High court allows Trump travel ban to take effect

Protesters oppose Trump travel ban. (Getty pix)

The Supreme Court today, the last day of its session, lifted lower courts injunctions against President Trump’s executive order restricting travel from six majority-Muslim nations, though its ruling exempted those with existing ties to the U.S. The court said it would hear arguments in the case when it returns in October, though it may be moot by then, because the 90-day ban will have expired.

The justices basically agreed foreigners do not have constitutional rights to enter the country:

But the injunctions reach much further than that: They also bar enforcement of §2(c) against foreign nationals abroad who have no connection to the United States at all. The equities relied on by the lower courts do not balance the same way in that context. Denying entry to such a foreign national does not burden any American party by reason of that party’s relationship with the foreign national. And the courts below did not conclude that exclusion in such circumstances would impose any legally relevant hardship on the foreign national himself. … (“[A]n unadmitted and nonresident alien … ha[s] no constitutional right of entry to this country”). So whatever burdens may result from enforcement of §2(c) against a foreign national who lacks any connection to this country, they are, at a minimum, a good deal less concrete than the hardships identified by the courts below.

At the same time, the Government’s interest in enforcing §2(c), and the Executive’s authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States. Indeed, EO–2 itself distinguishes between foreign nationals who have some connection to this country, and foreign nationals who do not, by establishing a case-by-case waiver system primarily for the benefit of individuals in the former category. … The interest in preserving national security is “an urgent objective of the highest order.” … To prevent the Government from pursuing that objective by enforcing §2(c) against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else.

We accordingly grant the Government’s stay applications in part and narrow the scope of the injunctions …

Trump released a statement applauding the decision:

Today’s unanimous Supreme Court decision is a clear victory for our national security.  It allows the travel suspension for the six terror-prone countries and the refugee suspension to become largely effective.

As President, I cannot allow people into our country who want to do us harm.  I want people who can love the United States and all of its citizens, and who will be hardworking and productive.

My number one responsibility as Commander in Chief is to keep the American people safe.  Today’s ruling allows me to use an important tool for protecting our Nation’s homeland.  I am also particularly gratified that the Supreme Court’s decision was 9-0.

Actually, Justice Clarence Thomas, joined by Samuel Alito and Neil Gorsuch, wrote a dissent which argued the injunctions should be lifted in their entirety with no exceptions, because:

Moreover, I fear that the Court’s remedy will prove unworkable. Today’s compromise will burden executive officials with the task of deciding — on peril of contempt — whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country. … The compromise also will invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a “bona fide relationship,” who precisely has a “credible claim” to that relationship, and whether the claimed relationship was formed …

The court partially restored the congressionally dictated power of the executive branch to control immigration.

Editorial: Governor right to veto bill mandating more clean energy

In vetoing this past week a bill that would have increased the required percentage of electricity in Nevada coming from renewable sources — such as solar, wind and geothermal — from the current 25 percent by 2025 to 40 percent by 2030, Gov. Brian Sandoval did the right thing but apparently for the wrong reason.

The governor felt obliged in his veto message to pay lip service to the concept of increasing the renewable portfolio standard (RPS), noting the proposal is very popular and has received positive news coverage in print and on television and online social media.

But he said that “although the increase in the RPS proposed at this time in AB206 is one that I would otherwise support, the consequences of approving this bill must be considered through the lens of recent changes to Nevada energy policy and those likely to be adopted in the near future. These changes can only be characterized as massive shifts in energy policy that have already dramatically altered the energy landscape in Nevada. They are occurring in real time, with energy policy evolving in real time.”

Sandoval said the reason he vetoed Assembly Bill 206 was that in 2016 72 percent of Nevada voters approved a change to the state Constitution that would end the electricity near monopoly in which 90 percent of power in the state is sold by one company, NV Energy. If voters again approve the Energy Choice Initiative in 2018, the energy market would be open to competition. That would also impact the other 10 percent.

If the initiative passes, the power companies would have to sell assets and that would result in costs that would have to be borne by the ratepayers, “resulting in higher power bills for most Nevadans,” the governor observed.

Assemblyman Chris Brooks, the Las Vegas Democrat who sponsored AB206 and has worked for years in the solar power business, told the press, “AB206 would have made Nevada not just a national leader, but a world leader, in the next generation of clean and renewable energy sources that would have diversified our economy and created good-paying, high-quality jobs.”

