The facts about Trump’s policy of separating families at the border

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“I hate the children being taken away. The Democrats have to change their law. That’s their law.”
— President Trump, in remarks to reporters at the White House, June 15

“We have the worst immigration laws in the entire world. Nobody has such sad, such bad and actually, in many cases, such horrible and tough — you see about child separation, you see what’s going on there.”
— Trump, in remarks at the White House, June 18

“Because of the Flores consent decree and a 9th Circuit Court decision, ICE can only keep families detained together for a very short period of time.”
— Attorney General Jeff Sessions, in a speech in Bozeman, Mont., June 7

“It’s the law, and that’s what the law states.”
— White House press secretary Sarah Huckabee Sanders, at a news briefing, June 14

“We do not have a policy of separating families at the border. Period.”
— Homeland Security Secretary Kirstjen Nielsen, on Twitter, June 17

The president and top administration officials say U.S. laws or court rulings are forcing them to separate families that are caught trying to cross the southern border.

These claims are false. Immigrant families are being separated primarily because the Trump administration in April began to prosecute as many border-crossing offenses as possible. This “zero-tolerance policy” applies to all adults, regardless of whether they cross alone or with their children.

The Justice Department can’t prosecute children along with their parents, so the natural result of the zero-tolerance policy has been a sharp rise in family separations. Nearly 2,000 immigrant children were separated from parents during six weeks in April and May, according to the Department of Homeland Security.

The Trump administration implemented this policy by choice and could end it by choice. No law or court ruling mandates family separations. In fact, during its first 15 months, the Trump administration released nearly 100,000 immigrants who were apprehended at the U.S.-Mexico border, a total that includes more than 37,500 unaccompanied minors and more than 61,000 family members.

Children continue to be released to their relatives or to shelters. But since the zero-tolerance policy took effect, parents as a rule are being prosecuted. Any conviction in those proceedings would be grounds for deportation.

We’ve published two fact-checks about family separations, but it turns out these Trumpian claims have a zombie quality and keep popping up in new ways.

In the latest iteration, Homeland Security Secretary Kirstjen Nielsen tweeted and then said at a White House briefing that the administration does not have “a policy of separating families at the border.” This is Orwellian stuff. Granted, the administration has not written regulations or policy documents that advertise, “Hey, we’re going to separate families.” But that’s the inevitable consequence, as Nielsen and other Trump administration officials acknowledge.

“Operationally what that means is we will have to separate your family,” Nielsen told NPR in May. “That’s no different than what we do every day in every part of the United States when an adult of a family commits a crime. If you as a parent break into a house, you will be incarcerated by police and thereby separated from your family. We’re doing the same thing at the border.”

Although we’ve fact-checked these family-separation claims twice, we hadn’t had the opportunity to assign a Pinocchio rating yet. We’ll do so now.

The Facts

Since 2014, hundreds of thousands of children and families have fled to the United States because of rampant violence and gang activity in El Salvador, Guatemala and Honduras. U.S. laws provide asylum or refugee status to qualified applicants, but the Trump administration says smugglers and bad actors are exploiting these same laws to gain entry. Nielsen says the government has detected hundreds of cases of fraud among migrants traveling with children who are not their own. President Trump says he wants to close what he describes as “loopholes” in these humanitarian-relief laws.

The Central American refugee crisis developed during President Barack Obama’s administration and continues under Trump. The two administrations have taken different approaches. The Justice Department under Obama prioritized the deportation of dangerous people. Once he took office, Trump issued an executive order rolling back much of the Obama-era framework.

Obama’s guidelines prioritized the deportation of gang members, those who posed a national security risk and those who had committed felonies. Trump’s January 2017 executive order does not include a priority list for deportations and refers only to “criminal offenses,” which is broad enough to encompass serious felonies as well as misdemeanors.

Then, in April 2018, Attorney General Jeff Sessions rolled out the zero-tolerance policy.

When families or individuals are apprehended by the Border Patrol, they’re taken into DHS custody. Under the zero-tolerance policy, DHS officials refer any adult “believed to have committed any crime, including illegal entry,” to the Justice Department for prosecution. If they’re convicted, that triggers deportation proceedings.

Illegal entry is a misdemeanor for first-time offenders, and a conviction is grounds for deportation. Because of Trump’s executive order, DHS can deport people for misdemeanors more easily, because the government no longer prioritizes the removal of dangerous criminals, gang members or national-security threats. (A DHS fact sheet says, “Any individual processed for removal, including those who are criminally prosecuted for illegal entry, may seek asylum or other protection available under law.”)

Families essentially are put on two different tracks. One track ends with deportation. The other doesn’t.

After a holding period, DHS transfers children to the custody of the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services. They spend an average 51 days at an ORR shelter before they’re placed with a sponsor in the United States, according to HHS. The government is required to place these children with family members whenever possible, even if those family members might be undocumented immigrants. “Approximately 85 percent of sponsors are parents” who were already in the country “or close family members,” according to HHS. Some children have no relatives available and in those cases the government may keep them in shelters for longer periods of time while suitable sponsors are identified and vetted.

Adding it all up, this means the Trump administration is operating a system in which immigrant families that are apprehended at the border get split up, because children go into a process in which they eventually get placed with sponsors in the country while their parents are prosecuted and potentially deported.

ENOUGH of the misinformation. This Administration did not create a policy of separating families at the border. pic.twitter.com/y0uuYUkSEL

— The White House (@WhiteHouse) June 18, 2018

This is a question of Trump and his Cabinet choosing to enforce some laws over others. The legal landscape did not change between the time the Trump administration released nearly 100,000 immigrants during its first 15 months and the time the zero-tolerance policy took effect in April 2018.

