When his country needed him, cowardly Mark Meadows let Jan. 6 happen
The editorial noted Meadow's behavior on January 6 and how his lack of action may have contributed to the events of that day.
Tuesday, June 28, 2022
There's a headline you don't see everyday.
Aide testifies Trump tried to strangle Secret Service agent in attempt to reach Capitol on Jan. 6
Fox News on the testimony of Cassidy Hutchinson regarding Donald Trump and the January 6, 2021 Insurrection.
"Devastating".
Note that, Fox News.
"Devastating".
National Public Radio on Trump following his January 6, 2021 speech.
Update 2:21 p.m. ET:
In the car after the speech: The president was under the impression that he would be taken to the Capitol following his rally speech, Hutchinson said.
When he learned there were no security assets and Trump would have to return to the White House, Trump grew "irate" and attempted to grab the steering wheel of the car, she testified. Hutchinson was not in the car, but heard it from others with no one correcting the record, she said.
" 'I am the effing president, take me up to the Capitol now,' " Hutchinson testified that the president said.
Trump talked about walking to the Capitol, where he might give a speech or enter the House chamber. And when staff stopped those plans, Trump attempted to grab the steering wheel of the presidential limousine to drive there, she said.
What does New York Rifle & Pistol Association v. Bruen really do?
Not as much as you might believe from listening to the news.
The opinion is here: New York Rifle & Pistol Association v. Bruen.
What it does is to hold that New York's 1911 vintage Sullivan Act, which required proof of need in order to get a carry permit for personal protection, violated the 14th Amendment by deciding that some people's "need" was more significant than others, and that this violated the 2nd Amendment as well.
It didn't hold that the government can't restrict where firearms go, and that was specifically noted.
Indeed, an irony of the opinion is that it also doesn't say that the government can't require licensing, and New York may in turn respond by making licensing in general more rigid.
This means, in effect, the opinion has a certain "stay tuned" aspect to it. It's really relatively limited in its impact.
Contempt for the Constituton and Democracy.
Those now filing lawsuits, or indicating that they'll ignore the Dobbs ruling overturning Roe v. Wade, or simply being vulgar in their criticism of the Supreme Court due to it, are part and parcel with the Trumpites declaring the election was stolen.
There's no difference.
Both groups show a contempt for the Constitution and strongly anti-democratic views when their own pet causes fail.
Indeed, I've maintained that the trip to January 6, 2021, started with the Supreme Court handing down Roe v. Wade and Obergefel made it inevitable. In both instances, the court acted extra judicially and showed contempt for the Constitution itself. The American political left, post Roe, came to believe it could force the United States to become what it wanted it to become, and where the people would not go on their own, and were amazingly successful in doing so. That contempt for democracy spawned an antidemocratic reaction that felt it was entitled to view the left as enemies of the Republic, as they wished to be anti-republican.
And here we are, now living in a much liberalized nation that the political left forced us to become, but with two warring camps that both have contempt for the rule of law, the Constitution, and democracy.
Make no mistake, every screaming protester, every vapid entertainer, every politician, and every pundit decrying Dobbs, which simply returns the issue to the states, and actually isn't a really conservative opinion at all, confirms to those on the hard right that they're engaged in a true struggle outside of the courts and voting booth, as clearly their left wing opponents, for all their expressed concern for the rule of law and democracy, don't really mean it.
Sunday, June 28, 1942. Fall Blau.
The Germans commenced Fall Blau (Case Blue), their 1942 summer offensive in southern the Soviet Union. The objective was to take the Baku oilfields. It would run into November.
Burning Soviet KV-1 heavy tank. By Bundesarchiv, Bild 101I-216-0412-07 / Klintzsch / CC-BY-SA 3.0, CC BY-SA 3.0 de, https://commons.wikimedia.org/w/index.php?curid=5410409
The offensive took considerable ground and can be regarded as a military success. Indeed, so much so that it made the Germans overconfident in their abilities. One of their offensive failures in the battle was to fail to cross the Volga and surround Stalingrad, choosing instead simply to enter it.
The offensive repeated the German tendency to commence offensives on Sundays.
The Australians raided Salamaua in New Guinea without loss of life. The well planned raid was the first Australian commando raid of the war.
For civilian populations in the US and Canada, such as my then young parents, one can only imagine how this must have looked. The Japanese had recently struck two coastal installations in the Pacific with submarine bombardments, the British were on the retreat in North Africa, and the Germans were once again advancing in the Soviet Union.
Wednesday, June 28, 1922. The start of the Irish Civil War.
The Irish Civil War is regarded as having commenced on this day in 1922 with an artillery strike on the Four Courts in Dublin.
Four Courts burning.
The Irish Republican Army had occupied the Four Courts since April 14, hoping to spark a conflict with the British. The Irish government ignored until British demands that it be addressed made that impossible. The Irish Free State borrowed two artillery pieces and 200 shells from the British and first demanded that the IRA remove itself from the building, which they refused to do.
What exactly occurred remains unclear. It's not certain who have the order to commence the bombardment. Some IRA survivors maintained they were actually getting ready to surrender when it commenced. Some suggest that British artillerymen in small numbers were provided with the guns, but if so, there's no definitive proof of that.
The event would spark the commencement of the Irish Civil War between the Irish Free State and the Irish Republican Army, which would last about a year.
The Syrian Federation, under the French mandate, came into existence.
Flag of the French mandate in Syria.
Monday, June 27, 2022
Saturday, June 27, 1942 The White Rose.
Weiße Rose, or in English White Rose, began distributing its anti-Nazi pamphlets in Munich.
