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28 March 21
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Charles Bethea | Two Churches Grapple With the Atlanta Shootings
Charles Bethea, The New Yorker
Bethea writes: "'They might understand that there’s something going on,' Kim said, “but the next step, or the next level — of a national outcry about the lack of real protection against Asian hate — I don’t think they understand that.'"
Members of a Korean Baptist congregation reflected on the persistence of racism. The church where the gunman belonged insisted that he alone was responsible.
arly this past Sunday, Sugarloaf Korean Baptist Church held its regular English-language services, over Zoom. Sugarloaf, which has nearly a thousand congregants, is based in Suwanee, a small city in Gwinnett County, a suburban area northeast of Atlanta. Many members of the church had spent the previous week talking with one another about the horrific shootings in Acworth and Atlanta, in which a twenty-one-year-old white man had killed eight people, including six women of Asian descent. Two of the women, both Korean, lived in nearby Duluth. The shooter, Robert Aaron Long, belonged to Crabapple First Baptist Church, in Milton, about thirty-five minutes away. Long told the police that the locations he had targeted, spas owned or operated by Asian-Americans, represented “a temptation for him that he wanted to eliminate,” according to Captain Jay Baker, a spokesman for the Cherokee County police department. (Baker, who said that Long had been having a “bad day,” and who, it was later discovered, had posted an image of a racist T-shirt on Facebook, was subsequently removed from the case.)
Heading into Sunday services, the word among the Sugarloaf congregation was “unity,” David Shin, a thirty-three-year-old engineer and member of the church, told me. But there was also a shared desire, Shin said, particularly among many of the church’s younger members, to make sure this wasn’t categorized as “just another shooting.” His mother, who came to the U.S. from Korea in 1994 with her husband and two sons, had seemed to regard it that way when he first spoke to her, the day after, he told me. “I don’t know why she hadn’t heard more than that yet,” he said. “Maybe she just wasn’t paying attention. Maybe it’s because the Cherokee County police department said that it wasn’t racially motivated. Maybe, without English, she’s more insulated and siloed.” He sighed. “I’m not exactly sure what the reason was, but I actually ended up not being able to tell her that, because it was too heartbreaking. I didn’t want her to walk around wondering, looking over her shoulders every minute to see if there’s anyone suspicious around her, like I wanted. But I don’t know if I made the right decision. I don’t know if I should call her now.”
Lois Choi, who is twenty-eight and works at a marketing agency, has a leadership position at Sugarloaf; her father is an elder at the church. She told me that she was looking to Sunday’s sermon to find some confirmation of the complicated grief that she and other congregants were feeling. “The anger, the confusion, the fear, the hurt—I would love to hear that everything I’m feeling is valid,” she said. “That, yes, other minorities all across America have been dealing with their own versions of tragedy in very deep ways. But rather than putting a Band-Aid statement that ‘God is sovereign,’—which I one hundred and twenty per cent believe—I want to affirm the validity of the complex emotions that I’m constantly feeling every minute of the day.” Her voice quivered. “There’s hope, too, because I’ve never seen so many people rally around us like this and give us support.”
The service began with a prayer, delivered by a young church member who wore a backward baseball cap and glasses and who looked resolutely into the computer. “We pray for our community, that this moment would be a moment of unity for us, a time or an opportunity for us to speak up and be heard across the nation, God,” he said. “That a group that for a majority of the time is always told to kind of stay silent . . . that we could be more vocal and open.”
Another member played a few hymns on a guitar, and then John Kim, a thirty-five-year-old associate pastor at the church, began his sermon. Earlier in the week, he had said that he was thinking about the generational divide in the church. The church also holds Korean-language services, conducted by a senior pastor, Bong Choi, and attended mostly by older, first-generation congregants. “They might understand that there’s something going on,” Kim said, “but the next step, or the next level—of a national outcry about the lack of real protection against Asian hate—I don’t think they understand that.” At the Korean-language service, Pastor Choi talked about the shared experience of racism toward Asians—and also about the racism among Asians toward other people. He said that racism contradicted the commandment to love your neighbor as yourself, and quoted Joshua 1:9—“Do not be afraid; do not be discouraged, for the Lord your God will be with you wherever you go.”