What changed was the administration’s handling of these cases. Undocumented immigrant families seeking asylum previously were released and went into the civil court system, but now the parents are being detained and sent to criminal courts while their kids are resettled in the United States as though they were unaccompanied minors.

The government has limited resources and cannot prosecute every crime, so setting up a system that prioritizes the prosecution of some offenses over others is a policy choice. The Supreme Court has said, “In our criminal justice system, the government retains ‘broad discretion’ as to whom to prosecute.” To charge or not to charge someone “generally rests entirely” on the prosecutor, the court has said.

Katie Waldman, a spokeswoman for Nielsen, said the administration does not have a family-separation policy. But Waldman agreed that Trump officials are exercising their prosecutorial discretion to charge more illegal-entry offenses, which in turn causes more family separations. The Obama administration also separated immigrant families, she said.

“We’re increasing the rate of what we were already doing,” Waldman said. “Instead of letting some slip through, we’re saying we’re doing it for all.”

Waldman sent figures from fiscal 2010 through 2016 showing that, out of 2,362,966 adults apprehended at the southern border, 492,970, or 21 percent, were referred for prosecution. These figures include all adults, not just those who crossed with minor children, so they’re not a measure of how many families were separated under Obama.

“During the Obama administration there was no policy in place that resulted in the systematic separation of families at the border, like we are now seeing under the Trump administration,” said Sarah Pierce, a policy analyst at the Migration Policy Institute. “Our understanding is that generally parents were not prosecuted for illegal entry under President Obama. There may have been some separation if there was suspicion that the children were being trafficked or a claimed parent-child relationship did not actually exist. But nothing like the levels we are seeing today.”

Trump administration officials say they’re trying to keep parents informed about their kids.

But some families instead have wound up in wrenching scenarios.

“Some of the most intense outrage at the measures has followed instances of parents deported to Central America without their children or spending weeks unable to locate their sons and daughters,” The Washington Post’s Nick Miroff reported. “In other instances, pediatricians and child advocates have reported seeing toddlers crying inconsolably for their mothers at shelters where staff are prohibited from physically comforting them.”

Administration officials have pointed to a set of laws and court rulings that they said forced their hand:

  • A 1997 federal consent decree that requires the government to release all children apprehended crossing the border. The “Flores” consent decree began as a class-action lawsuit. The Justice Department negotiated a settlement during President Bill Clinton’s administration. According to a 2016 decision by the U.S. Court of Appeals for the 9th Circuit, the Flores settlement requires the federal government to release rather than detain all undocumented immigrant children, whether they crossed with parents or alone. The agreement doesn’t cover any parents who might be accompanying those minors, but it doesn’t mandate that parents be prosecuted or that families be separated. Moreover, Congress could pass a law that overrides the terms of the Flores settlement. Waldman said the Flores settlement requires the government to keep immigrant families together for only 20 days, but no part of the consent decree requires that families be separated after 20 days. Courts have ruled that children must be released from detention facilities within 20 days under the Flores consent decree, but none of these legal developments prevents the government from releasing parents along with children.
  • A 2008 law meant to curb human trafficking called the Trafficking Victims Protection Reauthorization Act (TVPRA). This law covers children of all nationalities except Canadians and Mexicans. Central American children who are apprehended trying to enter the United States must be released rather than detained under the terms of the TVPRA, and they’re exempt from prompt return to their home countries. The law passed with wide bipartisan support and was signed by a Republican president, George W. Bush. No part of the TVPRA requires family separations.
  • The Immigration and Nationality Act of 1952. This comprehensive law governs U.S. immigration and citizenship and makes a person’s first illegal entry into the United States a misdemeanor. Clinton, Bush and Obama — the presidents who were in office during the immigration boom of the past few decades — never enforced the INA’s illegal-entry provision with the Trump administration’s zeal. The INA says nothing about separating families. It was sponsored by Democrats and passed by a Democratic-held Congress. President Harry Truman, also a Democrat, tried to veto the bill, describing it as a reactionary and “un-American” measure meant to keep out immigrants from Eastern Europe. Congress overrode his veto.

“What has changed is that we no longer exempt entire classes of people who break the law,” Nielsen said at a White House briefing June 18. “Everyone is subject to prosecution.”

It’s unclear whether 100 percent of adults are being prosecuted. Experts on the ground say there are not enough resources on the border to process all these cases. Trump administration officials say immigrants should show up at a port of entry to request asylum if they want to avoid prosecution, but there’s usually a big crowd and people often get turned away at these entry points, according to reporting from Texas Monthly.

It’s strange to behold Trump distancing himself from the zero-tolerance policy (“the Democrats gave us that law”) while Nielsen claims it doesn’t exist (“it’s not a policy”) and Sessions defends it in speech after speech.

“We do have a policy of prosecuting adults who flout our laws to come here illegally instead of waiting their turn or claiming asylum at any port of entry,” Sessions said in a speech on June 18 in New Orleans. “We cannot and will not encourage people to bring children by giving them blanket immunity from our laws.”

In a June 7 speech, he said: “I hope that we don’t have to separate any more children from any more adults. But there’s only one way to ensure that is the case: it’s for people to stop smuggling children illegally. Stop crossing the border illegally with your children. Apply to enter lawfully. Wait your turn.”

The attorney general also suggested on June 7 that legal developments are forcing his hand. “Because of the Flores consent decree and a 9th Circuit Court decision, ICE can only keep families detained together for a very short period of time,” he said. But as we’ve explained, this is misleading. Neither the consent decree nor the court ruling forces the government to separate families. What they do provide is accommodations for children that the government could extend to parents if it wanted to.

