Awful but lawful speech could be stifled because sites hosting third‐​party content would seek to avoid bankruptcy via a tsunami of lawsuits.

Some might ask, “What’s wrong with services having an incentive to err on the side of caution when it comes to borderline illegal speech?” The answer is that such an environment is likely to be anti‐​competitive, with powerful market incumbents best positioned to adapt to how courts and lawmakers interpret “reasonable steps.” While concerns about online political extremism are likely to prompt lawmakers to seek carrots and sticks for social media companies, we should keep in mind that Section 230 amendments could ultimately entrench the companies so many are criticizing.

The attack on the Capitol last week will bring online political extremism to the center of debates about encryption and Section 230. Amid such debates, we should be wary of the unintended consequences of weakening encryption and amending Section 230.

January 15, 2021 12:19PM

Transit Unions to DHS: Give America A “No Ride” List

We’re just 15 days into 2021, and the number of really bad, anti‐​liberty policy and legislative proposals are multiplying like mold spores.

To that end, I would direct you to the request by the International Association of Sheet Metal, Air, Rail and Transportation Workers that the Transportation Security Administration (TSA) create a “No Ride” list for passenger rail akin to TSA’s infamous “No Fly” list for the airline industry. From the unions’ press release:

Suspected insurrectionists continue to threaten further violence as the transition to President‐​elect Joe Biden’s administration approaches next week. Some of these have been relegated to the No Fly List overseen by FAA, preventing them from traveling by air, but no such restriction exists for the national passenger rail network. SMART-TD and BLET urge that a “no‐​ride” list that mirrors FAA’s list be enacted immediately.

By all means, lets make passenger rail travel just as hell‐​like as airline travel: insane requirements for removing shoes, non‐​science based limits on liquid carry‐​on items, more expensive, ineffectual screening technology, and of course, even longer delays in being able to board your train and get to your destination. Apparently, union reps have forgotten just how ineffectual and liberty‐​damaging TSA’s VIPR teams were before Trump—in one of his few useful acts as President—tried to kill the VIPR program.

This union proposal naturally begs additional questions: where will it end? Will the union representing Washington Metropolitan Transportation Authority (WMATA) ask for a “No Ride” list for DC’s Metrorail and Metrobus services? After all, since you don’t know who might morph from a protestor to an insurrectionists, better to to simply take any names of the January 6, 2021 insurrectionists (alleged or actual) on the TSA “No Fly” list and get them banned from riding Amtrak, DC Metro, or any other transit system, right?

That our nation’s Capitol building was overrun by at least hundreds seeking to overturn a fair, free, and valid election is clear. The Department of Justice has already created a running, online list of those thus far charged with federal crimes in connection with the insurrectionist event. What we don’t need is yet another due process‐​free, innuendo driven, government run transportation security “list” that gives us another debacle like TSA’s Quiet Skies program, and that further undermines the ability of citizens not wanted for a crime to go about their travel unmolested.

January 15, 2021 8:30AM

Happy 20th Anniversary, Wikipedia!

Today marks the 20th anniversary of Wikipedia’s website going live. The online, collaboratively sourced encyclopedia is one of the internet’s biggest success stories, but one that, on the face of it, conventional economic analysis would suggest was the least plausible.

The free, volunteer‐​edited site today hosts 55 million articles in 300 languages, including 6.2 million individual content pages in English that have been subject to almost 100 million edits. The Wikipedia page about Wikipedia itself cites articles claiming it is the 13th most popular site on the internet, with 1.7 billion unique visitors and 20 billion page views per month.

Some academics remain snooty about an encyclopedia that can be “edited by anyone,” but Wikipedia is often a go‐​to website for even established researchers looking for a quick overview of conventional wisdom or to double‐​check a fact cited elsewhere. The site has been adopted by companies such as Amazon and Apple to answer factual questions in voice assistants and smart speakers, and by social media companies such as Facebook to provide information links on posts.

There is good reason for this. A 2005 Nature study found that Wikipedia had decent accuracy compared to the expert‐​written Encyclopedia Britannica. Why? Aggregating information from a wide and diverse editor and reader base helps quickly correct obvious errors, especially on contentious and highly read topics. The articles that are most read then, over time, tend to be more accurate. Embedded within Wikipedia’s model is a market‐​style feedback mechanism that ensures resources head to improve product quality where demand is highest. And, of course, because it utilizes new, rapid internet technologies, this collaboratively sourced website can update much more quickly than the book‐​bound encyclopedias of yesteryear.

In a world of filter bubbles and media segregation, Wikipedia has also proven somewhat of a mediating resource. Analysis has found that a weak version of Linus’ Law holds for Wikipedia—that “Given enough eyeballs, all bugs are shallow.” On articles with plentiful contributors, such as political pages, the large number of editors combined with Wikipedia’s own evolving protocols helps achieve a high degree of neutrality.