At the English-language service, Kim began, “For our community and the victims in our community, first and foremost, I want to call us to a higher place.” Light poured in from two windows behind him. He had been speaking with members about repentance and confession. “What kind of hatred and bitterness do we harbor in our own hearts?” he asked. “Even as Asian-Americans, do we ever harbor prejudices and discriminatory feelings towards others? The obvious answer is yes. You know why? Because we’re broken and sinful people.”
Kim talked about the glory of creation and the challenge of being “worthy vessels capable of things such as love and trust and courage and strength and peace.” Eventually, he returned to the shooting. “We mourn the lives that were lost,” he said. “We mourn even the life that was twisted in a way to think that he could take it into his hands. So, Lord, we need to know right now, again, the fullness of your love for us. The depth to which you give us your grace.” Then it was on to Easter picnics and upcoming softball scrimmages. “It’ll be nice to have all of us out there,” a congregant said.
About forty minutes west, five police cars sat outside Crabapple First Baptist Church, which would be holding in-person services later that morning. Earlier in the week, the church had briefly taken down its Web site before replacing it with a statement condemning the “unthinkable and egregious murders,” which it described as “the result of a sinful heart and depraved mind for which Aaron is completely responsible.”
Crabapple is a predominantly white church. It is listed as “friendly” to Founders Ministries, a conservative group within the Southern Baptist Convention that is known, in part, for condemning critical race theory. (One article published on the Founders Web site describes anti-racism as an “anti-Christ ideology that uses racism as a means to fight supposed racism.”) As other Southern Baptist groups have wrestled with the convention’s historical ties to slavery, Founders Ministries has pushed back on criticism of the founders of the Southern Baptist Theological Seminary—the oldest of six seminaries affiliated with the convention—all of whom were slaveowners. (Tom Ascol, the president of Founders Ministries, told the Washington Post that he was not familiar with Crabapple and that it had listed itself on the group’s Web site voluntarily.) On Wednesday, Chul Yoo, an Asian-American pastor who was on the staff of Crabapple First Baptist from 2012 to 2015, wrote a piece for Christianity Today, expressing his frustration with the way the church had been characterized. “As they grieve,” Yoo writes, “Crabapple will be able to carefully consider any blind spots brought to light by this incident, and the rest of us too will have a chance to take a closer look at our own churches, institutions, and hearts.”
I asked John Kim if he thought there was an underlying problem with racism in the Southern Baptist Convention. “Maybe there are in segments,” he said. “It’s not monolithic. But publicly, what I do see is an effort to try to bring that out and expose it and make positive movements in reconciliation.” He told me a story about meeting a young woman from a white congregation in South Carolina who approached him with the look of an anthropologist discovering a new tribe. “ ‘Seriously,’ she said, ‘I’ve never met an Asian person before. Can I shake your hand?’ ” Kim recalled telling her, “O.K., that’s fine.” He went on, “It wasn’t anything rude or discriminatory. She’s just never run into an Asian in her neck of the woods where she lives.”
Later, Kim talked about the tension he and many of his friends feel between the impulse to “speak up or cause a ruckus in the workplace,” or to keep one’s head down, and how this is often understood as a tension between one’s Asianness and one’s Americanness. “Part of the narrative we need to have as Asian people ourselves is, can we be Asian, and still be American,” he said, “or do we have to be American, and then Asian? Which way do we go? Or do we do both?”
Kim told me that he e-mails occasionally with a network of local youth pastors at other Southern Baptist churches with mostly white congregations. “It’s an e-mail chain that goes out once a week,” he said. “I’ll e-mail a few times here and there.” None of the other youth pastors on the list had reached out to him since the shootings, nor had he expected them to, he said, though he hastened to add, “I can’t speak for my senior pastor.”
Outside Crabapple, shortly before its Sunday service began, a church elder named Gary explained that the message of the day would be that “God’s in control” and “that we’re mourning with those who mourn.” Another church elder, Don, said that it would be a “prayer-service kind of approach.” Gary added, “A little different than our normal.” Journalists who wished to come inside were asked to sign a contract stipulating, among other things, that they would not conduct interviews on-site.
A member of the church began the service by saying that all present were “heartbroken for the victims and the families” and that the church had been “grieving over this tragic loss of life all week.” Gary then stepped to the dais with his wife, Linda, who is Asian-American, and who read aloud the names of the victims. Gary asked the congregation to join him in a prayer. His voice cracked. “Lord, we are broken-hearted,” he said. “We mourn for them. The evil of one man has produced these senseless deaths. We pray for justice—both divine justice and earthly justice.”