Comprised principally, but not exclusively of students, it was heavily inspired by Catholic thought, although not all of its members were Catholic.
Winston Churchill arrived back in the United Kingdom and a joint statement was issued on the results of the recent Washington Conference.
It was another day of much German submarine activity, but it also saw the USS Nautilus sink a Japanese minesweeper just 60 miles sought of Tokyo Bay.
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USS Nautilus.
Obfuscation watch. Tweaking the English language so what you say isn't quite true.
I've been meaning to start a thread like this for some time, but given recent events, massive obfuscation is really in evidence in debates and news.
Indeed, here's one area where the news media does the public a genuine disservice. Right wing critics of the press complain that it's biased, and in terms of the language they adopt, which tends to come right from liberal speak, they have a point.
This will be one of those trailing threads, so it will no doubt grow over time.
This is not, I'll note, intended to have a right/left theme to it. It's just noting what ought to be noted. The older terms here, which people grew uncomfortable with, were honest ones. The newer ones are intended to cloud the issue.
June 27, 2022
Some in the news or recently in the news starters.
Reproductive Rights: This just means abortion. When the press or an advocate speaks of "women's reproductive rights", what they mean is a woman having the legal option to kill her fetus. That's all they mean.
This has, we'd note, replaced being "Choice" as the word of the hour, that meaning the same thing.
The term "abortion" has never gone away, and based on the last week's news, people on both sides know what these issues mean in this sense, so the use of the less clear term is really pointless.
Gun Safety: This means gun control, and nothing else. The word was changed as gun control is widely unpopular, but everyone is keen on safety.
Whether a person is for gun control or not, just say it. There's no reason to suggest that anyone is really lead to some other point when discussing the issue by calling it "gun safety".
Undocumented Immigrant: This means illegal alien. The term illegal alien was used for decades, but that points out the fact that immigration without approval of the receiving nation is illegal, which those who are basically in favor of an open border, or uncomfortable with enforcing the nation's immigration laws, don't like to point out. Being "undocumented" suggest that you just have to get some papers in order, which is incorrect.
Constitutional lawyer: This seems to come up in describing lawyers with boutique practices, law professors who want to comment on the Constitution, or news people with law degrees.
There's no such thing as a "Constitutional lawyer". All lawyers make use of the Constituion, and frankly lawyers who practice criminal law do so the most.
Sunday, June 26, 2022
What the Gun Debate and the Abortion Debate really have in common. . .
is overwrought extreme examples being presented as the norm.
If you listen to abortion proponents, every single abortion in the United States is an example of a 13-year-old who is the victim of incest and who will die for certain if the pregnancy progresses.
If you listen to the gun debate, the Battle of Stalingrad is about to bust out in your neighborhood.
Neither of these are even ballpark close to true.
Most abortions in this country are post conception birth control infanticides. And that's because for the most part responsibility has flown out the window with the Sexual Revolution, which at the end of the day was mostly about men being able to have sex without consequences. That altered women back to chattel status, which they bought into, and still are, feeling they have to put out upon demand, as its natural and weird, they believe, not to, and there are no consequences.
You've never seen a pregnant centerfold now, have you. And those girls on the cover of Cosmo. . . stick thin.
And in spite of a recent, probably pandemic induced uptick in crime, this is the least violent era, and most crime free era, in American history.
Friday, June 26, 1942. Beginnings.
Today was the first flight for the Navy workhorse, the F6F.
Larry "The Mole" Taylor, bassist for Canned Heat, was born on this day in Brooklyn, New York.
Monday, June 26, 1922. A British warning.
"Everything is radio on Marconi's yacht - a "personal dance" on board the palatial vessel while on the trip to Albany Showing Josephine Young of Riverside, Conn., and J.W. Elwood of New York, equipped with a portable radio outfit dancing to the tunes of a broadcasted fox trot while making the trip to Albany on Senator Guglielmo Marconi's yacht Elettra." June 26, 1922.
Secretary of State for the Colonies Winston Church warned the Irish government that if it did not act to oust rebels in the Four Courts, the British would. This in a speech before parliament.
Not to mention, downright stupid.
Lex Anteinternet: My goodness, a lot of Supreme Court news coverage ...
My goodness, a lot of Supreme Court news coverage is just downright ignorant.
Some more comments.
1. No, the recent Second Amendment decision and the abortion decision are not inconsistent.
Yes, the abortion decision means states will have to vote on what they'll restrict by way of baby killing, and yes the same states are restricted in what they can ban in terms of firearms carrying.
One is in the constitution, the other is not. D'uh.
2. No, the Wyoming ban doesn't offend a State constitution provision precluding a person from their own healthcare choices. Abortion isn't health care, and everybody actually knows that. Save for some rarer arguments, which are carved out in the Wyoming law, it's a form of post conception after the fact birth control by stopping the birth by killing the infant. This we also all know.
3. No, the abortion issue isn't going to help the Democrats in the 2022 or 2024 election. It'll help the Republicans.
Wavering Republicans who can't stand the Trump wing are being pushed right back in by being reminded in a major way what the culture wars are about, particularly by boneheaded suggestions from people like AoC that the Federal government open abortion clinics on Federal lands.
Saturday, June 25, 2022
This is why we can't have nice things.
Ugh.
Calling to "neutralize" the purchase by disposing of Federal lands elsewhere.
Why can't Wyoming's representation in Congress representing Wyomingites on these issues? Most approve of the Federal land, and this is good for Wyoming in general, and Natrona County in particular.
I guess if we must "neutralize" Federal influence in the state, we could end Federal highway funds coming in, close the Railroad Transportation Safety Board, and shut down the FAA. . . oh wait. . .
