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NBA Doesn't Want to Be 'Taking Tests Away From Citizens Who Need It,' Says Dallas Owner Mark Cuban
Over half of the NBA franchises have returned to training and the season is expected to resume at some point in late July.
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There’s No Historical Justification for One of the Most Dangerous Ideas in American Law
Most government activity in the United States rests on a simple idea: that it’s okay for the legislature to authorize the executive branch to regulate basically anything the legislature itself could reach—working conditions, pollution, elections, financial products, mask wearing, you name it. That idea is now under attack. Relying on a so-called nondelegation doctrine, conservative originalists insist that the Founders never intended for government to work this way. They call for courts to strike down any laws that delegate too much power—and much of the federal bureaucracy along with them.Their argument is grounded in a cursory, selective review of the historical record; it simply falls apart under any kind of serious scrutiny. Americans in 1789 didn’t share the view that broad delegations of legislative power violated the Constitution. Indeed, they would have been baffled by the claim, because governments throughout the Anglo-American world had long relied on this very technique without controversy. There wasn’t any nondelegation doctrine at the founding, and the question isn’t close.To understand why this matters, and just how wrong these critics are, start with the practicalities. Legislative delegations pervade just about every area of policy: air quality, drug testing, business regulation, health care, education, and so on. Legislatures have neither the bandwidth nor the expertise to write every detail of complex government programs, least of all when those programs need to adapt nimbly to technological changes, economic disruptions, and new information about the world.So instead, Congress instructs the Environmental Protection Agency to set pollution standards that are “requisite to protect the public health,” the Federal Communications Commission to regulate the airwaves “in the public interest,” and the Justice Department to classify a drug as a controlled substance where “necessary to avoid an imminent hazard to the public safety.” Indeed, the current pandemic finds both the president and many governors turning to even broader legislative delegations for the legal authority to require people to stay home, to shut down businesses, to restrict international travel, and to push companies to ramp up production of medical equipment.[Jane Chong: How to actually use the Defense Production Act]The delegation of regulatory power to federal agencies is thus the indispensable foundation of modern American governance. And it is under siege. Over the past year, a resurgent conservative majority on the Supreme Court has signaled that it is poised to breathe life into the “nondelegation doctrine.” A largely forgotten relic of the Supreme Court’s embarrassing (and quickly abandoned) resistance to the New Deal, the nondelegation doctrine would allow courts to strike down laws that, in their view, give the executive branch too much power with too little guidance.The threat to responsible government is hard to overstate. If open-ended delegations are unconstitutional, Justice Elena Kagan observed, “then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.”What’s the justification for adopting a doctrine that would threaten the very foundation of the modern American state? For Justice Neil Gorsuch, who appears to be leading the charge to reinvigorate the doctrine, the answer comes down to originalism. “The framers understood,” Gorsuch claimed in a 2019 dissent, “that it would frustrate the system of government ordained by the Constitution if Congress could merely announce vague aspirations and then assign others the responsibility of adopting legislation to realize its goals.”For years, progressive lawyers have mostly reacted to such arguments by rolling their eyes. Surely there’s too much water under the bridge for the country to go back to 1789. And it does seem awfully convenient that the Founders supposedly believed in a doctrine that aligns so neatly with the Republican Party’s desire to bring the administrative state to heel.Such skepticism about the very legitimacy of originalism, however, has meant that the historical accuracy of originalist claims about nondelegation doctrine has gone largely unchallenged—until now. In a new paper, we demonstrate that there was no such thing as a nondelegation doctrine at the founding.To see why, keep in mind that originalists want to discern the “original public meaning” of the Constitution. That can’t be a secret or hidden meaning. It must be the meaning that the public—and in particular, the delegates to the state ratifying conventions—would have assigned to the Constitution’s spare text. For originalists, the burden of proof is high: to justify a judicial assault on laws adopted by Congress and signed by the President, the historical evidence should be nothing short of bulletproof.