This is an underappreciated success. Public debate focuses on the idea of internet gatekeepers “censoring” free speech. Wikipedia has largely avoided that accusation to date, despite being a highly read source with explicit safeguards to try to eliminate fake news and ill‐​sourced opinion. True, errors or slant are harder to police on less well‐​read pages. Wikipedia’s founder Jimmy Wales acknowledges that on certain niche topics, only those are who strong fans of the subject will tend to contribute, meaning the sentiment of articles will be biased. But in all Wikipedia is well‐​trusted and widely believed to be doing a reasonably decent job, especially compared to the media. Some research even posits that engaging in Wikipedia edits causes contributors on political topics to become less slanted over time. Imagine!

Of course, such an open model is made possible by Section 230’s intermediary liability protections. As a nonprofit enterprise, the Wikimedia Foundation cannot afford to litigate the decisions of its volunteer editors. Section 230 allows it to both avoid liability for user errors and rectify errors without provoking litigation from those unhappy with the changes. While discussions of the law often focus on the judgments of ‘Big Tech’ moderators, it’s important to remember it safeguards the ongoing editorial judgment of Wikipedia’s hivemind.

As a non‐​profit, Wikipedia is part of the rich tapestry of organizations that arise in a free economy. Often public debate overly focuses on “the market” versus “the government.” Wikipedia’s success as a free content, non‐​profit institution highlights how within free economic systems intermediate organizations arise that can develop safeguards and standards that achieve the desired ends willed on by people calling for heavy‐​handed government regulation, while obviating the need for that path which crushes new innovation.

Indeed, the site should be of particular interest to libertarians. Jimmy Wales is on record at Cato as highlighting that the inspiration behind it lay with his reading of Friedrich Hayek’s “The Use of Knowledge In Society.” That famous essay explained a key reason why central planning couldn’t match the efficiency of an open market. The market order is dictated by prices, which themselves reflect a host of locally embedded information that no single planner could ever comprehend or collect. Wales took the message to heart in regards to knowledge, thinking he could build something that could harness that localized, dispersed, and niche knowledge among individuals to produce a resource as globally comprehensive as possible.

Wikipedia is a useful case‐​study for economists on certain other policy issues.

First, its existence shows how services with public good‐​like characteristics can be provided in a free economy. Knowledge is something that is non‐​rivalrous (me knowing something doesn’t “use it up” and so prevent you from knowing it) and non‐​excludable (you can try to raise barriers to its acquisition but it can still spread relatively freely). Introductory economics textbooks would say these characteristics mean such a good or service would be underprovided in a free economy, requiring some state subsidies or provision. Indeed, some Wikipedia employees have been known to joke “Thank God our little enterprise works in practice, because it could never work in theory”.

Yet it turns out donors worldwide are willing to fund the knowledge venture because they find it useful or buy into the vision, while enough editors volunteer to participate because they find satisfaction and usefulness themselves from the pastime. Mastering Wikipedia’s rules and guidelines make this a bit like Terence Kealey’s “contribution good” idea.

Second, the website reminds us that network effects, other things given, enhance consumer welfare, rather than diminish it. In the Big Tech antitrust debates it’s common to read that competition is inherently stifled in social media or the search engine sectors because users find services more useful when large numbers of other people are using them. This is said to constitute a major “barrier to entry” for competitors. But from the consumers’ perspective, it’s good that certain companies have high usership rates, as this improves the quality of the product.

In the case of Wikipedia, it should be obvious that the readers benefit from large numbers identifying errors and removing biases. Yet nobody says “Wikipedia is unfairly monopolizing the online encyclopedia market,” because we recognize those benefits arise from an open, competitive process. So while there might be other anti‐​competitive conduct charges against Big Tech companies, the existence of “network effects” should be separated out from other issues and not talked about as if they are a “bad.”

Finally, Wikipedia is a great example of how internet‐​based products have enhanced human welfare in ways not picked up in conventional GDP statistics. The decline in the purchase of physical encyclopedias would show up as a decline in measured market activity. But because of innovations such as Wikipedia, we now have access to more information than they provided at a zero out‐​of‐​pocket cost. Research from two years ago estimated U.S. consumers valued Wikipedia then at $150 per year. That’s some consumer surplus. For context, the cost of Encyclopedia Britannica’s 32‐​volume, five‐​yard‐​long set in 2012 was $1,400.

Sure, one can quibble that the way Wikipedia operates entrenches consensus positions and treats certain controversial ideas harshly. One can find examples of mistakes on the site, or bias or slant. But the counterfactual is the imperfect world we live in, just without Wikipedia. Human beings themselves exhibit biases every day. At least in‐​built into the editorial process is a means of correction. Even the Wikipedia page about Wikipedia is pretty critical!

