RUTHFULLY YOURS

According to prominent members of the progressive elite — and a few members of the conservative elite — the election of Donald Trump signaled the rise in the United States of fascism or racism or both. These sweeping smears of Trump and his supporters, which began during the primaries, backfired in 2016: They helped fuel the discontent among ordinary voters that provided the real-estate mogul’s slender margin of victory in key Rust Belt states. The elites’ intemperate condemnation of the people’s judgment bolstered the people’s dim view of the elites.

The elites’ fear, both before and after the election, that Trump was leading a fascist takeover of America has been fueled by his shoot-from-the-hip tweets and off-the-cuff public pronouncements, many of which evinced an ignorance of the rule of law and an enthusiasm for strong rulers. But hyperbole and bombast do not a fascist takeover make. Moreover, elites would be well advised to recall — or learn — that America’s sturdy constitutional constraints, starting with the separation of powers, anticipate the ascendancy of unenlightened statesmen and are designed to keep dark impulses in check. In addition, fascism rests on the acquiescence to a powerful leader of the military, business community, media, entertainment industry, and academy. Trump cannot even unify his own party around his leadership.

The accusation that Trump’s victory represented the recrudescence of a deep-seated American racism was equally scurrilous and equally implausible. Racists still exist in America and some felt emboldened by Trump to purvey their hatred. But there is no reason to suppose that if a white, male, progressive Democrat had governed in the manner of Trump’s predecessor that popular frustration would have been less robust. President Obama rammed through Congress a fundamental transformation of health care in defiance of popular will. He usurped Congress’s lawmaking powers by issuing executive orders that appropriated funds to sustain the Affordable Care Act, that imposed extensive environmental regulations, and that altered the legal status of illegal aliens. He presided over an Internal Revenue Service that methodically impeded his political opponents’ participation in the democratic process. He downplayed or dismissed voters’ anxieties about jobs, trade, and immigration while adopting measures that exacerbated them. Abroad, he coddled adversaries and alienated allies. The notion that ordinary Americans are inveterate racists because they rejected the third term for Obama governance that Hillary Clinton represented exhibits the elites’ own bigotry.

A considerably more illuminating explanation of Trump’s victory comes from understanding the power of populism. The 2016 election returns reflected a revolt of the less well-off and less influential against political elites whom they regard as arrogant and self-serving.

Can government bureaucrats vitiate private property rights without a jury trial and fair compensation? That’s the question the Supreme Court will consider on Monday in what could become a landmark patent case, Oil States Energy v. Greene’s Energy.

At issue is the inter partes review that Congress established with the 2011 America Invents Act to curb abusive patent litigation. Owners of low-quality patents—e.g., abstract ideas or processes with broad applicability—extort businesses with infringement lawsuits that are often cheaper to settle than fight. This can deter innovation. Inter partes review allows anyone to challenge a patent at any time. The Patent Trial and Appeal Board, composed of administrative judges appointed by the Commerce Secretary, then decides whether to grant a review and perhaps revoke a patent.

Oil States lost an inter partes review challenge after suing Greene Energy for infringement. The company then claimed that inter partes review violates the Constitution’s Article III and the Seventh Amendment because it allows an administrative agency to revoke patents without a jury trial. Article III sets the qualifications for the federal judiciary—that is, judges are appointed by the President with the consent of the Senate. They also have lifetime tenure. The Seventh Amendment guarantees a jury trial in suits involving common law such as private property, contracts and trademarks.

Congress has increasingly ceded authority to administrative bodies over disputes involving public rights—those between the government and individuals that don’t have a basis in common law. But private rights are strictly the domain of the federal judiciary. This distinction is crucial since Article III judges are intentionally insulated from politics and the two political branches.