[Adrian Vermeule: Beyond originalism]Right out of the gate, nondelegation advocates run up against the embarrassing fact that the actual text of the Constitution doesn’t say anything about restricting delegations. Originalists brush that problem aside, however, by pointing to Article I of the Constitution, which assigns “all legislative powers herein granted” to Congress. They insist that the founding generation would have understood this assignment to implicitly forbid Congress from further delegating any part of that power to federal agencies.As their primary justification for this nontextual conclusion, originalists like Justice Gorsuch look to the English political theorist John Locke. In his “Second Treatise of Government”—written a century before the U.S. Constitution was ratified—Locke wrote that “the legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others.”Originalists, however, have misunderstood the passage. When Locke spoke of transferring the power to make laws, he wasn’t worrying about burgeoning bureaucracy; his target was a far more fundamental debate about the very right to rule England. No less eminent an authority than Sir Francis Bacon had argued that “it is in the power of a Parliament to extinguish or transferre their owne authority” entirely: “If the Parliament should enact … that there should bee no more Parliaments held, but that the King should have the authority of the Parliament; this were good in law.”Locke vehemently disagreed. For him, the permanent alienation of legislative powers—the “transfer” of “the power of making laws”—was anathema to the principle of popular self-determination. So if Locke’s views are taken as the final word, maybe the Constitution should be understood to prohibit Congress from closing up shop and making the president a permanent monarch. Indeed, a few contemporary theorists suggested as much. But that’s worlds apart from saying that it’s unconstitutional to delegate power when Congress remains on the scene to supervise, check, and withdraw that power.Indeed, the Founders would have been baffled by originalists’ claim that legislative power cannot be delegated. It was delegated all the time. Parliament regularly delegated legislative authority to ministers and corporations, and state legislatures in the Americas did the same. More striking still, the states delegated some of their legislative powers to a national legislature under the Articles of Confederation. (As Alexander Hamilton explained, “If the [New York] constitution forbids the grant of legislative power to the union,” then the powers granted under the Articles of Confederation “are illegal and unconstitutional, and ought to be resumed.” But they weren’t, because it didn’t.)[Jeffrey Rosen: Hamilton would not have stood for Trump’s new constitutional theory]Early Congresses followed suit. Though they often issued instructions in painstaking detail, they also delegated in sweeping terms. These delegations were neither ancillary nor of secondary importance. They were vital to the establishment of a new country—to shore up its finances, regulate its industry, govern its territories, secure its revenue, and guard against internal and external threats.Here are a few examples, all drawn from the First Congress, which sat from 1789 to 1791:Congress readopted the Northwest Ordinance, which gave to the appointed governor of the Northwest Territory and three federal judges the power to issue the territory’s entire civil and criminal code “as may be necessary and best suited to the circumstances of the district,” with no other guidance whatsoever. To foster industrial innovation, Congress adopted a patent law giving the secretary of state, the secretary of war, and the attorney general the power to grant patents to new inventions whenever they “deem the invention or discovery sufficiently useful or important.” Congress forbade trade or intercourse with American Indian tribes without a license—and required all licensees to be “governed … by such rules and regulations as the President shall prescribe.” All of these laws, and others we discuss in the paper, empowered executive officials to adopt rules governing private conduct without meaningful guidance from Congress. And yet, in the nearly 2,000 pages of recorded debate from the First Congress, none spurred a nondelegation objection. If there was a nondelegation doctrine of any stripe—let alone a broadly shared and uncontroversial understanding—it’s inconceivable that no one would have mentioned it.Originalists dismiss or disregard all of this. But remember—if they’re arguing that courts should strike down federal statutes, it’s their