Wikipedia itself will have to evolve as more internet‐​activity moves away from the desktop or laptop onto smart technologies. But for now, we should see sites such as Wikipedia as a testament to the open, collaborative opportunities a free economy allows.

January 14, 2021 9:54AM

Arizona, First in Occupational Licensing Reform, Now Poised to Become First in Telehealth Reform

Absorbing lessons learned from the COVID-19 pandemic, Arizona Governor Doug Ducey plans for Arizona to once again lead the way in health care reform, this time by seeking legislation to make permanent his emergency executive order that allows Arizona residents to obtain telehealth services from practitioners licensed in any of the 50 states and the District of Columbia. While many states have taken similar emergency steps to improve access to health care during this public health crisis, unless their legislatures act, the emergency orders will expire when the crisis is over. If Governor Ducey convinces Arizona legislators, Arizona will become the first state in the union to permanently allow out‐​of‐​state licensed health care practitioners to render telehealth services to its residents.

The Governor’s 2021 Policy Priorities reported that many Arizonans—particularly those in rural areas—benefited greatly from the emergency telehealth action, with behavioral health services among those most utilizing the remote technology.

Under current law, Arizona—like every other state—allows patients to travel out of state to receive medical treatment and even surgery from a doctor licensed in that state, but those same doctors cannot provide telehealth services to patients in Arizona without an Arizona license. Removing that requirement will give Arizonans access to care from the best health care practitioners in the country.

As the 2021 Policy Priorities states:

A person who is visiting a family here or spends the winter here, should be able to reach their doctor in their home state by telemedicine. A family in Mohave County who utilizes a hospital in Las Vegas, Nevada should be able to get follow up care via telemedicine. Today, someone who has the means to travel to a consultation with a specialist in another state can do so. Specialty doctors should not only be accessible via an expensive flight and hotel stay. If a specialty provider is willing to do a consult via telehealth, Arizona patients should have easy access to those services without unnecessary travel expenses and Arizona is going to lead the way on this. If it’s safe and it works during a pandemic, we should embrace it when we’re not in an emergency as well. (Emphasis added.)

When, in April 2019, Arizona Governor Doug Ducey signed into law HB2569, it made Arizona the first state to recognize all out‐​of‐​state professional and occupational licenses. As a result, any health care practitioner with a license in good standing in any of the other 49 states and the District of Columbia can now establish a practice in Arizona and the relevant state licensing boards will issue them an Arizona license. Unlike a license reciprocity law, which recognizes licenses of out‐​of‐​state license holders hailing from states that recognize Arizona licensees in return, this “universal” licensing law recognizes out‐​of‐​state license holders unilaterally.

In June of 2020 the Arizona‐​based Goldwater Institute reported that, since the law was enacted, “about 1,454 people have applied for an Arizona license under the law. Of those, at least 1,186 have had their licenses approved while only 16 have been rejected.” Among the boards granting the most approvals were those in the fields of behavioral health, social work, medicine, dentistry, occupational therapy, and clinical psychology.

Now Arizona can take the lead in liberating telehealth. Legislators in other states are also contemplating such reform.

This past November I was privileged to testify before a joint committee of the Idaho legislature that is considering telehealth reform. As expected, the committee received pushback from representatives of incumbent licensed health professions. They claimed to be very much in favor of telehealth, and supported state laws requiring insurance payments for telehealth services, but cautioned that it was unsafe to let Idahoans receive care from practitioners licensed in other states, even though every state has essentially identical license requirements and every state—including Idaho— licenses practitioners who received education and training in other states. Arizona legislators should expect similar resistance when they take on the Governor’s proposal. It’s understandable. If reform is enacted, practitioners would have additional competition from out‐​of‐​state.

Following Arizona’s lead, several states, including Pennsylvania, Missouri, Montana, and Utah have since enacted similar universal licensing laws. If Arizona enacts telehealth reform, expect other states to follow suit as well. Some critics claim that too many leaders prefer to carry out great reforms second—not first. That statement doesn’t appear to apply in Arizona.

January 12, 2021 4:04PM

Call for Proposals: Junior Scholars Symposium 2021

The final year of the Trump administration was one of uncertainty and upheaval in U.S. foreign policy and national security. The COVID-19 pandemic disrupted American life and liberty in profound ways, forcing many experts and policymakers to reevaluate national security priorities.

The pandemic also shook the U.S. political system by pushing millions of Americans to vote by mail, which prolonged counting the vote and added fuel to Trump’s false accusations of election fraud. The specter of political violence now hangs over the United States as the Biden administration takes office. In times like this, the knowledge that academics can bring to decision‐​makers via policy‐​relevant research is incredibly important.