American politics has been largely free of military influence since George Washington defused an incipient army mutiny at Newburgh, New York, in 1783. There have been relapses, including George McClellan’s presidential maneuverings before the 1864 election, and the insubordination of the politically ambitious Douglas MacArthur in 1951. But military deference to America’s elected civilian leadership has been so consistent for so long that even faint political activism by high-ranking officers stands out. Recently, a three-star Air Force general nudged up to, if not across, that thin line—taking to YouTube to accuse the institution, its cadets, and its staff of racism.

Academy Superintendent Lieutenant General Jay Silveria stirred the Internet in September when—not to mix military metaphors—he ordered the institution’s 4,900 cadets and staff to shape up or ship out following the discovery on campus of racist graffiti. “If you demean someone in any way, you need to get out,” Silveria said in a speech that quickly scored more than 1 million YouTube hits. “If you can’t treat someone from another race, or different color skin, with dignity and respect, then you need to get out.”

It was a textbook social-justice-movement moment—judgment first, facts afterward—insofar as Silveria had no clue who had scrawled the slur, no apparent interest in finding out, and no hesitation in spreading responsibility for it as widely as possible. And when the “hate crime” turned out to have been a hoax—the perp was a black student enrolled in an academy-preparatory program and one of five alleged “targets” of the slur—that didn’t slow down the academy’s virtue-signaling. “By embracing our differences, we help create a culture of respect and dignity,” said the academy’s director of culture, climate and diversity, Yvonne Roland. “As an institution of higher education and a military installation, we prepare our cadets to meet the challenges of an ever-changing global environment and to value ethics and human dignity.” Whatever that means.

“From the Berlin Wall, to Vietnamese and Cuban boat people, to the DMZ, the prisoners of communism run in only one direction: toward liberty and self-government, toward the bounty of the marketplace and the possibilities of representative democracy.”

On November 13, a 24-year-old North Korean soldier, known only by his surname Oh, commandeered a jeep and sped toward the De-Militarized Zone that for 64 years has separated his communist homeland from the democratic capitalist south.

As he approached the border, the young man abandoned the vehicle and scrambled on foot toward the line of control. North Korean soldiers began firing on him. He was hit five or six times before collapsing onto South Korean ground. Transported to a hospital in Suwon, near Seoul, doctors performed emergency surgery. They discovered and extracted parasitic worms from his small intestine. Diagnosed with tuberculosis and hepatitis B, he is nonetheless expected to recover.

Oh risked everything to live in freedom. He has joined the ranks of other defectors, refugees, and exiles that fled oppression for the chance of a life free of tyrannical control. From the Berlin Wall, to Vietnamese and Cuban boat people, to the DMZ, the prisoners of communism run in only one direction: toward liberty and self-government, toward the bounty of the marketplace and the possibilities of representative democracy.

Many did not—many do not—make it. They die imprisoned, like the Chinese dissident Liu Xiaobo, or do not survive the crossing, like Peter Fletcher, murdered by the Border Troops of the German Democratic Republic at the age of 18.

And there are millions more still who, having been born and raised in democratic capitalist societies, do not fully recognize or appreciate the novelty and blessing of their lives. The story of Oh is not only a reminder that the call of freedom persists. It is a rebuke to those who ignore freedom’s song.

For it has become fashionable, on both left and right, to downplay or ignore or deprecate the idea of freedom, to blame individualism, self-determination, and choice for inequality, pollution, corruption, immorality, decline, and other tragic aspects of the human condition. The fact that all of these pathologies flourish in autocratic, socialist, and communist societies as well as in our own seemingly escapes the notice of the intellectual critics of freedom.

Even so, we are told that free will is a delusion, that we are better off being “nudged” by our cognitive and moral superiors, that freedom and democracy are like rubber bands that snap back when stretched to the limit. “We are drowning in freedom,” says one editor. Tell that to Oh.

Left-wing currency manipulator George Soros’s push to radically reshape the judiciary and elect extremist district attorneys across the country to weaken law enforcement and protect lawless sanctuary cities is bearing fruit.