A pastor named Jerry Dockery then delivered a sermon that leaned heavily on scripture. “Our hearts, indeed, are broken by the hatred and violence perpetrated against any—against any—and all of our fellow human beings,” Dockery said. “We unequivocally condemn violent acts, like the ones that we witnessed unfolding this week.” He did not refer specifically to Asian-Americans, or mention racism. After the service, the church held a disciplinary meeting, then issued a single-sentence statement: “In accordance with the Biblical pattern and our church bylaws, Crabapple First Baptist Church has completed the process of church discipline to remove Robert Aaron Long from membership since we can no longer affirm that he is truly a regenerate believer in Jesus Christ.”
That evening, David Shin told me that he was still struggling with Pastor Kim’s call for introspection and forgiveness. “I don’t know if I’m in a place where I can forgive him yet,” he said of Long. “But I think I am in a place where I can mourn with his family, grieve with his congregation members.” Later, he said, “I think we all know about the emotional response.” He added, “As Christians, we’re always called to be forgiving. I think it can seem weird, to the outsider. But we have a baseline of the same understanding, as Asian-Americans.”
Shin was also thinking about how to tell the kinds of stories that would get people to pay attention to what was happening to his community, he said. Shin hosts a weekly podcast called “I Hope They Hear This,” which focusses on Asian-American stories in the region. The “They” in the title, he told me, “can be thought of as anyone who still sees Asian-Americans as foreign or unfamiliar.” Shortly before the shootings, he recorded an episode of the podcast, titled “I Hope We Stop Asian Hate.” “We anticipated that something would come,” he told me. “And we were, like, ‘Hey, we’ve got to do something about it before something bigger happens.’ Something bigger could still happen.”
The past year, Shin said, had been a kind of awakening for him. In May, he had recorded an episode of the podcast about the murders of George Floyd, in Minnesota, and Ahmaud Arbery, in Georgia. His guest was Pastor Kim. Among the questions they wanted to address was whether the Asian-American church had been adequate in its response to the racist violence perpetrated against Black Americans. Both men were shocked by the racism and police brutality that they had seen on video; they also had misgivings about much of the protesting that had followed. Shin ended up recording several more episodes about racism, including one addressing criticism that he had received about previous episodes. Looking back now, Shin said, “my emotional response has shifted to a much more empathetic mode.” Toward the end of his episode about the rise in anti-Asian hate crimes, he talked about confronting racism directly. Korean culture, he said, is “about the collective, not the individual, so we tend to suppress a lot of ourselves because of that. But, if ever there was a moment we needed to ignore that instinct, it’s now. All of you Asian-Americans out there, let’s make some noise.” He added, “We need to be bold and not afraid to say those things. Because if we can do that in those moments, you never know what other evolved, snowballed form of racism you’re stopping at its roots.”
Lois Choi had told me that a part of her appreciated Pastor Kim’s approach, “the encouragement to look inward at my own prejudices and hateful thoughts,” and noted that he would “always bring it back to the individual: what do you believe and how are you living that out in your daily life.” But she was also thinking beyond herself, she said, more than she had a year earlier. “Our fellow Black brothers and sisters have been suffering with this fear for so much longer,” she told me. “I’m very peace-making,” she said. “I put my head down. I do my work. I let that speak for who I am. But I don’t want to keep my head down anymore.”
Choi had heard about the message at Crabapple and was disheartened. “It’s shocking if the church that the shooter was from didn’t mention prejudice,” she said. “We’re grieving. They should be ones that bring out the hard questions on these issues.” She added, “Let’s be real: we’re Asian-Americans in a predominantly white church.” She became emotional, then apologized. “Sorry, this is triggering something,” she said. “It’s bringing to light some frustrations. It feels like a double standard, the lack of responsibility the shooter’s church is taking with these shootings.” Her husband, she noted, is the son of a senior pastor at a church in Marietta. If a similar crime had been perpetrated by a member of their community, she said, “We would’ve taken full responsibility.” They would have felt shame, she said.