burden to show that the Founders broadly shared a deeply embedded understanding that broad delegations were impermissible. Beyond the reference to Locke, what evidence do they have?Originalists sometimes point to a debate in the Second Congress, when James Madison objected to a proposal that would have given the president authority to establish new post roads. “There did not appear,” he said, “to be any necessity for alienating the powers of the house—and that if this should take place, it would be a violation of the Constitution.”If you read the whole debate, however, it’s clear that Congress didn’t buy it. As one of Madison’s opponents said, Congress was “also empowered to coin money, and if no part of their power be delegable, he did not know but they might be obliged to turn coiners, and work in the Mint themselves. Nay, they must even act the part of executioners, in punishing piracies committed on the high seas.”More to the point, the law that Congress adopted allowed the postmaster general to “designate” additional roads that “shall … be deemed and considered as post roads.” Far from demonstrating the force of Madison’s constitutional objection, the statute as enacted expressly conferred the authority that Madison had claimed was unconstitutional![Michael Gerhardt: Madison’s nightmare has come to America]And this is originalists’ best evidence from the founding era. In tens of thousands of pages of the ratification debates, and in tens of thousands of pages of early congressional debate, during a time when politicians blithely advanced even kooky constitutional arguments at the drop of a hat, originalists have nothingbetter than Madison’s idiosyncratic and ultimately abandoned objection to postal delegations. If the Founders really did believe in the nondelegation doctrine now espoused by Justice Gorsuch, there ought to be significantly more material. At a minimum, you would expect opportunistic politicians to have invoked the principle regularly across a broad range of statutes to which some version of it could easily have applied. Yet the historical record is very near to silent.The nondelegation doctrine didn’t exist at the founding. It’s a fable that originalists tell themselves about how enlightened people must have thought about the Constitution. For those suspicious of agency authority and centralized government, it makes for a comforting story. But it’s just not true.
The Secret Lives of Teenage Sidekicks
When you think of the quintessential high-school movie, who is the star? Is it Alicia Silverstone’s Cher Horowitz, with her lustrous blond hair and Valley Girl aphorisms, from Clueless? Or maybe a bit further back, any one of Molly Ringwald’s characters from Sixteen Candles, Pretty in Pink, or The Breakfast Club? Perhaps your mind goes to one of the Stratford sisters from 10 Things I Hate About You, the ultra-popular socialite Bianca or her curmudgeonly older sister, Kat.The leads of classic American coming-of-age films tend to have at least one thing in common: Beyond their youthful ennui, most of them are white, well-off, and surrounded by people who look a lot like them. These characters’ troubles aren’t necessarily trivial—high school is, after all, a petri dish of anxieties for everyone. But these films consistently focused on teens from a narrow demographic; when their peers of color were included, they were usually relegated to sidekick status. If you revisit the likes of American Pie, Lizzie McGuire, and My So-Called Life, you’ll remember the black best friend or the Asian neighbor or the Latino love interest who added some color—literally and figuratively—but mattered little to the plot. Often sycophants or bullies, these one-note characters usually existed to teach the protagonist some kind of lesson.A few recent productions, however, seem to imagine what it’d be like if these girls were freed from the orbit of their white friends. Mindy Kaling’s new TV series, Never Have I Ever, and the film The Half of It (both on Netflix), as well as the movie Selah and the Spades (on Amazon), give would-be sidekicks the star treatment. In each, a teenage girl of color navigates the drama of adolescence in a way that feels messy and real. Unlike their predecessors—think of Lane from Gilmore Girls or Angela from Boy Meets World—they don’t have to meet an impossible standard of acceptable behavior, nor are they treated as villains simply for participating in the rituals of high-school life. They don’t earn straight A’s, manage a suite of extracurriculars, or charm everyone around them. They do drugs, start fights, sneak around behind their parents’ backs, and fantasize about their crushes—all without being defined by those antics. That freedom to fumble their way through their teen years is what makes these girls such vibrant and necessary additions to the coming-of-age canon.Perhaps no recent character epitomizes the petulance and mundanity of teenage