Actually an analysis of the current RPS — 25 percent by 2025 — by the Beacon Hill Institute at Suffolk University a couple of years ago found the costs far outweigh any supposed benefit.

The study estimated that in 2025 the current RPS would lower Nevada employment by anywhere from 600 to 3,000 jobs, reduce disposable income by a range of $72 million and $373 million and increase the average household electricity bill by $70 per year and commercial businesses by an expected $400 per year and industrial businesses by an expected $26,220 per year.

You don’t have to predict. Look no further than neighboring California, which has an RPS of 50 percent by 2030. It already has power bills 50 percent higher than the national average.

And for what? According to a Heritage Foundation report, if the entire industrialized world stopped burning fossil fuels and cut carbon emissions to zero, global warming would be reduced by four-tenths of a degree Celsius by 2100.

So, yes, the Energy Choice Initiative and its potential drastic shake up of the energy market added a degree of risk to ratepayers, but ratepayers already would have been on the hook had AB206 become law, despite what the governor and the mostly Democratic lawmakers who passed the bill claim.

In fact, we call for the 2019 Legislature to repeal the RPS entirely and let electricity consumers purchase power in a competitive marketplace.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Newspaper column: Congress should dump plan to tax advertising

Congress is finally seriously talking about tax reform for the first time since President Reagan signed the Tax Reform Act of 1986, but there is a fly in the anointment.

The current draft being proffered contains a proposal to alter the Internal Revenue Code to tax advertising for the first time since the income tax was created in 1913. Currently businesses are allowed to deduct advertising expenditures just as they do other necessary business expenses, such as wages and rent.

The tax reform draft proposes to allow only 50 percent of advertising expenses to be deducted, while the rest would be amortized over 10 years — a move that would complicate tax compliance rather than simplify it. It is estimated that over a decade this proposal would generate $169 billion in additional federal revenue, money drained needlessly from the economy.

Americans for Tax Reform — who, as the name suggests, are all for tax reform — have come out strongly against this proposition, saying any revenue generated would be dwarfed by its negative effects.

The tax reform group’s president, Grover Norquist, penned a letter to Congress earlier this year saying that not only should ads not be taxed, but that implementation of full business expensing would grow the GDP 5.4 percent and create a million jobs.

“Implementing full business expensing is a vital step toward creating a pro-growth tax code. At the same time, taking the existing treatment of advertising costs in the other direction by forcing it to be depreciated over multiple years makes no economic sense and undermines both the economic gains and the rationale for moving to full business expensing,” Norquist wrote.

He also pointed out, “In total, advertising directly or indirectly supports almost 22 million jobs and $5.8 trillion in total economic output. Every dollar of advertising spending generates $22 of economic activity. Advertising associated with local radio and television is alone projected to contribute more than $1 trillion in economic output and 1.38 million jobs.”

The impact on the print media, which is the prime source of local news coverage, could be devastating as well.

According to the Brookings Institute, the total number of newspapers in this country has already declined from nearly 1,800 per million population in 1945 to about 400 in 2014.

According to Adweek, from 2000 to 2013, annual U.S. newspaper ad revenue dropped from $63.5 billion to $23 billion. Meanwhile, Google’s ad revenue has grown to nearly $50 billion a year.

This past week David Williams, writing ironically enough at the online site Townhall, pointed out, “The decline of national outlets is one thing — in most cases, online news suffices — but the shrinkage of local papers is far more dangerous. Many areas only have one source of local news. When that one small paper goes bankrupt due to a draconian federal ad tax, there won’t be anybody to cover the local council meeting or report on communal crime. The Wall Street Journal or New York Times certainly won’t have the space, desire, or bandwidth to send in journalists for local stories. And so, many residents will be left totally in the dark about what is happening around them.”

Fortunately, some in Congress are paying heed to the warnings being offered by those who represent both the media and the advertisers who would be financially harmed by the advertising tax plan.

In April, 124 members of the House of Representatives signed a letter addressed to House Speaker Paul Ryan and Minority Leader Nancy Pelosi warning of the problems the ad tax would create. Signers include Nevada’s Democratic Reps. Dina Titus and Ruben Kihuen.