Choi told me that she is the only Asian-American at her company. The company had said that it was concerned about diversity-and-inclusion issues, but didn’t initially make any public statements after the shooting. “My directors reached out to me personally, but, as a company there was no acknowledgment of what happened,” she told me. She contacted her manager to ask why. “I was, like, ‘This is not right.’ Even if you have no inkling or knowledge of anything Asian-American, the fact that it happened in our neighborhood, in Atlanta, shouldn’t you bring that awareness to everyone in the company?” Afterward, the company issued a statement. Choi told me, “I’ve never been one to speak about equality. But after everything that’s just happened so close to home . . . I could easily replace any one of those women with people that I’ve interacted with, that I love, that I cherish so dearly. I think that’s when something clicked. I can’t just be the model minority that people want me to be.”
President Joe Biden. (photo: Andrew Harnik/AP)
The Supreme Court's Coming War With Joe Biden, Explained
Ian Millhiser, Vox
Millhiser writes: "One of Justice Antonin Scalia's final acts was to strike down President Obama's plan to stave off the climate crisis."
The Supreme Court is poised to give itself a veto power over much of the Biden administration’s authority.
ne of Justice Antonin Scalia’s final acts was to strike down President Obama’s plan to stave off the climate crisis.
On February 9, 2016 — the last Tuesday of Scalia’s life — the Supreme Court handed down an unexpected order announcing a stay of the Environmental Protection Agency’s carbon emissions rules for many power plants. The vote was 5-4, along party lines, with Scalia joining his fellow conservatives in the majority.
The environmental regulations blocked by this order were commonly known as the Clean Power Plan, and they were the Obama administration’s most ambitious effort to fight climate change. Had the Clean Power Plan taken effect, the EPA predicted that by 2030 it would have reduced overall carbon dioxide emissions from utility power plants 32 percent from where they were in 2005.
But the Clean Power Plan never took effect. Though the Supreme Court’s order halting the plan was temporary, Donald Trump’s 2016 victory all but ensured that it would not be revived. Even if the Trump administration hadn’t replaced this Obama-era policy with a significantly weaker rule, the appointment of Neil Gorsuch to fill Scalia’s vacant seat signaled the Supreme Court would be highly likely to strike down the Clean Power Plan permanently if given the chance.
The problem for Democrats is that the legal defeat of the Clean Power Plan is likely not a one-off. This fight over the federal government’s power to address a slow-moving catastrophe is just one battle in a multi-front war over federal agencies’ power to regulate. As Stephen Bannon, then the White House’s chief strategist, told the Conservative Political Action Conference a month after Trump took office, one of the Trump administration’s primary goals would be “deconstruction of the administrative state.”
Enter the Roberts Court, fortified by Trump’s appointees. With six conservative justices, the Court has the votes it needs to make Bannon’s goal a reality — and at least five members of the Supreme Court have already endorsed a plan to erase much of the executive branch’s authority.
It wasn’t always this way. In the late 1980s, Justice Scalia was one of the Court’s staunchest defenders of a strong administrative state. Presidents Ronald Reagan and George H.W. Bush delivered three landslide victories in a row to Republicans, and the GOP was at the apex of its ability to gain power the old-fashioned way — by winning elections.
So conservatives benefited from court decisions that gave the Reagan and Bush administrations broad leeway to set federal policy. Both administrations could use this leeway to deregulate.
But the right’s approach to federal agencies shifted drastically during the Obama administration. With the GOP’s grip on the presidency waning at the very same time that they had a firm hold on the judiciary, conservatives had an obvious interest in increasing the judiciary’s power to strike down new rules pushed by federal agencies. By Obama’s second term, the conservative Federalist Society’s national lawyers convention became a showcase of proposals to deconstruct the administrative state.
All of this culminated in Justice Neil Gorsuch’s opinion in Gundy v. United States (2019), which called for strict new limits on federal agencies — and for the judiciary to even strike down many federal regulations as unconstitutional. Though Gorsuch’s opinion was a dissent — that is, he didn’t yet have a majority for it — five justices now on the Court have largely endorsed his framework, which relies on a conservative legal principle known as “nondelegation.”
In other words, it may be only a matter of time before the Court starts striking down Biden administration regulations that rely on legal arguments that would have been treated as nonsense just a decade ago.