rebellion better than Never Have I Ever’s Devi Vishwakumar (played by Maitreyi Ramakrishnan). A first-generation Indian American girl whose story is inspired by Kaling’s own childhood, Devi spends most of the show being a real brat, in part to evade the grief from her father’s recent death. She’s selfish, rude, and obsessed with boys and popularity to the exclusion of nearly everything else. Devi’s best friends, the robotics nerd Fabiola Torres (Lee Rodriguez) and the fledgling thespian Eleanor Wong (Ramona Young), consistently express frustration with her behavior—so, too, does Devi’s mother, Nalini (Poorna Jagannathan).The push and pull between their hopes for her and Devi’s more shallow exploits is a relatable struggle, one that can plague young people regardless of their background. Kaling also infuses Devi’s specific dilemmas with plenty of diasporic drama, raising the usual stakes: It’s hard enough to deal with your own changing body, but grappling with that relationship when you’ve got a supermodel-gorgeous cousin from back home staying with you so she can get a college degree? That’s adolescent purgatory, the likes of which would make Lizzie McGuire flee back to Rome.Never Have I Ever has its faults. The series traffics in unexamined Islamophobic sentiment, introduces a black female character only to serve as Devi’s emotional support, and punches up the fake Indian accents of Devi’s relatives to caricature-like effect. These are disappointing turns, no matter how endearing the show can be. Fortunately, Devi is a compelling lead: Though the character often alienates the people around her, Ramakrishnan plays her with a magnetic warmth, balancing a surplus of angst with an undeniable charisma.Ramakrishnan shines in some of the show’s weightiest scenes, too. When Devi finally acknowledges the pain she still carries after losing her dad, her catharsis is palpable. Coming-of-age stories have long featured scenes where a protagonist comes to terms with the trauma that’s been holding them back—but rarely have Indian and Indian American characters’ internal conflicts been given such close attention. Devi and her mother deal with their grief differently, in part because of their divergent relationships to Hinduism. Where Nalini heeds the gods’ blessings, as Siri Chilukuri recently wrote for Teen Vogue, Devi’s “journey through the myriad emotions that follow the death of one’s father closely mirrored my own—and … the experiences of so many other young Indian Americans who know death too well.”While some of their conflicts are rooted in trite views of immigrant parents, Devi and her mother ultimately move through their mourning together. Devi’s friends grow, too; they don’t linger in her shadow or exist just to remind her of her shortcomings. Unlike so many teen sidekicks of color, each gets her own emotional arc: Fabiola acknowledges a part of herself she’s long denied, and Eleanor learns to deal with her own major loss.NetflixNever Have I Ever arrived on Netflix a week after another popular and similarly refreshing young-adult release. The Half of It tells the story of a Chinese American teenager named Ellie Chu (Leah Lewis) who agrees to write love letters on behalf of a white American classmate. The film puts a queer spin on the awkward love triangle: A jock named Paul (Daniel Diemer) begs Ellie to write notes under his name to his crush, Aster (Alexxis Lemire)—without realizing that Ellie has a crush on her, too. In a refreshing subversion of an old trope, Ellie and Paul become unlikely platonic friends. Even when it becomes clear that their plan was ill-conceived, Paul and Ellie maintain a friendship that pulses with tenderness and sincerity. Ellie isn’t discarded after Paul runs off with Aster, nor is she relegated to the shadows of their romance. That Ellie receives such warmth—and even tentative affirmation from her crush—despite her own self-doubt is a welcome onscreen rarity.One of the joys of the film from the writer-director Alice Wu is seeing Ellie get to figure out her relationship to her own queerness on a timeline that feels right for her. Even though viewers don’t see what happens after Ellie leaves for college, Wu makes clear that her sense of self will continue to evolve there, and that she’ll meet people who might help her learn more about herself. That attention to the various social forces that shape Ellie extends to her home life, and Wu brings gentle observation to Ellie’s strained but loving connection with her father (Collin Chou). In the cramped apartment they share, Ellie often sees her father watching American TV to continue sharpening his English skills. The sound of his television is like white noise for Ellie; it’s just part of what defines home for the teenager.Contrasted with the many shows and movies in which Asian American characters and young queer people of color stick close to their white friends, distancing themselves