As people seem to fail to grasp it. . .
the United States Supreme Court's in depth and richly historical opinion in Dobbs v. Jackson Health Clinic, overruling the inept Roe v. Wade decision;
- Does not make anything illegal, but returns the issue to the states.
- This means that people are supposed to address this issue democratically.
- Women are the majority of voters everywhere, and in states that propose to outlaw abortion, that's what the majority of polled women want.
Some additional observations.
- Roe was doomed from the start, as it never made any sense. The justices writing it made up the results out of thin air and seemed to presume that science had reached a permanent pinnacle in 1973.
- If people want to be mad at a court, be mad at that one.
- The "they're going to reverse everything" cry is misplaced. That comes from Justice Thomas' dissent, which is based on his view that "substantive due process" isn't a real thing. That is his view, but it's only really his view. His suggestion that the court should review all substantive due process cases held for the last 60 years isn't going to happen (even though at least one of the cases he mentions that was handed down in the last ten years should definitely be revisited).
One final note. Much of the on the streets, "we're shocked" protests is simply pure liberal theater, and nothing else. Most of the protesters have never read Roe, and most of them will move on to the next left wing cause de jour.
Roe' stank, as Constitutional law, for fifty years. It was time for it to go to the dumpster.
Oh, and on Dobbs, well a person can always read it for themselves.
Most won't, however.
Friday, June 24, 2022
Courthouses of the West: 2022 United States Supreme Court Watch
Courthouses of the West: 2022 United States Supreme Court Watch: June 24, 2022
The Court overruled Roe v. Wade in Dobbs v. Jackson Women's Health Clinic.
The decision was, quite frankly, way overdue.
Saturday, June 23, 1972. "I Am Woman" hits the Billboard top 100.
Helen Reddy, on this date in 1972, had her song that became sort of a feminist anthem for the period, "I Am Woman" enter the Billboard top 100.
Reddy was an Australian who had a popular television show that commenced the following year. I recall my parents watching and enjoying it. She died in 2020 at age 78.
Wednesday June 24, 1942. Eisenhower takes command.
Dwight D. Eisenhower arrived in London to assume command of the European Theater of Operations United States of America, replacing James E. Chaney.
In fact, Eisenhower had only recently returned to the United States on a fact finding mission, along with Hap Arnold, on the United Kingdom in which he expressed a lack of confidence in Chaney. He was assigned to replace Chaney and sent right back to the UK.
Chaney would fade into obscurity. Having been promoted to Major General in 1940, he was an observer of the Battle of Britain and would return to become commanding general of the First Air Force, and then become a training officer in the United States. Late in the war he was in command of Army forces for the mostly Navy action at Iwo Jima, and he had a senior role in the Western Base Command at the end of the war. He retired in 1947. He, as well as his wife, died in 1967.
The Afrika Korps entered Egypt.
Saturday, June 23, 1922. Portents.
The Saturday Evening Post hit the stands with an enduringly popular Leyendecker illustration.
Judge, which had recently combined with Leslie's, made fun of the cost of a dinner date.
Walther Rathenau, German Foreign Minster, was assassinated by right wing German nationalist. Germany's march towards Nazism was commencing.
On the same day Hitler began serving his prison sentence.
The American Professional Football Association voted to change its name to the National Football League.
The English Ladies Football Association hold its only championship.
Japan announced it would withdraw its occupation forces from Siberia, save for Sakhalin Island, by the end of October.
Courthouses of the West: 2022 United States Supreme Court Watch
Courthouses of the West: 2022 United States Supreme Court Watch:
2022 United States Supreme Court Watch
This June/July promises to be one in which a whole boatload of major rulings are set to be handed down.
Given that, while we've never had a trailing thread of any kind here before, we're going to track a few of the bigger ones this year.
June 23, 2022
The first of the claims that will be big and controversial.
In 6-3 ruling, court strikes down New York’s concealed-carry law
Here's the text:
New York State Rifle & Pistol Association v. Bruen.
Note, this opinion, combined with the descent, is of epic length.
I haven't reviewed this fully, but apparently what it holds is that a state can't require a party wishing to carry concealed, or just to carry, to prove a particular need to do so.
Thursday, June 23, 2022
Friday, June 23, 1972. Title IX
On this day in 1972 President Nixon signed Title IX. Its operative language stated:
No person in the United States shall, based on sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
While broader than just athletics, it's come to be particularly associated with the expansion of women's sports in schools and universities.
On the same day, H. R. Haldeman and President Nixon discussed Haldeman's wish for Nixon to instruct the FBI to get out of the Watergate burglary investigation. Nixon agreed with the suggestion.
Hurricane Agnes made landfall, impacting New York, Pennsylvania, Maryland, Virginia and Florida, resulting in 118 deaths.
Tuesday, June 23, 1942. Married men exempted from the draft.
US soldier in training, June 1942.
Sarah Sundin reports on her blog:
Today in World War II History—June 23, 1942: RAF captures first German Focke-Wulf Fw 190 fighter plane, which lands by mistake in Wales. President Roosevelt signs bill deferring married men from the draft.
The FW 190 was a great aircraft, the best German fighter of the war, if you discount the ME262 jet fighter, which I think you can.
The married men draft deferment removed 18,000,000 men from the draft pool and was designed to intentionally use up the pool of eligible single men first. The exemption would not last, although it did last for a while. In April 1943 married men were once again eligible, but could be exempted if their conscription imposed an "extreme hardship" on their wives or children.
This exemption would be reinstated at some point during the Vietnam War, leading to some rushed marriages in order to avoid conscription. I'm not really sure what I think about it, frankly. It was probably more defensible during the Second World War during which men remained the sole "bread winners" for many families and couples. Indeed, while women did of course work during the war, the scale at which women overall worked is exaggerated in the popular recollection of the war.