At least since the Franklin Roosevelt administration, federal agencies have had wide latitude to implement the policies the president campaigned on. And agency-initiated regulations answer such important questions as who has access to health care, how much workers are paid for their labor, and a wide range of environmental questions that go well beyond the Clean Power Plan.
So, no matter what issue you care about, there is likely a federal regulation that shapes the nation’s approach to that issue. If the Supreme Court strips the government of much of its power to promulgate these regulations, it could effectively grind down the Biden presidency — not to mention dismantle much of American law.
Federal regulation, explained
Before we can understand how the Supreme Court might remake the balance of power between the executive and the judiciary, it’s important to understand what it means for a federal agency to regulate.
As a general rule, Congress can regulate businesses in two ways.
The most straightforward approach is simply to command industries to conduct their business in a certain manner. Thus, if Congress wants to reduce certain polluting emissions, it could enact a law that orders power plants to use a particular technology that reduces emissions.
But Congress is a slow-moving body, and federal laws are difficult to amend. If, in the 1970s, Congress had commanded power plants to use the best emissions reduction technology that existed at the time, it could have potentially locked these plants into using obsolete tech that is vastly inferior to the technology available now. At a minimum, Congress would have struggled to stay on top of new developments and to update this law as new methods of reducing emissions were invented.
For this reason, Congress may also regulate businesses in a second way. It can pass a law that lays out a broad federal policy but leave the details of how to implement that policy up to a federal agency. Often, such delegation means giving that agency a fair amount of authority to determine how businesses operate, so long as the agency uses this authority to advance the policy goal enacted by Congress.
When Congress wrote the Clean Air Act, for example, it made sure that the rules governing power plants could evolve as technology improves. Under this law, power plants must update their systems for reducing emissions to ensure that they achieve the same “degree of emission limitation achievable through the application of the best system of emission reduction” that currently exists, while also accounting for factors such as cost.
Congress also gave the job of figuring out what the “best system of emission reduction” is at any particular moment to the EPA administrator. As a practical matter, that means that EPA employees who are experts on environmental regulation and the energy industry will study which new technology is available and will update the rules governing power plants as that technology evolves.
And that’s exactly what EPA did when it created the Clean Power Plan. EPA determined that, to achieve the “best system of emission reduction,” at least some energy companies would need to shift from fairly dirty coal-fired electricity production to cleaner methods such as natural gas, or to renewable methods that result in no emissions at all.
Rules such as this one, which are promulgated by a federal agency pursuant to a federal law permitting them to do so, are known as “regulations.” When Bannon spoke of deconstructing the administrative state, or when the Federalist Society showcased proposals to diminish the executive branch’s authority, a major thrust of that project involved stripping agencies of much of their ability to regulate.
Ideally, laws like the Clean Air Act make complex lawmaking possible without having to sacrifice democratic accountability. Regulation allows our laws to be both democratic and dynamic. Such laws are democratic because the goals of federal policy — goals such as ensuring that power plants use the best emission reduction technology available — are still set by the people’s elected representatives in Congress. But they are dynamic because it allows federal rules to be updated without requiring Congress to enact a new law every time a new innovation is developed.
Yet, despite these advantages, the very idea that Congress should be free to delegate power in this way has many enemies within the conservative legal movement. In a 2016 opinion, for example, then-Judge Gorsuch wrote that two foundational Supreme Court decisions preserving agencies’ ability to regulate “permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”
After his elevation to the Supreme Court, Gorsuch called for strict new limits on the federal government’s power to regulate in his Gundy opinion. And since then, five members of the Court’s Republican-appointed majority have signaled, albeit in two different cases, that they agree with Gorsuch’s plans to restrict agency power.
Gorsuch and his allies do not simply view Congress’s power to delegate rulemaking authority to agencies as undesirable. They view broad delegations of power as inconsistent with the Constitution itself. And their narrow vision of federal power has profound implications for workers, consumers, patients, and the environment.
The future of federal regulation
There’s a name for this vision that Gorsuch and the Court’s conservatives are invoking: “nondelegation.”
Nonedelegation is the largely defunct idea that the Constitution places strict limits on Congress’s ability to delegate power to federal agencies. Although the Supreme Court briefly wielded the nondelegation doctrine to strike down New Deal policies that gave a simply extraordinary amount of regulatory power to President Roosevelt, this doctrine largely lay dormant for generations. And the Court’s decisions prior to Gundy emphasized just how reluctant courts should be to strike down laws permitting agencies to regulate.