For Trump, the family-separation policy is leverage as he seeks congressional funding for his promised border wall and other immigration priorities, according to reporting by The Washington Post. Top DHS officials have said that threatening adults with criminal charges and prison time would be the “most effective” way to reverse the rising number of illegal crossings.

The Pinocchio Test

The doublespeak coming from Trump and top administration officials on this issue is breathtaking, not only because of the sheer audacity of these claims but because they keep being repeated without evidence. Immigrant families are being separated at the border not because of Democrats and not because some law forces this result, as Trump insists. They’re being separated because the Trump administration, under its zero-tolerance policy, is choosing to prosecute border-crossing adults for any offenses.

This includes illegal-entry misdemeanors, which are being prosecuted at a rate not seen in previous administrations. Because the act of crossing itself is now being treated as an offense worthy of prosecution, any family that enters the United States illegally is likely to end up separated. Nielsen may choose not to call this a “family separation policy,” but that’s precisely the effect it has.

Sessions, who otherwise owns up to what’s happening, has suggested that the Flores settlement and a court ruling are forcing his hand. They’re not. At heart, this is an issue of prosecutorial discretion: his discretion.

The Trump administration owns this family-separation policy and its spin deserves Four Pinocchios.

Four Pinocchios

by Salvador Rizzo/WAPO
Posted by The NON-Conformist
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Obamacare Critics and Defenders Team Up Against the Trump Administration’s Refusal to Defend the Health Law in Court The DOJ’s argument for striking down the health law’s preexisting conditions rules is weak.

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Last week, in response to a legal challenge filed by Texas and a group of conservatives states, the Trump administration took an unusual step by announcing that it would not defend Obamacare in court. Instead, the Trump administration took the position that the health law’s was unconstitutional, and that its preexisting conditions regulations should be struck down.

The federal government’s suit has drawn rebuke from some unlikely quarters. An attorney with 20 years of experience at the Justice Department resigned this week as a result of the administration’s position. Sen. Lamar Alexander (R-Tenn.) said it was “as far-fetched a legal argument as I think I’ve ever heard.” Senate Majority Leader Mitch McConnell distanced his party from the argument, saying that “everyone” in the Senate favored maintaining coverage for people with preexisting conditions.

Even Health and Human Services (HHS) Sec. Alex Azar, who signed the brief in question, described it as a “constitutional and legal position, not a policy position.”

It doesn’t appear to be much of one.

Among the more unusual responses to the administration’s argument came today in the form a brief filed by five academic experts with wildly divergent views about Obamacare. The brief is signed by Jonathan Adler, Nicholas Bagley, Abbe Gluck, Ilya Somin, and Kevin Walsh. Bagley and Gluck have both defended the health law’s legality in the past. Walsh has published several analyses of the legal arguments surrounding Obamacare. But Adler and Somin, notably, are libertarian-leaning law professors who have been quite critical of the health law over the years. (Both are also contributors to the Volokh Conspiracy, which is published at Reason.com.)

The opening of the brief stresses that the signers have spent the last several years disagreeing with each other, in some cases quite forcefully, about the legal and constitutional merits of the health law. The brief takes no position on the mandate itself. But in this case, they all agree that the federal government’s argument for striking down the law’s preexisting rules is, legally speaking, pretty terrible.

Understanding the brief requires a little bit of background. In 2012, the Supreme Court ruled that although Obamacare’s mandate was unconstitutional when viewed as a purchase requirement or economic command, it could stand because it raised revenue and therefore functioned as a tax. But last year, as part of tax reform legislation, Congress eliminated the penalty for not complying with Obamacare’s individual mandate. The mandate remained on the books, but for all practical purposes it had been repealed. And it no longer raised any revenue.

As a result, a group of conservative states, led by Texas, challenged the legality of the (now unenforceable) mandate, and further argued that because it is the centerpiece of the health law, all of Obamacare should be struck down.

This is an argument about what’s known as “severability” — whether the remaining parts of a law should be struck down if a court finds one provision to be illegal.

The Trump administration’s argument does not go quite as far as the states. It agrees that the mandate is now unconstitutional, and takes the position that although much of the law, including the Medicaid expansion and private insurance subsidies, can stand, the preexisting conditions rules should be tossed along with the mandate, because the mandate and the preexisting conditions rules are not severable. To back up its argument, the administration cites findings associated with the statute of Obamacare (that were also cited by the Obama administration in court) declaring that the mandate and the preexisting conditions rules are a bundle that should not be separated.

For critics of Obamacare, there is something naturally appealing about this argument: It uses the text of the health law, and the Supreme Court’s decision to uphold it, to attempt to knock it down. I have been open to arguments along these lines under the Obama administration, and I think they made sense at the time.

The problem, as the new brief points out, is that determining severability is about determining congressional intent. And the current Congress has made its position on the matter quite apparent. Often, this requires some sort of guessing. But at this point, we know exactly what Congress thinks about the law it chose to amend, because it very clearly chose to eliminate the mandate penalty while leaving the preexisting conditions rules in place. That is about as clear a statement of intent as you can ever imagine from Congress.

The brief argues that the administration’s argument relies on “time shifting” to make its case, and that the administration’s case effectively gets severability backward by “[disregarding] the clearly expressed intent of Congress and seek judicial invalidation of statutory provisions that Congress chose to leave intact.”

The findings about severability that the administration cites to back up its arguments about the preexisting were made by a different Congress, prior to the elimination of the mandate penalty and other alterations to the law. They were made in the context of what is now, essentially, a different law. They don’t apply.