Hitler authorized the Afrika Korps to pursue the 8th Army towards Egypt.
Friday, June 23, 1922. Confederate Veterans visit the White House, Chinese Prime Minister Wu Tingfang dies, A forgotten tragedy.
On this day in 1922, a group of Confederate veterans visited the White House.
An annual reunion was ongoing in Richmond, and this event was likely associated with it.
Chinese Prime Minister Wu Tingfang, in office for mere days, and part of an effort to consolidate the reunification of China, died of pneumonia.
A forgotten tragedy was reported on in Casper.
He was apparently keeping time with other women, maybe. She was upset, but wanted to reconcile, and then, the note stated, didn't want to live alone.
Pending in Congress is a bill, S 2992. . .
which is the subject of a television ad in which a portly late middle-aged gentleman, representing himself to be a rancher, comes on and is besides himself about how the bill is being considered. He urges people to contact their "conservative" senators to vote against it, as its going to aid China.
Ag bill?
Here's the actual bill, with striked text included.
S. 2992
To provide that certain discriminatory conduct by covered platforms shall be unlawful, and for other purposes.
IN THE SENATE OF THE UNITED STATESOctober 18, 2021Ms. Klobuchar (for herself, Mr. Grassley, Mr. Durbin, Mr. Graham, Mr. Blumenthal, Mr. Kennedy, Mr. Booker, Ms. Lummis, Ms. Hirono, Mr. Warner, Mr. Hawley, and Mr. Daines) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
March 2, 2022Reported by Mr. Durbin, with an amendment
[Strike out all after the enacting clause and insert the part printed in italic]
A BILLTo provide that certain discriminatory conduct by covered platforms shall be unlawful, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
(a) Violation.—It shall be unlawful for a person operating a covered platform, in or affecting commerce, if it is shown, by a preponderance of the evidence, that the person has engaged in conduct that would—
(1) unfairly preference the covered platform operator’s own products, services, or lines of business over those of another business user on the covered platform in a manner that would materially harm competition on the covered platform;
(2) unfairly limit the ability of another business user’s products, services, or lines of business to compete on the covered platform relative to the covered platform operator’s own products, services, or lines of business in a manner that would materially harm competition on the covered platform; or
(3) discriminate in the application or enforcement of the covered platform’s terms of service among similarly situated business users in a manner that may materially harm competition on the covered platform.
(b) Unlawful Conduct.—It shall be unlawful for a person operating a covered platform, in or affecting commerce, if it is shown, by a preponderance of the evidence, that the person has engaged in conduct that would—
(1) materially restrict or impede the capacity of a business user to access or interoperate with the same platform, operating system, hardware or software features that are available to the covered platform operator’s own products, services, or lines of business that compete or would compete with products or services offered by business users on the covered platform;
(2) condition access to the covered platform or preferred status or placement on the covered platform on the purchase or use of other products or services offered by the covered platform operator that are not part of or intrinsic to the covered platform itself;
(3) use non-public data that are obtained from or generated on the covered platform by the activities of a business user or by the interaction of a covered platform user with the products or services of a business user to offer, or support the offering of, the covered platform operator’s own products or services that compete or would compete with products or services offered by business users on the covered platform;
(4) materially restrict or impede a business user from accessing data generated on the covered platform by the activities of the business user, or through an interaction of a covered platform user with the business user’s products or services, such as by establishing contractual or technical restrictions that prevent the portability of the business user's data by the business user to other systems or applications;
(5) unless necessary for the security or functioning of the covered platform, materially restrict or impede covered platform users from un-installing software applications that have been preinstalled on the covered platform or changing default settings that direct or steer covered platform users to products or services offered by the covered platform operator;
(6) in connection with any covered platform user interface, including search or ranking functionality offered by the covered platform, treat the covered platform operator’s own products, services, or lines of business more favorably relative to those of another business user than they would be treated under standards mandating the neutral, fair, and non-discriminatory treatment of all business users; or
(7) retaliate against any business user or covered platform user that raises concerns with any law enforcement authority about actual or potential violations of State or Federal law.
(c) Rule Of Construction.—Subsections (a) and (b) shall not be construed to require a covered platform operator to divulge, license, or otherwise grant the use of the covered platform operator’s intellectual property, trade or business secrets, or other confidential proprietary business processes to a business user.
(1) IN GENERAL.—Subsection (a) shall not apply if the defendant establishes by a preponderance of the evidence that the conduct described in subsections (a) was narrowly tailored, was nonpretextual, and was necessary to—
(A) prevent a violation of, or comply with, Federal or State law;
(B) protect safety, user privacy, the security of non-public data, or the security of the covered platform; or
(C) maintain or enhance the core functionality of the covered platform.
(2) UNLAWFUL CONDUCT.—Subsection (b) shall not apply if the defendant establishes by a preponderance of the evidence that the conduct described in subsection (b)—
(A) has not resulted in and would not result in material harm to the competitive process by restricting or impeding legitimate activity by business users; or
(B) was narrowly tailored, could not be achieved through less discriminatory means, was nonpretextual, and was necessary to—
(i) prevent a violation of, or comply with, Federal or State law;
(ii) protect safety, user privacy, the security of non-public data, or the security of the covered platform; or
(iii) maintain or enhance the core functionality of the covered platform.