In October 2021, the Cato Institute will be hosting our fourth annual Junior Scholars Symposium, a paper workshop for graduate students on topics broadly related to international security and national security policy.

Topics may include but are not limited to U.S. foreign policy, the causes and consequences of conflict, military effectiveness, grand strategy, civil‐​military relations, alliances and security institutions, terrorism, military intervention, diplomatic history, arms control and nuclear proliferation. Papers that link national security to global health, trade, political economy or immigration are also welcome.

Participants will be expected to produce an original paper of journal‐​article length; the workshop will focus on paper presentations, discussion and suggestions for improvement, with the expectation that authors will go on to seek publication in external journals or to build upon this research as they move towards the dissertation phase of their studies.

Participants are particularly expected to highlight the policy relevance of their work. In keeping with the Cato Institute’s commitment to moving U.S. foreign policy towards prudence and restraint, the policy implications of papers should be broadly compatible with a pragmatic realist approach to foreign policy.

Due to the uncertainties around the COVID-19 pandemic, we are planning on holding the workshop virtually. If the pandemic outlook improves significantly there is a potential that the workshop will take place at Cato’s offices in Washington, D.C. We will give participants at least 30 days notice if the format changes to in‐​person instead of virtual. The symposium will take place on October 22nd and 23rd. Participants will receive a stipend of $500, and if events are moved to in‐​person, will have reasonable travel and accommodation costs for the workshop covered.

To apply, submit an abstract of no more than 500 words to juniorscholars@​cato.​org by April 23rd. The abstract should detail your proposed research project, and be accompanied by a CV. Candidates should have a background in political science, history, public policy or a related field, and must have completed at least one year of graduate study in a PhD program by the time of the workshop. All candidates will be notified of the status of their application by May 31st, and draft papers will be due on October 1st.

January 12, 2021 1:36PM

Pelosi’s Bizarre 25th Amendment Gambit

We keep hearing that this is a rushed impeachment, but the House leadership seems to think there’s plenty of time for a frolic and detour before getting to the main event. Before considering an article of impeachment based on President Trump’s January 6 pre‐​riot rally speech, they’re going to vote on a toothless, hortatory resolution urging Vice President Mike Pence to do their jobs for them. Specifically, the resolution calls on Pence and a majority of Trump’s cabinet to trigger Section 4 of the 25th Amendment, making Pence “acting president” for the remainder of Trump’s term.

Please Clap

In her letter announcing the move, Speaker Nancy Pelosi (D-CA) proclaims that “In protecting our Constitution and our Democracy, we will act with urgency, because this President represents an imminent threat to both.” The House plans to vote on that resolution sometime today, probably, “Tuesday evening at the earliest,” anyway—hey: get off our backs, man!

It’s hard to fathom the logic here, either legally or politically. The Constitution gives the House gives the House the “sole Power of Impeachment.” But the 25th Amendment gives it no direct role in the initial decision to remove. Congress comes in after that decision has been made: receiving notice that the VP and a majority of the cabinet have deemed the president “unable to discharge the powers and duties of his office,” and, some three weeks later, deciding, by supermajority vote in both houses, whether that was the right call (in this case, the clock would run out before that vote).

Nor do I see how the resolution is supposed to make the vice president more likely to trigger Section 4. Does the House leadership know something about Mike Pence’s psychological motivations that’s not apparent to the rest of us? Are they engaged in some sort of advanced game theory or extradimensional chess?

From my limited vantage point, Pelosi’s gambit looks like a waste of time or worse. The vice president’s “servant leadership” approach to his office has often bordered on servility. Pence has long been so reluctant to risk Trump’s ire that it was a genuine and welcome surprise when he refused the president’s anti‐​constitutional demand to toss out electoral votes for Joe Biden. Becoming the first vice president in history to trigger Section 4 and defenestrate a president is a much bigger deal. If Trump riling up a lynch mob against him hasn’t motivated Pence to whip the cabinet and make that move, what would? I’m pretty sure of what wouldn’t: an unenforceable “ultimatum” from the House. Whatever inclination Pence had to trigger section 4, he’s less likely to do it if it’s going to look like Nancy Pelosi forced his hand.

This late in the game, removing Trump via a Senate trial is no longer possible. The best argument for impeachment by the House is its constitutional‐​censure function: making him the only president in history to wear “a second Scarlet I.” Only the “25th Amendment Solution” could bring his presidency to an early end. As it happens, the two remedies aren’t mutually exclusive.

If last Wednesday wasn’t “Peak Trump,” and the president is bent on further abuses, perhaps Pence can muster the, er, “extreme courage” it would take to trigger Section 4. Meanwhile, the House should stay in its lane and stick to the job the Constitution assigns it.