I have been a critic of Obamacare for years, and I continue to believe there are many problems with the law. The preexisting conditions rules, while popular, distort the individual market and have contributed to rising premiums in the exchanges. (The popularity of those rules, of course, is one reason why Republicans haven’t touched them, and why GOP officials are distancing themselves from the policy implications of their argument.) But critics of the health law do themselves no favors by signing on to a fundamentally weak legal challenge like this.

The bigger problem with this case is that it has the potential to serve as a substitute for a policy agenda. Republicans still need a broad health policy vision that goes beyond simply attacking Obamacare. But as long as they are basing their hopes on a legal manuever as poorly thought out as this one, that’s not something we’re likely to see.

By Peter Suderman/reason

Posted by The NON-Conformist

At the Singapore summit, President Trump got played

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President Trump got played.

After all the hoopla and pageantry and Trump braggadocio at the Singapore summit, with Kim Jong Un standing alongside the U.S. president in front of thousands of journalists, the North Korean leader came out the winner.

Kim had already racked up points just by standing alongside the U.S. president as an equal, showered with Trump’s praise and transformed from pariah to international rock star.  In recent weeks he was welcomed to Beijing and Seoul, and invited to Moscow. China and Russia have already started to loosen up sanctions.

All this might have been an acceptable cost for achieving the U.S. goal: to get Kim to commit specifically to shedding his nuclear weapons within a reasonable time frame, in a verifiable fashion.  But, on this, Trump failed big time: The joint statement that emerged from the summit included no such firm commitments, using vague language on denuclearization that is interpreted very differently by the two sides. “It does not meet the minimum requirements in terms of what we expected them to do,” Ambassador Joseph Y. Yun, the former Special U.S. Representative to North Korea, told CNN.

>> READ MORE: Analysis: By Trump’s own yardstick, North Korea pact falls flat

Instead, Trump made a huge concession up front stopping joint U.S. military exercises with South Korea, a key tool for keeping pressure on the North. And he didn’t even inform the Seoul government beforehand, leaving it publicly grasping for information on U.S. intentions.

“I gave up nothing,” the president insisted in a press conference. He was clearly oblivious to the fact that he was playing into North Korea’s longtime game plan: to emerge as an internationally recognized state, recognized by America and the world — without surrendering all of its nukes.

Let’s look at what the president did give up.

In the run-up to the summit, U.S. and Korean negotiators were wrestling over whether North Korea would make a substantial pledge of denuclearization up front, including details of its nuclear program and a timeline for dismantling it.

But, going into the summit, the two sides could not even agree on a common definition of the term  “denuclearization.”

“Our definition of denuclearization is they give up all their fissile material, facilities, nuclear material taken out, irrevocably and verifiably,” says Dr. Jung Pak, top Korea expert at Brookings and former senior CIA Korea analyst.

The joint statement, however, contained only a vague commitment to “complete denuclearization of the Korean peninsula” – terminology favored by Pyongyang and Beijing.  In North Korea’s interpretation, say North Korea experts, this means an end to the U.S. troop presence in South Korea and nuclear umbrella over that country and Japan – without any corresponding specifics on eliminating its own nuclear program.

By using this language – and ending joint exercises – Trump acceded to Kim’s game plan. He went even further, repeating his desire to pull U.S. troops out of Korea (although not immediately) and emphasizing his desire to save money by so doing.  All this before North Korea makes any firm commitment to giving up its nuclear weapons and missile programs.

True, Kim has frozen his nuclear tests and missile tests – for now.  And he has destroyed an already collapsing nuclear test site and promised Trump more on other sites.  But none of this speaks to the onetime American demand that North Korean completely, irrevocably and verifiably destroy its weapons.

Negotiations will now commence, but if the past is history, they could drag on for a very long time and never reach a firm conclusion.  Meanwhile, U.S. leverage on North Korea is declining,  as China and Russia push to loosen sanctions.  A push for a formal peace between North and South Korea will further weaken any future pressure.  And Trump’s eagerness to halt joint military excercises – and remove U.S. troops – undermines U.S. leverage further.

This gives North Korea little reason to swiftly negotiate an end to its weapons program.  After all, the U.S. president has told the world that Kim is “very smart” and “honorable” and “wants to do the right thing.”  Trump even sloughed off questions at the press conference about North Korean forced labor camps where thousands are tortured and murdered, saying such things happen elsewhere.

How embarrassing it would be for Trump to resume insulting the great Korean leader.  Much easier to insult a democratic prime minister like Justin Trudeau.

The irony here is that, contrary to Trump’s exaggerated claims, Presidents Clinton and George W. Bush got much more specific commitments from Pyongyang. In 1992, 1994 and 2005, the North Koreans pledged to eliminate all their nuclear weapons.  They reneged.

When asked why he’d do better, Trump bragged: “This is a much different president.”  Clearly this president believes his smarts will get results from North Korea, where previous presidents met failure.

The good news is that war on the Korean peninsula looks far less likely than a few months ago. But judging from the Singapore summit, it is Kim Jong Un who has mastered the art of dealing with Trump.

By Trudy Rubin/Phillynews

Posted by The NON-Conformist

 

‘Everything’s on the line’: AT&T’s showdown with DOJ over Time Warner finally gets a decision today

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A federal judge is expected to rule Tuesday on whether to block AT&T’s $85 billion Time Warner merger, in what has become America’s most closely watched antitrust trial in decades.

The opinion by Judge Richard Leon could determine AT&T’s future in digital entertainment as the company seeks to go toe-to-toe with tech titans such as Facebook, Google and Netflix. But the stakes are equally high for the Justice Department, which has not litigated a case of this kind since the Nixon administration. A court victory for the government, analysts say, could symbolize the beginning of a tough new era in antitrust enforcement. But an AT&T win could give pause to regulators — and perhaps deter them from blocking mergers in the future that might otherwise be deemed anticompetitive.