(e) Covered Platform Designation.—The Federal Trade Commission and Department of Justice may jointly, with concurrence of the other, designate a covered platform for the purpose of implementing and enforcing this Act. Such designation shall—
(1) be based on a finding that the criteria set forth in clauses (i) through (iii) of subsection (h)(4) are met;
(2) be issued in writing and published in the Federal Register; and
(3) apply for 7 years from its issuance regardless of whether there is a change in control or ownership over the covered platform unless the Commission or the Department of Justice removes the designation under subsection (f).
(f) Removal Of Covered Platform Designation.—The Commission or the Department of Justice shall—
(1) consider whether its designation of a covered platform under subsection (e) should be removed prior to the expiration of the 7-year period if the covered platform operator files a request with the Commission or the Department of Justice, which shows that the online platform no longer meets the criteria set forth in clauses (i) through (iii) of subsection (h)(4);
(2) determine whether to grant a request submitted under paragraph 1 not later than 120 days after the date of the filing of such request; and
(3) obtain the concurrence of the Commission or the Department of Justice, as appropriate, before granting a request submitted under paragraph (1).
(g) Remedies.—The remedies provided in this subsection are in addition to, and not in lieu of, any other remedy available under Federal or State law.
(1) CIVIL PENALTY.—Any person who is found to have violated subsections (a) or (b) shall be liable to the United States or the Commission for a civil penalty, which shall accrue to the United States Treasury, in an amount not more than 15 percent of the total United States revenue of the person for the period of time the violation occurred.
(2) INJUNCTIONS.—The Assistant Attorney General of the Antitrust Division, the Commission, or the attorney general of any State may seek, and the court may order, relief in equity as necessary to prevent, restrain, or prohibit violations of this Act.
(3) REPEAT OFFENDERS.—If the fact finder determines that a person has engaged in a pattern or practice of violating this Act, the court shall consider requiring, and may order, that the Chief Executive Officer, and any other corporate officer as appropriate to deter violations of this Act, forfeit to the United States Treasury any compensation received by that person during the 12 months preceding or following the filing of a complaint for an alleged violation of this Act.
(h) Definitions.—In this section:
(1) ANTITRUST LAWS.—The term “antitrust laws” has the meaning given the term in subsection (a) of section 1 of the Clayton Act (15 U.S.C. 12).
(2) BUSINESS USER.—The term “Business User” means a person that utilizes or is likely to utilize the covered platform for the sale or provision of products or services, including such persons that are operating a covered platform or are controlled by a covered platform operator.
(3) COMMISSION.—The term “Commission” means the Federal Trade Commission.
(4) COVERED PLATFORM.—The term “covered platform” means an online platform—
(A) that has been designated as a covered platform under section 2(e); or
(i) at any point during the 12 months preceding a designation under section 2(e) or at any point during the 12 months preceding the filing of a complaint for an alleged violation of this Act—
(I) has at least 50,000,000 United States-based monthly active users on the online platform; or
(II) has at least 100,000 United States-based monthly active business users on the online platform;
(ii) at any point during the 2 years preceding a designation under section 2(e) or at any point during the 2 years preceding the filing of a complaint for an alleged violation of this Act, is owned or controlled by a person with United States net annual sales or a market capitalization greater than $550,000,000,000, adjusted for inflation on the basis of the Consumer Price Index; and
(iii) is a critical trading partner for the sale or provision of any product or service offered on or directly related to the online platform.
(5) CRITICAL TRADING PARTNER.—The term “critical trading partner” means a person that has the ability to restrict or materially impede the access of—
(A) a business user to its users or customers; or
(B) a business user to a tool or service that it needs to effectively serve its users or customers.
(6) PERSON.—The term “person” has the meaning given the term in subsection (a) of section 1 of the Clayton Act (15 U.S.C. 12).
(A) IN GENERAL.—Not later than 6 months after the date of enactment of this Act, the Commission shall adopt rules in accordance with section 553 of title 5, United States Code, to define the term “data” for the purpose of implementing and enforcing this Act.
(B) DATA.—The term “data” shall include information that is collected by or provided to a covered platform or business user that is linked, or reasonably linkable, to a specific—
(i) user or customer of the covered platform; or
(ii) user or customer of a business user.
(8) ONLINE PLATFORM.—The term “online platform” means a website, online or mobile application, operating system, digital assistant, or online service that—
(A) enables a user to generate content that can be viewed by other users on the platform or to interact with other content on the platform;
(B) facilitates the offering, sale, purchase, payment, or shipping of products or services, including software applications, between and among consumers or businesses not controlled by the platform operator; or
(C) enables user searches or queries that access or display a large volume of information.
(9) CONTROL.—The term “control” with respect to a person means—
(A) holding 25 percent or more of the stock of the person;
(B) having the right to 25 percent or more of the profits of the person;
(C) having the right to 25 percent or more of the assets of the person, in the event of the person’s dissolution;
(D) if the person is a corporation, having the power to designate 25 percent or more of the directors of the person;
(E) if the person is a trust, having the power to designate 25 percent or more of the trustees; or
(F) otherwise exercises substantial control over the person.
(10) STATE.—The term “State” means a State, the District of Columbia, the Commonwealth of Puerto Rico, and any other territory or possession of the United States.
(1) IN GENERAL.—Except as otherwise provided in this Act—
(A) the Commission shall enforce this Act in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a part of this Act;
(B) the Attorney General shall enforce this Act in the same manner, by the same means, and with the same jurisdiction, powers and duties as though all applicable terms of the Sherman Act (15 U.S.C. 1 et seq.), Clayton Act (15 U.S.C. 12 et seq.), and Antitrust Civil Process Act (15 U.S.C. 1311 et seq.) were incorporated into and made a part of this Act; and
(C) any attorney general of a State shall enforce this Act in the same manner, by the same means, and with the same jurisdiction, powers and duties as though all applicable terms of the Sherman Act (15 U.S.C. 1 et seq.) and the Clayton Act (15 U.S.C. 12 et seq.) were incorporated into and made a part of this Act.