“The potential for strengthening our economy through tax reform would be jeopardized by any proposal that imposes an advertising tax on our nation’s manufacturing, retail, and service industries,” the letter states, noting advertising contributes 19 percent of the nation’s GDP.

It goes on to argue, “Advertising has been accorded the same treatment as all other regularly occurring business expenses, such as employee wages, rent, utilities and office supplies, throughout the 114-year life of the tax code. Any measure that would tax advertising — and therefore would make it more expensive — cannot be justified as a matter of tax or economic policy.”

The House letter concludes, “Advertising also is responsible for supporting the high-quality news, information, and entertainment that is a cornerstone of our democracy and upon which our constituents rely.”

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Democrats losing elections and argument against Citizens United

Jon Ossoff loses George House race despite far outspending his Republican opponent. (Getty Images)

Not only are Democrats wrong on principle in their unified effort to legislatively repeal the Supreme Court’s Citizens United v. FEC ruling, they are wrong in their rationale.

The 5-4 Citizens opinion stated it is unconstitutional on First Amendment free speech grounds to limit spending on political speech by corporations and unions.

At one point Sen. Harry Reid, in arguing for a constitutional amendment to overturn Citizens, stated:

But the flood of special interest money into our American democracy is one of the greatest threats our system of government has ever faced. Let’s keep our elections from becoming speculative ventures for the wealthy and put a stop to the hostile takeover of our democratic system by a couple of billionaire oil barons. It is time that we revive our constituents’ faith in the electoral system, and let them know that their voices are being heard.

His heir in the Senate, Catherine Cortez Masto, has taken up the cudgel, saying in a press release in support of another attempt February to amend the constitution:

The U.S. Constitution puts democratic power in the hands of the American people — not corporations or private companies. Since the Citizens United decision, big corporations have gained unprecedented influence over elections and our country’s political process. I am proud to be a cosponsor of this legislation; it’s critical that we end unlimited corporate contributions if we are going to have a democratic process and government that will truly work for all Americans.

The Democrats in the Nevada Legislature waded in with a resolution urging Congress to amend the First Amendment and overturn Citizens. It passed without a single Republican vote.

This week their bleating about elections being bought and paid for by the wealthy was proven dead wrong, again.

Not only was President Trump outspent by loser Hillary Clinton by two-to-one, but now in a race for a Georgia House seat the Democratic candidate outspent his Republican opponent by seven-to-one and still lost.

And talk about special interest money. The Democrat Jon Ossoff, between March 29 and May 31, reported receiving 7,218 donations from California, but only 808 donations from Georgia. Overall, he got $456,296.03 from Californians, compared to $228,474.44 from Georgians.

The Democrats are not only losing elections, but are losing the argument about the effectiveness of the influence of outside money. Being able to spend your own money on political speech is tantamount to free speech, but not to convincing speech.

In Citizens, the late Justice Antonin Scalia wrote:

The (First) Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals — and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is “speech” covered by the First Amendment. No one says otherwise.

 

Rosen said to be planning to run against Heller

Jacky Rosen (AP pix via Politico)

Half the search engine alerts about Nevada this morning seemed to contain a link to some story about first-term Democratic Congresswoman Jacky Rosen of Las Vegas, who has a year and a half to go in her first term, planning to soon announce a bid to unseat Republican Sen. Dean Heller.

Politico first broke the news at 7:44 p.m. Monday, followed a couple of hours later by The Nevada Independent and a half dozen others, except the Las Vegas newspaper. Most cited unnamed sources, though a couple led with the National Republican Congressional Committee reacting to the news.

Politico reported that a poll released Monday showed Heller getting just 39 percent of the vote while a generic Democrat polled 46 percent among Nevada voters.

“Heller is widely considered the most vulnerable Republican up for re-election in 2018 and is the only GOP senator this cycle who represents a state won by Hillary Clinton in 2016,” Politico reported.

NVIndy reported:

The first-term congresswoman has spoken with former Democratic Sen. Harry Reid and his successor, Sen. Catherine Cortez Masto, about getting into the race and is the Democratic Senatorial Campaign Committee’s top choice to run against the senior senator, the source said. Heller is considered the most vulnerable Republican up for reelection in 2018 and is the Democrats’ best pickup opportunity in the midterm.