from stereotypically strict parents, The Half of It includes Ellie’s father in her growth. While Gilmore Girls’ Lane Kim (Keiko Agena) was one of precious few Asian American supporting characters on TV in the early aughts, her story line ended up being the show’s biggest disappointment. But imagine that a coming-of-age series had been built around her, rather than Rory; what might Lane’s life have become if the series had been about her and her mother? Or if Rory and Lorelai hadn’t been the fictional benchmark against which all mother-daughter relationships were measured? The Half of It doesn’t offer a corrective to past TV and film failures, nor does it wholly reinvent the teen rom-com. Ellie Chu doesn’t need to bring the Lanes of yesteryear into her future with her. All she needs to do is figure out how to navigate her crush.Another film that debuted last month, Selah and the Spades, is a less intimate work, but one that takes on the timeless subject of high-school hierarchies in a way that rivals Mean Girls. The queen-bee lead of Selah rejects the kinds of close ties that shape Ellie and Devi, because she doesn’t think she needs them. Sharp-tongued and suspicious of those around her, Selah isn’t the straight-talking Dionne Davenport to someone else’s carefree Cher Horowitz; she stands on her own. At her predominantly white boarding school, she presides over her “faction,” one of the groups responsible for keeping the students’ social life buzzing, with all the ferocity of Regina George. Selah sheds light on a more miserable dimension of teenagehood: the fear and loneliness it can engender, even in those at the top. (In a recent conversation with my colleague David Sims, the filmmaker Barry Jenkins named the writer-director Tayarisha Poe’s debut feature one of his eight quarantine selections.)Crucially, Selah’s antagonism isn’t positioned as an evil force that a white teen must overcome in order to flourish. It’s just a mechanism by which Selah keeps things the way she wants them. The show’s racial dynamics don’t bother with faux-solidarity between Selah and the other black characters. Her relationship with the school’s headmaster and primary disciplinarian (played by a somewhat distractingly cast Jesse Williams) isn’t one of obvious de facto racial camaraderie. And sometimes the person who presents the greatest risk to Selah’s authority is another black girl attempting to navigate the same hostile environment.Selah’s empire extends further than the domain of any Mean Girls extra—she doesn’t just lead the “Unfriendly Black Hotties,” though all three descriptors may apply to her. Free to roam the entire proverbial cafeteria, rather than being restricted to one table, Selah never rests. The film brings a Machiavellian energy to its depiction of Selah’s escalating insecurity about her own power; unfortunately, it stops short just as it builds the most momentum. Still, Selah’s portrait of a troubled teen girl is bracing in its specificity and in how it revels in her capacity for villainy without turning her into a villain.During one scene, in which Selah’s stern mother (Gina Torres) reminds her daughter that only excellence is accepted in their household, I thought of an exchange from MTV’s Daria that’s stayed with me over the years. Jodie Landon, one of the only black students at her school, tells Daria that the disdain she feels for Lawndale High doesn’t stem just from the lameness of her classmates. “At home, I can say or do whatever feels right,” Jodie laments. “But at school I’m the Queen of the Negroes, the perfect African American teen, the role model for all the other African American teens at Lawndale.” Jodie’s parents instilled in her a drive to succeed, particularly in that setting—one in which white students get to be individuals and rebels but their black classmates can’t.Selah’s familial lessons are more understated. Aside from the one scene at her mother’s kitchen counter, Selah’s home life is largely unaddressed. References to her early childhood carry notes of the “twice as good” aphorism, but not much else. Selah nearly seems to have created herself on campus, which lends the film a sense of focus that doesn’t sacrifice its protagonist’s complexity. The camera follows Selah’s gaze, fostering a kind of intimacy the teenager doesn’t experience with any of her peers. Poe’s film feels almost voyeuristic at times, as though viewers are being invited to read its protagonist’s journal. What we find there often isn’t sanitized, but it’s rich and honest. In the broader history of teenage heroines, Selah, Devi, and Ellie aren’t uniquely conniving, lustful, or brooding. But as the leads of their respective works, they broaden a canon that’s still expanding, all too slowly. They each tell more than one story.
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Macau gambling king Stanley Ho dies aged 98
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