(2) UNFAIR METHODS OF COMPETITION.—A violation of this Act shall also constitute an unfair method of competition under section 5 of the Federal Trade Commission Act (15 U.S.C. 45).
(3) COMMISSION INDEPENDENT LITIGATION AUTHORITY.—If the Commission has reason to believe that a person violated this Act, the Commission may commence a civil action, in its own name by any of its attorneys designated by it for such purpose, to recover a civil penalty and seek other appropriate relief in a district court of the United States.
(4) PARENS PATRIAE.—Any attorney general of a State may bring a civil action in the name of such State for a violation of this Act as parens patriae on behalf of natural persons residing in such State, in any district court of the United States having jurisdiction of the defendant, and may secure any form of relief provided for in this section.
(1) IN GENERAL.—The Commission, Assistant Attorney General of the Antitrust Division, or any attorney general of a State may seek a temporary injunction requiring the covered platform operator to take or stop taking any action for not more than 120 days and the court may grant such relief if the Commission, the United States, or the attorney general of a State proves—
(A) there is a claim that a covered platform operator took an action that would violate this Act; and
(B) that action impairs the ability of business users to compete with the covered platform operator.
(2) EMERGENCY RELIEF.—The emergency relief shall not last more than 120 days from the filing of the complaint.
(3) TERMINATION.—The court shall terminate the emergency relief at any time that the covered platform operator proves that the Commission, the United States, or the attorney general of the State seeking relief under this section has not taken reasonable steps to investigate whether a violation has occurred.
(4) OTHER EQUITABLE RELIEF.—Nothing in this subsection prevents or limits the Commission, the United States, or any attorney general of any State from seeking other equitable relief as provided in subsection (g) of this section.
(a) In General.—Any party that is subject to a covered platform designation under section 2(e) of this Act, a decision in response to a request to remove a covered platform designation under section 2(f) of this Act, a final order issued in any district court of the United States under this Act, or a final order of the Commission issued in an administrative adjudicative proceeding under this Act may within 30 days of the issuance of such designation, decision, or order, petition for review of such designation, decision, or order in the United States Court of Appeals for the District of Columbia Circuit.
(b) Treatment Of Findings.—In a proceeding for judicial review of a covered platform designation under section 2(e) of this Act, a decision in response to a request to remove a covered platform designation under section 2(f) of this Act, or a final order of the Commission issued in an administrative adjudicative proceeding under this Act, the findings of the Commission or the Assistant Attorney General as to the facts, if supported by evidence, shall be conclusive.
SEC. 4. ENFORCEMENT GUIDELINES.
(a) In General.—Not later than 1 year after the date of enactment of this Act, the Commission and the Assistant Attorney General of the Antitrust Division shall jointly issue guidelines outlining policies and practices, relating to agency enforcement of this Act, including policies for determining the appropriate amount of a civil penalty to be sought under section 2(g)(1) of this Act, with the goal of promoting transparency, deterring violations, and imposing sanctions proportionate to the gravity of individual violations.
(b) Updates.—The Commission and the Assistant Attorney General of the Antitrust Division shall update the joint guidelines issued under subsection (a), as needed to reflect current agency policies and practices, but not less frequently than once every 4 years beginning on the date of enactment of this Act.
(a) Notwithstanding any other provision of law, whether user conduct would constitute a violation of section 1030 of title 18 of the United States Code is not dispositive of whether the defendant has established an affirmative defense under this Act.
(b) An action taken by a covered platform operator that is reasonably tailored to protect the rights of third parties under sections 106, 1101, 1201, or 1401 of title 17 of the United States Code or rights actionable under sections 32 or 43 of the Lanham Act (15 U.S.C. 1114, 1125), or corollary state law, shall not be considered unlawful conduct under subsection 2(a) or (b) of this Act.
(c) Nothing in this Act shall be construed to limit any authority of the Attorney General or the Commission under the antitrust laws, the Federal Trade Commission Act (15 U.S.C. 45), or any other provision of law or to limit the application of any law.
If any provision of this Act, an amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional, the remainder of this Act and of the amendments made by this Act, and the application of the remaining provisions of this Act and amendments to any person or circumstance shall not be affected.
This Act may be cited as the “American Innovation and Choice Online Act”.
(a) In General.—In this Act:
(1) ANTITRUST LAWS; PERSON.—The terms “antitrust laws” and “person” have the meanings given the terms in subsection (a) of the first section of the Clayton Act (15 U.S.C. 12).
(2) BUSINESS USER.—The term “business user”—
(4) CONTROL.—The term “control” means, with respect to a person—
(C) in the event of the dissolution of the person, having the right to 25 percent or more of the assets of the person;
(5) COVERED PLATFORM.—The term “covered platform” means an online platform that—
(B) is owned or controlled by a person that—
(ii) (I) at any point during the 12 months preceding a designation under section 3(d) or the 12 months preceding the filing of a complaint for an alleged violation of this Act has at least—
(II) during—
(aa) the 2 years preceding a designation under section 3(d), or the 2 years preceding the filing of a complaint for an alleged violation of this Act—
(AA)at any point, is owned or controlled by a person with United States net annual sales of greater than $550,000,000,000, adjusted for inflation on the basis of the Consumer Price Index; or
(BB) during any 180-day period during the 2-year period, an average market capitalization greater than $550,000,000,000, adjusted for inflation on the basis of the Consumer Price Index or
(C) is owned or controlled by a person that—
(ii) (I) at any point during the 12 months preceding a designation under section 3(d), or the 12 months preceding the filing of a complaint for an alleged violation of this Act has at least—
(II) at any point—
(aa) during the 2 years preceding a designation under section 3(d), or the 2 years preceding the filing of a complaint for an alleged violation of this Act, is owned or controlled by a person with earnings, before interest, taxes, depreciation, and amortization, in the previous fiscal year of greater than $30,000,000,000, adjusted for inflation on the basis of the Consumer Price Index; or
(6) CRITICAL TRADING PARTNER.—The term “critical trading partner” means a person that has the ability to restrict or materially impede the access of—
(7) DATA.—The term “data” includes information that is collected by or provided to a covered platform or business user that is linked, or reasonably linkable, to a specific—
(8)FOREIGN ADVERSARY.—The term “foreign adversary” has the meaning given the term in section 8(c) of the Secure and Trusted Communications Networks Act of 2019 (47 U.S.C. 1607(c)).