Though the Justice Department has sought to tamp down concerns about the AT&T case being a bellwether, analysts widely anticipate more deals to be announced in the event of an AT&T court victory, particularly mergers involving corporations that primarily operate in different industries. These types of so-called vertical deals are becoming more popular. In recent months, Verizon has purchased the digital media companies AOL and Yahoo. Amazon.com expanded its grocery business by buying Whole Foods. (Amazon chief executive Jeffrey P. Bezos also owns The Washington Post.) Comcast, meanwhile, is gearing up to fight Disney for control over 21st Century Fox.

“Everything’s on the line now for the Department of Justice,” said Gene Kimmelman, a former DOJ antitrust official who now leads the consumer advocacy group Public Knowledge. “They either come out as enormous victors … or they’ll face an avalanche of new transactions if they lose this case.”

Analysts predict a wide range of possible outcomes in the trial. Leon could determine the merger poses a competitive threat and block the deal outright, siding with the Justice Department. He could rule for AT&T and approve the entire acquisition without conditions, making it possible for the deal to close by June 18. Or he could strike a middle ground, imposing his own changes to the deal or asking the two sides to help him tweak it.

No matter how he rules, the full implications will take time to digest — and will likely hold implications for a string of other mergers and acquisitions on the horizon. Leon has previously said to expect at least a 200-page written opinion.

The lengthy decision reflects the grueling six-week legal assault that government lawyers mounted against AT&T and Time Warner this spring in a dim, windowless Washington courtroom. Both AT&T and the Justice Department declined to comment for this story.

The merged firm, prosecutors argued, would anticompetitively unite AT&T’s massive distribution infrastructure — its cellular and wired broadband networks — with Time Warner’s premium content including HBO, Warner Bros. and Turner Broadcasting, whose assets include the cable channels CNN, TBS and TNT.

AT&T executives defended the merger in court as a major strategic shift for the telecom giant, one that could prove as significant as the company’s decision more than a decade ago to enter the market for broadband and mobile data. In reinventing itself for an age of streaming media, AT&T aspires to deliver more television content over Internet connections to mobile and digital devices. With the viewing data it gathers from smart TVs, computers, tablets and smartphones, AT&T plans to build a targeted advertising empire resembling that of the Web’s biggest ad giants.

That effort could be aided by another major milestone this week: The official repeal on Monday of the federal government’s net neutrality rules. The rules, targeted for elimination by the Federal Communications Commission in a vote last year, had banned providers like AT&T or Verizon from prioritizing their own content over that of other websites. And they had laid the foundation for more stringent — though now also repealed — privacy regulations governing ISPs’ handling of customer data.

Winning the antitrust case could allow AT&T to capitalize on that deregulation, analysts say.

“Consumer groups are worried that the court will give AT&T powerful new content, and that the FCC will let them monetize it in anticompetitive ways,” said Paul Gallant, an industry analyst at Cowen & Co. “But investors are more sanguine. They like the hedge of AT&T owning content.”

Antitrust attorneys litigating the Time Warner case relied on complex economic models and testimony from AT&T’s competitors to outline a nightmare scenario in which AT&T could allegedly use its newfound control over Turner Broadcasting to unfairly benefit DirecTV, AT&T’s own subscription television service.

Turner’s control over live sports, news and other desirable programming would encourage AT&T to seek more money for that content when licensing it to competing TV services, the Justice Department argued. Those higher prices would allegedly be passed along to consumers to the tune of hundreds of millions of dollars per year. Meanwhile, the attorneys said, DirecTV would reap rewards by luring away any customers dissatisfied with the price hikes at other cable companies.

“AT&T would not want Time Warner content distributed in ways that increase competitive pressure on DirecTV,” the government wrote in its closing brief to the court.

Attorneys for AT&T and Time Warner lashed out at the government’s antitrust claims, calling them “preposterous.” Thanks to new targeted advertising revenue, AT&T argued, the deal would lead to price decreases for TV viewers, not increases. And to highlight its good faith in content negotiations, AT&T pointed to 1,000 letters it sent to rival TV services last year committing to an arbitration process after the merger, in the event those competitors felt they were being overcharged for Time Warner content. Opponents of the deal said the arbitration offer was insufficient, though in his questioning in court, Leon expressed significant interest in it.

AT&T’s legal team sought to dismantle the Justice Department’s economic analysis of the deal, poking holes in research done by the agency’s star witness, a University of California economist named Carl Shapiro. Shapiro’s analysis failed to consider enough real-world examples of programming disputes, AT&T argued, instead drawing on surveys and long-term projections to arrive at the conclusion that consumers will be harmed by the merger.

Hanging over the trial was also the political shadow of President Trump, who has publicly and repeatedly criticized the merger as concentrating too much power “in the hands of too few.” Arguing that it was being unfairly singled out for punishment, AT&T briefly demanded that the Justice Department hand over White House communications logs that could prove whether Trump inappropriately directed the agency to block AT&T’s merger. But Leon denied that request, focusing narrowly instead on the core antitrust arguments in the case.

The high-profile case is widely viewed as a bellwether for other mergers waiting in the wings. Should AT&T be allowed to buy Time Warner, analysts say an arms race will follow in which companies of all stripes will seek to consolidate with other businesses. An acquisition involving 21st Century Fox is already in the works, with Comcast and Disney poised for a bidding war over Fox’s lucrative film and TV studios, cable networks and other assets. Meanwhile, T-Mobile and Sprint have announced a merger of their own.