The website also said she has the backing of the Culinary union, which has a strong voter turnout organization. In the 2016 presidential election Hillary Clinton outpolled Donald Trump by 2 points, largely due to the unions getting members to the polls.

CNN quoted an NRSC spokesman as saying, “With today’s news, Jacky Rosen confirmed to Nevadans the only reason she’s in elected office is to serve her own ambitions. Rosen’s radical liberal stances might please her puppet-master Harry Reid, but they will leave Nevadans worse off.”

Election season is never ending.

In trademark case Supreme Court upholds principle that government may not limit free speech

The Slants

The Supreme Court has struck a blow for free speech in a case that might on its face seem rather petty, but maintains the principle that government must butt out of judging what is a permissible level of offensiveness.

The case involved the Patent and Trademark Office refusing to grant a trademark to an Asian-American rock band that wanted to call themselves “The Slants.” The agency cited a section of the law that denies trademarks for names that are “immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute …”

According to the opinion by Justice Samuel Alito, the band wanted to use the ethnic slur as its name to “reclaim” the term and drain it of its denigrating force.

But the government argued that issuing a trademark was tantamount to the government engaging in disparaging speech, citing a previous case in which the court held that the state of Texas was not required to issue car license plates commemorating Confederate Veterans.

Alito held that license plates are government speech but a trademark is not. He wrote that the federal law did not create trademarks but merely was instituted to protect trademarks from being usurped:

The Patent and Trademark Office (PTO) denied the application based on a provision of federal law prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” … We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.

“The principle underlying trademark protection is that distinctive marks — words, names, symbols, and the like — can help distinguish a particular artisan’s goods from those of others.” … A trademark “designate[s] the goods as the product of a particular trader” and “protect[s] his good will against the sale of another’s product as his.” … It helps consumers identify goods and services that they wish to purchase, as well as those they want to avoid.

“[F]ederal law does not create trademarks.” … Trademarks and their precursors have ancient origins, and trademarks were protected at common law and in equity at the time of the founding of our country. … For most of the 19th century, trademark protection was the province of the States. … Eventually, Congress stepped in to provide a degree of national uniformity, passing the first federal legislation protecting trademarks in 1870. (Citations omitted.)

Justice Anthony Kennedy strongly concurred and wrote:

At its most basic, the test for viewpoint discrimination is whether — within the relevant subject category — the government has singled out a subset of messages for disfavor based on the views expressed. … (“[T]he government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject”). In the instant case, the disparagement clause the Government now seeks to implement and enforce identifies the relevant subject as “persons, living or dead, institutions, beliefs, or national symbols.” Within that category, an applicant may register a positive or benign mark but not a derogatory one. The law thus reflects the Government’s disapproval of a subset of messages it finds offensive. This is the essence of viewpoint discrimination. …

A law that can be directed against speech found offen- sive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

As The New York Times points out, this bodes well for the Washington Redskins football team, which had been granted trademark status for many years but was denied in 2014 because of the disparagement clause.

But more importantly it underpins the principle that government may not approve or disapprove of the content of a message for whatever excuse.

 

A little Father’s Day tip o’ the dusty straw hat

Bull Mitch

My father was full of sage advice, none of which I ever followed. He was also full of witticisms, which are all I can really remember.

Things like:

“Great minds travel in the same plane, but fools just think alike.”

“You pays your money and takes your chances … but mostly you just pays your money.”

“Some people get filthy rich in the oil fields, we just get filthy.”

“I love hard work. I can sit and watch it for hours.”

“There were two Mitchells killed in the Alamo, so you know they were surrounded.”

He was a decorated hero of World War II but said he refused to wear the Purple Heart so he wouldn’t have to explain exactly where the wound was.

When he and his war buddies got to together they never talked about the fighting, but only the antics, like climbing on the hood of a truck and stealing eggs out of the back of a slow moving truck climbing a hill.

Though one of his friends once let slip that Dad, a bulldozer operator, actually did that scene from a John Wayne movie in which the bulldozer operator raised the blade to deflect bullets while rescuing pinned down soldiers.

Because he was a bulldozer operator they called him Bull Mitch.

After he died in an oil field accident while I was in college, I began to ask my co-workers to call me Mitch. I think they sometimes called me Bull Mitch behind my back, but for an entirely different reason. There is a little of our fathers in each of us.

Happy Father’s Day.

First posted in 2012.