Soros has been pouring money into local elections because he supports local efforts to resist U.S. Immigration and Customs Enforcement (ICE) and wants to cripple police in order to advance the neo-Marxist abstraction known as social justice that simplistically breaks the world down into race, class, and sex or gender. Radicals claim that American laws and institutions are inherently corrupt and that these systems protect, for example, wealthy, white, native-born, non-disabled males at the expense of everyone else.

Soros wants prosecutors to empty prisons and coddle the prisoners who remain, scale back drug prosecutions, lower bail, and eliminate alleged racial disparities in sentencing, among other things.

Getting people who share Soros’s worldview into public office at every level is key to promoting his ugly vision of how America, which he calls “the main obstacle to a stable and just world order,” should look.

Soros’s backing helped elect radical leftist Lawrence (Larry) Krasner (D) as Philadelphia DA this month. Krasner, who quipped that his track record as a civil rights lawyer made him “completely unelectable,” somehow managed to best seven other candidates in the primary election.

“Krasner, who has represented Occupy Philadelphia and Black Lives Matter, and has sued the police department more than 75 times, had a major fundraising advantage that was provided almost exclusively by Soros,” the indispensable Joe Schoffstall reported at the Washington Free Beacon.

On the campaign trail, Krasner promised never to seek the death penalty in any criminal case and to keep Philadelphia a lawless sanctuary city. A segment of his platform titled “Resist the Trump Administration” spelled out his plan to “protect immigrants,” “reject the drug war,” and “stand up to police misconduct.”

“As District Attorney, he will work to maintain Philadelphia as a ‘sanctuary city’ and protect the Fourth Amendment rights of all residents, cooperating with federal authorities only to the degree required by law,” according to his campaign website.

“Because legal proceedings can affect the status of immigrants and therefore relations between communities and law enforcement, Larry will take those effects into account when making prosecutorial decisions and setting prosecutorial policy. He will oppose renewal of ICE’s access to the PARS database, a city police database used by ICE to identify ‘deportable’ immigrants.”

In April, Soros gave $1.45 million to the Philadelphia Justice and Public Safety PAC, which was created to support Krasner and listed its address as the Democrat law firm Perkins Coie in the nation’s capital. Soros threw another $214,000 the super PAC’s way in May, bringing his pro-Krasner donations to $1.7 million, “an unusual[ly] high [amount] for the average district attorney race.” It was also the first time a PAC had ever backed a candidate for Philly DA.

Unsealed bank records appear to reinforce the claim that Democrat Hillary Clinton’s campaign bought and paid for the sensational “piss-gate” dossier that used anonymous sources to smear President Trump by falsely linking him to Russia.

The dossier is the salacious, 35-page report commissioned by Democrat-aligned opposition research firm Fusion GPS. The statements in the partisan hit job were compiled by former British spy Christopher Steele and published by BuzzFeed. One claim was that Donald Trump hired prostitutes to urinate on a bed.

The dossier was just one of many particularly outrageous dirty tricks Clinton’s campaign to undercut her opponent’s campaign during the 2016 election cycle. Clinton also personally authorized the illicit efforts of socialist felon Bob Creamer and organizer Scott Foval who fomented violence at Trump campaign rallies, as James O’Keefe’s Project Veritas group revealed in undercover videos.

President Trump and his defenders have repeatedly suggested Democrats, Russia, or the FBI – or all three – may have helped fund the infamous document dump.

What’s new here are bank records from two Democrat-aligned law firms listing 112 transactions involving Fusion GPS. Clinton campaign and DNC lawyer Marc Elias reportedly hired Fusion GPS in April 2016 to conduct opposition research against Trump.

The documents were made public after Washington, D.C.-based federal Judge Richard Leon, who is presiding over a lawsuit related to Fusion’s records, ordered them unsealed. Fusion fought the unsealing request.

As the Daily Caller reports:

Perkins Coie, the law firm that represented the Clinton campaign and DNC, paid Fusion a total of $1,024,408 between May 24, 2016 and Dec. 28, 2016, the records show.