(9)ONLINE PLATFORM.—The term “online platform” means a website, online or mobile application, operating system, digital assistant, or online service that—
(A) enables a user to generate content that can be viewed by other users on the platform or to interact with other content on the platform;
(b) Regulations.—Not later than 180 days after the date of enactment of this Act, the Commission shall promulgate regulations in accordance with section 553 of title 5, United States Code, to define the term data for the purpose of implementing and enforcing this Act.
(a) In General.—It shall be unlawful for a person operating a covered platform in or affecting commerce to engage in conduct, as demonstrated by a preponderance of the evidence, that would—
(1) preference the products, services, or lines of business of the covered platform operator over those of another business user on the covered platform in a manner that would materially harm competition;
(2) limit the ability of the products, services, or lines of business of another business user to compete on the covered platform relative to the products, services, or lines of business of the covered platform operator in a manner that would materially harm competition;
(3) discriminate in the application or enforcement of the terms of service of the covered platform among similarly situated business users in a manner that would materially harm competition;
(4) materially restrict, impede, or unreasonably delay the capacity of a business user to access or interoperate with the same platform, operating system, or hardware or software features that are available to the products, services, or lines of business of the covered platform operator that compete or would compete with products or services offered by business users on the covered platform;
(5) condition access to the covered platform or preferred status or placement on the covered platform on the purchase or use of other products or services offered by the covered platform operator that are not part of or intrinsic to the covered platform;
(6) use nonpublic data that are obtained from or generated on the covered platform by the activities of a business user or by the interaction of a covered platform user with the products or services of a business user to offer, or support the offering of, the products or services of the covered platform operator that compete or would compete with products or services offered by business users on the covered platform;
(7) materially restrict or impede a business user from accessing data generated on the covered platform by the activities of the business user, or through an interaction of a covered platform user with the products or services of the business user, such as by establishing contractual or technical restrictions that prevent the portability by the business user to other systems or applications of the data of the business user;
(8) materially restrict or impede covered platform users from uninstalling software applications that have been preinstalled on the covered platform or changing default settings that direct or steer covered platform users to products or services offered by the covered platform operator, unless necessary—
(9) in connection with any covered platform user interface, including search or ranking functionality offered by the covered platform, treat the products, services, or lines of business of the covered platform operator more favorably relative to those of another business user than under standards mandating the neutral, fair, and nondiscriminatory treatment of all business users; or
(b) Affirmative Defenses.—
(1) IN GENERAL.—It shall be an affirmative defense to an action under paragraph (1), (2), or (3) of subsection (a) if the defendant establishes by a preponderance of the evidence that the conduct was narrowly tailored, nonpretextual, and reasonably necessary to—
(2) OTHER UNLAWFUL CONDUCT.—It shall be an affirmative defense to an action under paragraph (4), (5), (6), (7), (8), (9), or (10) of subsection (a) if the defendant establishes by a preponderance of the evidence that the conduct—
(c) Enforcement.—
(1) IN GENERAL.—Except as otherwise provided in this Act—
(A) the Commission shall enforce this Act in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a part of this Act;
(B) the Attorney General shall enforce this Act in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms of the Sherman Act (15 U.S.C. 1 et seq.), Clayton Act (15 U.S.C. 12 et seq.), and Antitrust Civil Process Act (15 U.S.C. 1311 et seq.) were incorporated into and made a part of this Act; and
(C) any attorney general of a State shall enforce this Act in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms of the Sherman Act (15 U.S.C. 1 et seq.) and the Clayton Act (15 U.S.C. 12 et seq.) were incorporated into and made a part of this Act.
(2) COMMISSION INDEPENDENT LITIGATION AUTHORITY.—If the Commission has reason to believe that a person violated this Act, the Commission may commence a civil action, in its own name by any of its attorneys designated by it for such purpose, to recover a civil penalty and seek other appropriate relief in a district court of the United States.
(3) PARENS PATRIAE.—Any attorney general of a State may bring a civil action in the name of such State for a violation of this Act as parens patriae on behalf of natural persons residing in such State, in any district court of the United States having jurisdiction of the defendant for any form of relief provided for in this section.
(4) ENFORCEMENT IN FEDERAL DISTRICT COURT.—The Commission, Attorney General, or any attorney general of a State shall only be able to enforce this Act through a civil action brought before a district court of the United States.
(5) REMEDIES.—
(A) IN GENERAL.—The remedies provided in this paragraph are in addition to, and not in lieu of, any other remedy available under Federal or State law.
(B) CIVIL PENALTY.—Any person who violates this Act shall be liable to the United States or the Commission for a civil penalty, which shall accrue to the United States Treasury, in an amount not greater than 15 percent of the total United States revenue of the person for the period of time the violation occurred.