Wall Street will be looking for clues in the AT&T decision as to whether the government is likely to challenge those deals.

“At the simplest level, the market will draw a conclusion as to whether this administration is laissez faire or interventionist when it comes to big deals,” he said.

By Brian Fung/WAPO

Posted by The NON-Conformist

NFL’s National Anthem Policy Exposes Free Speech Hypocrisy of Right, Left, and Trump “You have to stand proudly for the national anthem,” Trump says, “or you shouldn’t be playing.”

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Donald Trump, who won the presidency in part by promising voters he would stand against the oppression of political correctness, is now taking a victory lap after successfully pressuring the National Football League to protect the delicate feelings of its snowflake audience.

The NFL announced yesterday that all players on the field during the singing of the national anthem would be forbidden to kneel, sit, or show any disrespect whatsoever. Teams that allow players to publicly protest racism and police brutality will be subject to fines. Players will be expected to confine their dissent to the locker room, concealing it from easily offended consumers of sports entertainment. GOP spokesperson Kayleigh McEnany summarized the new policy thusly during an appearance on Kennedy last night:

Players will respect our military, they will respect what our flag stands for and the unity of what our national anthem stands for, and if they don’t want to respect it, they can take a hike and go to the locker room. Now everyone has to respect our military, including multimillion-dollar football players.

The new policy is undoubtedly crafted to appease not just some viewers but Trump, who has repeatedly attacked the NFL for failing to punish the defiant players. “I don’t think people should be staying in locker rooms, but still, I think it’s good,” Trump said on Fox and Friends this morning. “You have to stand proudly for the national anthem, or you shouldn’t be playing, you shouldn’t be there, maybe you shouldn’t be in the country.” Vice President Mike Pence tweeted the news, adding a single remark: “#WINNING.”

Sadly, the NFL’s bowing to Trump’s whims may indeed be a win of sorts for this administration. It will please the many conservatives who routinely complain that the campus left is hypersensitive but embrace the victim role when the shoe is on the other foot. Just take a look at the Twitter feed of Turning Points USA Director Charlie Kirk, a well-known critic of political correctness on campus.

Kirk’s pinned tweet is video footage of him discussing campus culture with Sean Hannity, Eric Trump, and Donald Trump Jr. “College campuses have become a place where the administrators and the elites want everybody to look different but think the same,” Kirk explains. “And it’s all about conformity. If you have any point of dissension from the status quo of liberal orthodoxy, you will be punished.” Just under the pinned tweet is Kirk’s most recent tweet: “Stand for the national anthem!” Talk about conformity.

The NFL is of course a private entity, and requiring players to stand for the anthem isn’t a First Amendment violation. But as National Review‘s David French points out in a terrific New York Times op-ed piece, Google, Mozilla, and Yale are all private too. Yet conservatives see nothing wrong with bemoaning these entities’ internal crackdowns on speech. Indeed, concern that social media giants like Facebook and Twitter are censoring conservatives is now a major concern for the right. There was even a panel discussion about it at this year’s Conservative Political Action Conference.

Middlebury College shouldn’t sit idly by while students literally attack Charles Murray, and Twitter shouldn’t scrub all non-leftist views from its platform. They shouldn’t do those things because they have made commitments to the spirit of the First Amendment. They say free speech matters to them, and it is perfectly fair for conservatives to hold their feet to the fire when they fall short of those commitments.

But conservatives are being brazenly hypocritical when they celebrate the NFL’s decision to muzzle its players. The NFL might not have made any commitment to free expression, but its players were engaged in one of the most civil and least disruptive forms of protest imaginable. Saying that simply kneeling for the national anthem is so offensive that it must be confined to the locker room or banned outright reflects the same hypersensitivity that plagues the social justice left.

Ironically, the best defense of the NFL’s new protest ban is an argument most often put forward by leftists who defend disinvitations and shut-downs of offensive speakers on campus. I have frequently seen the following XKCD cartoon posted in response to such incidents:

PoliMath @politicalmath

Guys. The NFL ban on kneeling is absolutely awful and I hate it. It is anti free speech.
It is also 100% in line with the “showing you the door” attitude on free speech you’ve been pushing the last several years.
Please think hard about that.

The government was partly involved in the NFL case, since Trump’s displeasure was a motivating factor. But there’s little doubt the league was also trying to appease some viewers who were uncomfortable with the players’ protests. This is what comes from defending a safe-space mentality: more safe spaces, and not just on the campus quad but in football stadiums as well.

By Robby Soave/Reason

Posted by The NON-Conformist

Art of the Dealbreaker: Trump’s Cancellation of the Summit with Kim

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Photo by Matt Brown | CC BY 2.0