The largest payment was made just before the election. Perkins Coie made a $365,275 payment to Fusion GPS on Oct. 28, 2016, according to the records.

ObamaCare has caused hard-to-quantify economic damage, but some of the law’s regulations may be lethal—literally. Consider a Medicare hospital payment initiative, which a new study in the Journal of the American Medical Association Cardiology suggests may have contributed to an increase in deaths.

Readers are likely familiar with ObamaCare’s mandate and subsidies to impel individuals to obtain health insurance. But the law also included monetary incentives and penalties aimed at inducing changes in health-care delivery and spending reductions. The government rolled out these payment models nationally without careful study, and they are having unintended side effects.

A case in point is the Hospital Readmissions Reduction Program, which penalizes hospitals with above-average readmissions for Medicare patients. Readmissions are expensive, and the goal of the penalties is to encourage providers to take measures that reduce repeat hospitalizations—for instance, providing patients with clearer discharge instructions and coordinating with primary-care physicians.

Hospitals are graded on a curve and dunned if their 30-day readmission rate exceeds the national average. Hospitals can thus be penalized even if they reduce readmissions. The penalties, which are assessed as a share of hospitals’ Medicare payments, have been applied to an increasing number of medical conditions including knee and hip replacements.

Liberals have touted data showing that readmissions have fallen since the penalties took effect in 2013, but the JAMA researchers examined whether quality of care has improved as a result. Their observational study examined 115,245 fee-for-service Medicare beneficiaries hospitalized with heart failure across the U.S. in the four years prior to and first two years following implementation of the program.

Researchers found that the 30-day readmission rate (adjusted for patient risk) declined to 18.4% from 20% after the penalties were introduced. Yet the 30-day mortality rate increased to 8.6% from 7.2%—about 5,400 additional deaths per year. Over a one-year period the readmission rate fell by 0.9 percentage points while the mortality rate rose by five. In other words, while fewer patients were being readmitted, many more were dying.

The researchers hypothesize that the penalties might “incentivize hospitals to ‘game’ the system, using strategies such as delaying admissions beyond day 30, increasing observation stays, or shifting inpatient-type care to emergency departments.” These tricks may end up hurting patients.

Hospitals with above-average readmissions are also more likely to care for low-income patients and deal with complicated medical cases. They are usually financially strapped due to low Medicaid reimbursements, and the ObamaCare penalties may make it even harder to deliver quality care.

ObamaCare effectively enrolled Medicare patients and hospitals without their consent in a mandatory policy experiment—you’ll be better off, trust us—but then neglected to evaluate the adverse effects. A drug trial with the same results would have been shut down long ago.

The JAMA researchers conclude that, “like drugs and devices, public health policies should be tested in a rigorous fashion—most preferably in randomized trials—before their widespread adoption.” Sounds like good advice, but not the sort that ObamaCare architects and masters of the economic-planning universe like Peter Orszag and Jonathan Gruber are inclined to take.

The Trump Administration is seeking to redesign some of ObamaCare’s payment programs, including making policy experiments voluntary for providers. This has caused a fury among those on the left who believe that government coercion is the cure for all health-care maladies. Testing incentives on a small scale could prevent untold economic harm and deaths.

They are:Betty McCollum (MN) Mark Pocan (WI), Earl Blumenauer (OR), André Carson (IN), John Conyers, Jr. (MI), Danny K. Davis (IL), Peter A. DeFazio (OR), Raul Grijalva, Luis V. Gutiérrez (AZ), and Chellie Pingree (Maine)
Now ten members of the “progressive caucus” of the Democratic Party are trying to give these terrorist leaders another reason for using even younger terrorists to kill even more innocent civilians.

The bill fails to acknowledge that some of the most barbaric terrorist attacks against Jewish Israelis have been committed by Palestinian teens who have been recruited by terrorist leaders.