(C) INJUNCTIONS.—
(i) IN GENERAL.—The Assistant Attorney General in charge of the Antitrust Division, the Commission, or the attorney general of any State may seek, and the court may order, relief in equity as necessary to prevent, restrain, or prohibit violations of this Act.
(ii) TEMPORARY INJUNCTIONS.—
(I) IN GENERAL.—The Commission, Assistant Attorney General in charge of the Antitrust Division, or any attorney general of a State may seek a temporary injunction requiring the covered platform operator to take or stop taking any action for not more than 120 days.
(II) GRANT.—The court may grant a temporary injunction under this clause if the Commission, the United States, or the attorney general of a State, as applicable, proves—
(aa) there is a plausible claim, supported by evidence, that a covered platform operator took an action that would violate this Act;
(III) DURATION.—A temporary injunction under this clause shall expire not later than the date that is 120 days after the date on which a complaint under this subsection is filed.
(IV) TERMINATION.—The court shall terminate a temporary injunction under this clause if the covered platform operator proves that—
(D) FORFEITURE FOR REPEAT OFFENDERS.—If a person has engaged in a pattern or practice of violating this Act, the court shall consider requiring, and may order, that the chief executive officer, and any other corporate officer as appropriate to deter violations of this Act, forfeit to the United States Treasury any compensation received by that person during the 12 months preceding or following the filing of a complaint for an alleged violation of this Act.
(6) STATUTE OF LIMITATIONS.—A proceeding for a violation of this section may be commenced not later than 6 years after such violation occurs.
(7) RULES OF CONSTRUCTION.—
(A) IN GENERAL.—Nothing in subsection (a) may be construed—
(i) to require a covered platform operator to divulge or license any intellectual property, including any trade secrets, business secrets, or other confidential proprietary business processes, owned by or licensed to the covered platform operator;
(ii) to prevent a covered platform operator from asserting its preexisting rights under intellectual property law to prevent the unauthorized use of any intellectual property owned by or duly licensed to the covered platform operator;
(iii) to require a covered platform operator to interoperate or share data with persons or business users that are on any list maintained by the Federal Government by which entities—
(iv) to prohibit a covered platform operator from promptly requesting and obtaining the consent of a covered platform user prior to providing access to the nonpublic, personally identifiable information of the user to a covered platform user under that subsection;
(v) in a manner that would likely result in data on the covered platform or data from another business user being transferred to the Government of the People's Republic of China or the government of another foreign adversary; or
(B) COPYRIGHT AND TRADEMARK VIOLATIONS.—An action taken by a covered platform operator that is reasonably tailored to protect the rights of third parties under section 106, 1101, 1201, or 1401 of title 17, United States Code, or rights actionable under section 32 or 43 of the Act entitled “An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes”, approved July 5, 1946 (commonly known as the “Lanham Act” or the “Trademark Act of 1946”) (15 U.S.C. 1114, 1125), or corollary State law, shall not be considered unlawful conduct under subsection (a).
(d) Covered Platform Designation.—
(1) IN GENERAL.—The Commission and Department of Justice may jointly, with concurrence of the other, designate an online platform as a covered platform for the purpose of implementing and enforcing this Act, which shall—
(2) REMOVAL OF COVERED PLATFORM DESIGNATION.—The Commission or the Department of Justice shall—
(A) consider whether a designation of a covered platform under paragraph (1) should be removed prior to the expiration of the 7-year period if the covered platform operator files a request with the Commission or the Department of Justice that shows that the online platform no longer meets the criteria set forth in subparagraphs (B) and (C);
(3) JUDICIAL REVIEW.—
(A) IN GENERAL.—Any person aggrieved by a designation under paragraph (1), a decision in response to a request under paragraph (2), or a final order issued in any district court of the United States under this Act may, within 30 days of the issuance of such designation, decision, or order, petition for review of such designation, decision, or order in the United States Court of Appeals for the District of Columbia Circuit.
SEC. 4. ENFORCEMENT GUIDELINES.
(a) In General.—Not later than 270 days after the date of enactment of this Act, the Commission and the Assistant Attorney General in charge of the Antitrust Division, in consultation with other relevant Federal agencies and State attorneys general, shall jointly issue agency enforcement guidelines outlining policies and practices relating to conduct that may materially harm competition under section 3(a), agency interpretations of the affirmative defenses under section 3(b), and policies for determining the appropriate amount of a civil penalty to be sought under section 3(c), with the goal of promoting transparency, deterring violations, fostering innovation and procompetitive conduct, and imposing sanctions proportionate to the gravity of individual violations.
(b) Updates.—The Commission and the Assistant Attorney General in charge of the Antitrust Division shall update the joint guidelines issued under subsection (a) as needed to reflect current agency policies and practices, but not less frequently than once every 4 years beginning on the date of enactment of this Act.
(c) Public Notice And Comment.—Before issuing guidelines, or updates to those guidelines, under this section, the Commission and the Assistant Attorney General in charge of the Antitrust Division shall—
Nothing in this Act may be construed to limit—
(1) any authority of the Attorney General or the Commission under the antitrust laws, section 5 of the Federal Trade Commission Act (15 U.S.C. 45), or any other provision of law; or
If any provision of this Act, or the application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of this Act, and the application of the remaining provisions of this Act, to any person or circumstance, shall not be affected.
(a) In General.—Except as provided in subsection (b), this Act shall take effect on the date of enactment of this Act.
What does this have to do with agriculture?
Not a freaking thing.
And having an entire ad about how horrible a bill is, without saying what it actually does, is chickenshit.
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