Donald Trump writes Kim Jong Un that “based on the tremendous anger and open hostility expressed in your recent statement” he must cancel the planned Singapore summit.
The “recent statement” appears to be one from Choe Son Hui, North Korea’s vice minister of foreign affairs and nuclear negotiator (full text below). It was issued after Vice President Mike Pence told Fox News that North Korea could end up like Libya if it fails to make a nuclear deal with Washington.
This was a very stupid, provocative thing to say. Muammar Gaddafy gave up his small nuke program in 2003 but was overthrown by a NATO campaign in 2011 that destroyed his country and resulted in his brutal murder. The historical lesson is not: give up your nuclear program or weapons or get sodomized by a bayonet as you die (Gadaffy’s fate, which as you know Hillary Clinton found hilarious), but rather, give up your weapons and enjoy some respite from sanctions and normalized relations, etc., but eight years later face fire and fury, all the more vulnerable due to your earlier foolish capitulation.
Pence had declared: “There was some talk about the Libyan model last week, and you know, as the President made clear, this will only end like the Libyan model ended if Kim Jong Un doesn’t make a deal.” Asked if this could be interpreted as a threat, he replied, “Well, I think it’s more of a fact.” (This is after the odious National Security Advisor John Bolton had also compared U.S. intentions to those in Libya that resulted in the overthrow and murder of Gaddafi.)
Choe replied: “Vice President Pence has made unbridled and impudent remarks that North Korea might end like Libya, military option for North Korea never came off the table, the US needs complete, verifiable, and irreversible denuclearization, and so on. As a person involved in the US affairs, I cannot suppress my surprise at such ignorant and stupid remarks gushing out from the mouth of the US vice president.”
Trump who calls people all kinds of insulting names all the time finds this unacceptable? Reason to cancel the meeting?
“In view of the remarks of the US high-ranking politicians who have not yet woken up to this stark reality and compare the DPRK to Libya that met a tragic fate, I come to think that they know too little about us. To borrow their words, we can also make the US taste an appalling tragedy it has neither experienced nor even imagined up to now. Before making such reckless threatening remarks without knowing exactly who he is facing, Pence should have seriously considered the terrible consequences of his words… Whether the US will meet us at a meeting room or encounter us at nuclear-to-nuclear showdown is entirely dependent upon the decision and behavior of the United States. In case the US offends against our goodwill and clings to unlawful and outrageous acts, I will put forward a suggestion to our supreme leadership for reconsidering the DPRK-US summit.”
Trump tells Kim, “If you change your mind about this important summit” be in touch. As though Kim was the one who had cancelled and changed his mind. There were some reports (maybe disinformation) about Kim’s concern that a coup might occur while he was out of the country, but other affirming the DPRK’s commitment to the Singapore date. It’s possible there’s been some coordination on postponement and Trump uses the easy excuse of being offended by the Koreans’ typically vituperative language.
Whether this is a temporary setback or the collapse of diplomatic efforts, Trump looks bad in this situation. He seems petulant and hypocritical. Yes the North Korean statement by a high-ranking woman in the Foreign Ministry is defiant, but many Koreans are like Trump in that when attacked rhetorically, they counterattack rhetorically. In this case the insulting language was intended to echo Trump’s language vis-a-vis the DPRK.
“To borrow their words, we can also make the US taste an appalling tragedy it has neither experienced nor even imagined up to now.” But this as she notes merely echoes Trump’s rhetoric at the United Nations when he warned that the U.S. would “totally destroy” North Korea if it didn’t denuclearize.
I sense this decision will meet with general disappointment throughout the world, and Trump not Kim will be blamed. People associate Trump himself with anger and hostility and will wonder why he’s made a big deal out of a Foreign Ministry statement (quite appropriately!) protesting the repeated references by top U.S. officials to the Libyan model. It will join the Paris Accord pullout, Iran deal pullout, and move of the U.S. embassy in Israel to Jerusalem, as examples of Trump’s irrationality and indications that the U.S. has lost its way in the world.
* * * * *
Full text of Choi Son Hui’s statement:
At an interview at Fox News on May 21, US Vice-President Pence made unbridled and impudent remarks that North Korea might end like Libya, military option for North Korea never came off the table, the US needs complete, verifiable and irreversible denuclearisation, and so on.
As a person involved in the US affairs, I cannot suppress my surprise at such ignorant and stupid remarks gushing out from the mouth of the US vice-president.
If he is vice-president of “single superpower” as is in name, it will be proper for him to know even a little bit about the current state of global affairs and to sense to a certain degree the trends in dialogue and the climate of détente.
We could surmise more than enough what a political dummy he is as he is trying to compare the DPRK, a nuclear weapon state, to Libya that had simply installed a few items of equipment and fiddled around with them.
Soon after the White House National Security Adviser Bolton made the reckless remarks, Vice-President Pence has again spat out nonsense that the DPRK would follow in Libya’s footstep.
It is to be underlined, however, that in order not to follow in Libya’s footstep, we paid a heavy price to build up our powerful and reliable strength that can defend ourselves and safeguard peace and security in the Korean peninsula and the region.
In view of the remarks of the US high-ranking politicians who have not yet woken up to this stark reality and compare the DPRK to Libya that met a tragic fate, I come to think that they know too little about us.
To borrow their words, we can also make the US taste an appalling tragedy it has neither experienced nor even imagined up to now.
Before making such reckless threatening remarks without knowing exactly who he is facing, Pence should have seriously considered the terrible consequences of his words.
It is the US who has asked for dialogue, but now it is misleading the public opinion as if we have invited them to sit with us.
I only wonder what is the ulterior motive behind its move and what is it the US has calculated to gain from that.
We will neither beg the US for dialogue nor take the trouble to persuade them if they do not want to sit together with us.
Whether the US will meet us at a meeting room or encounter us at nuclear-to-nuclear showdown is entirely dependent upon the decision and behavior of the United States.
In case the US offends against our goodwill and clings to unlawful and outrageous acts, I will put forward a suggestion to our supreme leadership for reconsidering the DPRK-US summit.

by Gary Leupp/counterpunch

Posted by The NON-Conformist

Big Pharma Gets a Big Win From Trump The president campaigned on stinging criticisms of the pharmaceutical industry and promises to use Medicare to lower drug prices. But none of that materialized in his drug-pricing speech this week.

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President Trump shakes hands with Health and Human Services Secretary Alex Azar after delivering a speech on prescription-drug prices.President Trump shakes hands with Health and Human Services Secretary Alex Azar after delivering a speech on prescription-drug prices.