Israel has a right — according to international law — to protect its citizens from constant terror attacks, even those committed by young Palestinians. Indeed, it has an obligation to do so.

Palestinian terrorist leaders often use teenagers to commit acts of terror because they know that the Israeli legal system treats child terrorists more leniently than adult terrorists. Now ten members of the “progressive caucus” of the Democratic Party are trying to give these terrorist leaders another reason for using even younger terrorists to kill even more innocent civilians.

On November 14, Representative Betty McCollum introduced legislation c co-sponsored by nine other “progressive” members of Congress — calling on the State Department to “prevent United States tax dollars from supporting the Israeli military’s ongoing detention and mistreatment of Palestinian children.” In a statement about the proposed legislation McCollum said:

“This legislation highlights Israel’s system of military detention of Palestinian children and ensures that no American assistance to Israel supports human rights violations…Peace can only be achieved by respecting human rights, especially the rights of children. Congress must not turn a blind eye the unjust and ongoing mistreatment of Palestinian children living under Israeli occupation.”

It is well established that recruiting and using young Palestinians to wage terror on Israeli civilians is part of the modus operandi of Palestinian terrorist leaders. For decades, members of the radical Palestinian political and religious leadership have been stirring up young people to wage war against the Jews and their nation state. This was seen in the gruesome Intifada that began in 2000, in which Palestinian teenagers committed dozens of attacks against Jewish Israelis on buses, in cafes and at nightclubs. More recently—in what has become known as the ‘lone-wolf’ intifada — children as young as 13 have stabbed Israelis with scissors, screwdrivers and knives with the aim of inflicting maximum harm.

‘And thus the whirligig of time brings in his revenges.” Who could suppress at least a smirk of pleasure at the news of Senator Al Franken’s being caught up in the sexual-harassment scandals that have been breaking ever since Harvey Weinstein crashed the world? The fact that Franken’s molestation was caught on camera — that there is a picture that can accompany every single news story and Twitter meme for years to come — makes it even better. All that is now needed for instant Internet gratification is to take that photo of Franken mugging as he grabs the breasts of his sleeping co-star and stick it alongside a screen-grab of any of his earlier denunciations of poor sexual etiquette.

Because Franken is a high-handed moralizer of the Left, some Republicans and conservatives are happy to run with this, condemning Franken for it and another incident in which he attempted to kiss his co-star. There are even calls for an Ethics Committee investigation into the Minnesota senator.

Yet conservatives, like everyone else, should pause before playing this game. As with other cases in which enemies of the Right have been floored by this flood — a journalist from Vice and much of Hollywood spring to mind — we should be careful about embedding the new etiquette that such campaigns push us toward.

Of course the Left have been at it for years. We all know of people who think that rape is not rape if it is committed by a leftist, whereas even mild flirting is rape when it is committed by a conservative. We all know people who didn’t want to condemn Bill Clinton’s relationship with an intern who are now willing to talk eagerly about a “serial abuser” in the Oval Office. All of us can list plenty of examples of this. And we all know why they do it, too: because they want to win, and they are willing to seize any opportunity to get closer to that goal.

But conservatives should be careful about joining this. Every time the definition of rape, abuse, or molestation is brought down another notch and this new low-water mark is agreed on across the political spectrum, the prospect for a different type of harm increases. If we agree for short-term political pleasure that Franken is guilty of serious sexual molestation for an unfunny photograph taken years ago and for a sloppy and unwanted pass at a woman, then two things are certain to happen.

The first is that the difference between bad manners and rape will become blurred yet further. We live in an era when already a knee-touch can cause resignations. Are we sure that unwanted advances must now always be deemed a resigning matter? It was the late British Conservative MP Alan Clark who once, when taken to task for making allegedly unwanted approaches toward women, replied, “How do I know they’re unwanted until I make them?” Of course Senator Franken is a married man, and plenty of us may agree to look down on a married man who does such a thing. But are we absolutely certain that we want to make it into something that requires an ethics investigation and total career destruction?