During the 2016 presidential campaign, one candidate famously claimed that drug companies were “getting away with murder”—using armies of lobbyists to influence Congress and artificially inflating drug prices.

But a lot can change in two years. That candidate was Donald Trump, who aggravated fellow Republicans on the trail with his forceful and blunt criticism of the pharmaceutical industry. Taking a page from the Democrats, he embraced a plan to allow Medicare to negotiate directly with drug manufacturers, promising that such a scheme could save hundreds of millions of dollars and reduce drug prices. When he was asked why the plan, which has circulated around Capitol Hill for about 15 years, hadn’t yet passed Congress, Trump said without reservation that it was all drug companies’ fault.

The industry is now having the last laugh. In a speech Friday on drug pricing, President Trump completed his 180-degree turn on Candidate Trump’s promises. The White House’s new plan, as outlined, does seek to address high prescription-drug costs. “We will not rest until this job of unfair pricing is a total victory,” Trump said. But it doesn’t directly challenge the pharmaceutical industry and the direct role it plays in setting prices. Indeed, the new policy largely meets the goals of big pharma, signaling an ever-tightening bond between Trump and drug manufacturers.

One of the major pieces of the plan that Trump outlined Friday is an ongoing effort to change the federal government’s 340B Drug Pricing Program, which provides rebates to hospitals that treat a high share of Medicaid and uninsured patients. Those rebates are intended to lower the cost of care by forcing drug manufacturers to provide medications—especially high-cost drugs for chronic conditions—at cheaper prices to the neediest populations. But the $18 billion 340B program has been the setting for a war between drug manufacturers, who claim hospitals are simply pocketing the savings and not passing them on to patients, and the hospitals themselves. They claim drug manufacturers aren’t actually lowering prices, and instead are using the rebates as an excuse to increase their list prices.

In a policy document released Friday, the White House described its commitment to requiring that safety-net hospitals “use their 340B drug discounts to provide care to more low-income and vulnerable patients.” But an earlier move from the administration undercuts that commitment. Late last year, the Centers for Medicare and Medicaid Services slashed the 340B program to the tune of somewhere between $900 million to $1.65 billion, effectively siding with drug manufacturers who say the rebates aren’t worthwhile.
Trump also seemed to take aim at a longtime industry foe in his speech: pharmacy benefits managers, or PBMs. PBMs function as industry middlemen, administering the prescription-drug programs for large insurance programs covering the majority of Americans. These companies handle negotiations between insurers and drug manufacturers on drug prices, including managing rebates from manufacturers that are designed to entice insurers into accepting certain medications on their plans. Drug manufacturers argue that PBMs have wrangled too-high rebates that they keep to themselves instead of passing on to consumers.
In its policy document, the White House vaguely committed to “requiring Pharmacy Benefit Managers to act in the best interests of patients.” Trump was much more forceful in his remarks. “We’re very much eliminating the middlemen,” Trump said, apparently referring to PBMs. “The middlemen became very, very rich.”

Drug companies argue that limiting the 340B discounts and PBM rebates will reduce the consumer costs, especially for elderly people receiving their health care through Medicare Part D. But on that front, Trump has also walked back a major campaign pledge: allowing Part D to negotiate directly with insurers to lower costs of the drugs it offers. Trump said in his speech Friday that “we will have tougher negotiation,” and the policy blueprint released by the White House pushes for “allowing greater flexibility in benefit design to encourage better price negotiation.” But that policy doesn’t seem likely to affect the baseline negotiating capacity of the program: Congress would probably need to pass legislation to allow the health and human-services secretary to make deals with drug companies. Without that legislation in place, Trump has little executive authority to change anything.

While Trump did outline support for a Medicare program that would limit out-of-pocket spending on drugs, that reform seems similarly toothless. That’s because it would have little to do with actual drug prices. Instead, it would increase the amount that Medicare would pay for some seniors’ drugs, in effect shifting more tax dollars toward hiding the true costs of care for consumers.

Perhaps the most impactful set of policies that Trump outlined—and that he actually has the power to pursue—involve what he calls “putting American patients first”: intervening in an escalating drug-price war and increasing research-and-development competition between domestic drug companies and international drug companies. International competition has long been a major focus of drug lobbying, as manufacturers in the United States claim they shoulder most of the burden of research, while price-setting in other countries means they don’t reap commensurate global profits. In response, Trump promised to release a comparison of global drug prices. He also pledged to change drug-patenting and Food and Drug Administration regulation to enhance domestic research and expand the ability of pharmaceutical companies to keep effective monopolies over their drugs.

In all, while the president promised “the most sweeping action in history to lower the costs of prescription drugs for the American people,” the policies described Friday seem somewhat marginal, and none address the actual prices pharmaceutical companies are charging.

Trump seemed to frame his remarks, as well as the new policy outline, as a continued rebuke of the industry, saying “the drug lobby is making an absolute fortune at the expense of American consumers.” But that rebuke falls especially flat this week, given the still-unfolding story that pharmaceutical giant Novartis paid his personal attorney Michael Cohen $1.2 million to gain a better understanding of the president’s health-care policy.

Trump’s policy seems to fall pretty much in line with what Novartis and other pharmaceutical companies have lobbied for years to get. With health secretary and former Eli Lilly president Alex Azar on board to fill in the details, the president outlined a plan that validated longtime drug-industry critiques of Part D payments, rebates, and PBMs. The plan shifts more government money toward obscuring the list prices of manufacturers’ drugs, and takes a protectionist stance on American companies. President Trump calls his plan “American patients first,” but the interests of American pharmaceuticals may be taking priority.

By Vann R. Newkirk II/TheAtlantic

Posted by The NON-Conformist

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