Longstanding Supreme Court precedents hold that Congress has a broad authority to delegate power. As the Court explained in Mistretta v. United States (1989), “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.”
Thus, the Court has explained, Congress may delegate regulatory power to agencies so long as it “shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.”
While Reaganism was ascendant, conservative judges were often the biggest cheerleaders for broad judicial deference to federal agencies, frequently justifying such deference as a way to keep an unelected judiciary from undercutting democracy. As then-Judge Kenneth Starr wrote in a 1986 article on administrative law, “in part because federal judges are not directly accountable to any electorate, I believe they have a duty voluntarily to exercise ‘judicial restraint.’”
But these conservative calls for judicial restraint have since been replaced with bold demands for judicial intervention against federal agencies once Reaganism faded and Obama’s liberalism gained steam. A new conservative approach to administrative law, which seeks to concentrate power within a judiciary dominated by Republican appointees, is now ascendant.
In early October 2019, just a few days before Justice Brett Kavanaugh was confirmed to the Supreme Court, the eight remaining justices heard Gundy v. United States (2019), a case brought by a convicted sex offender who challenged his conviction for failing to register as a sex offender when he moved to New York. Herman Gundy’s case went after a federal statute that allowed the Justice Department to determine which sex offenders, who were convicted before a certain date, had to register with their state governments (the Justice Department determined that all eligible offenders must register).
Gorsuch used his opinion in Gundy to criticize the longstanding rule laid out in cases like Mistretta. Warning that permitting Congress to delegate power to agencies risks giving those agencies “unbounded policy choices,” Gorsuch proposed a vague new limit on Congress’s power to delegate.
According to Gorsuch, delegations of power to agencies must be struck down unless Congress put “forth standards ‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed.”
This vague new standard is inconsistent with the framers’ understanding of the Constitution. As explained below, early American lawmakers — many of whom were the same people who drafted the Constitution — delegated tremendous power to executive branch officials.
And Gorsuch’s rule would effectively consolidate an enormous amount of power within the judiciary.
As a practical matter, when the Supreme Court hands down a vague and open-ended legal standard like the one Gorsuch articulated in his Gundy opinion, the Court is shifting power to itself. What does it mean for a statute to be “sufficiently definite and precise” that the public can “ascertain whether Congress’s guidance has been followed”?
The answer is that the courts — and, ultimately, the Supreme Court — will decide for themselves what this vague language means. The courts will gain a broad new power to strike down federal regulations, on the grounds that they exceed Congress’s power to delegate authority.
In theory, that could mean that federal regulations will simply receive more scrutiny from an impartial judiciary. But, in practice, the judiciary is only as good as the judges who staff it. If five justices get behind it, the nondelegation doctrine would give a Republican supermajority on the Supreme Court the ability to veto nearly any regulation handed down by a Democratic administration.
It should be noted that Gorsuch’s opinion in Gundy was a dissent — the opinion was joined only by Chief Justice John Roberts and Justice Clarence Thomas. But Justices Samuel Alito and Kavanaugh have both signaled in other opinions that they share Gorsuch’s desire to revive the nondelegation doctrine.
And in Little Sisters v. Pennsylvania (2020), five justices signed on to an opinion by Justice Thomas, which strongly suggests that many of the Affordable Care Act’s (ACA) provisions requiring health insurers to provide a minimum level of coverage to their customers are unconstitutional under the nondelegation doctrine.
Little Sisters considered a provision of the ACA allowing a federal agency to determine which forms of “preventive care and screenings” for women must be covered without copays or other out-of-pocket costs by health insurers. Among other things, the agency determined that contraceptive care must be covered.
Yet Thomas’s majority opinion strongly suggests that this provision of the Affordable Care Act violates the nondelegation doctrine. He accuses Congress of giving “virtually unbridled discretion to decide what counts as preventive care and screenings” to a federal agency. Thomas’s decision lays the groundwork for the Supreme Court to eventually strike down the requirement that health insurers cover birth control (and possibly other, similarly worded provisions of Obamacare requiring coverage of immunizations and pediatric care).
Indeed, in late February, a conservative federal judge in Texas cited Little Sisters to suggest that multiple provisions of the ACA may be unconstitutional under the nondelegation doctrine.
And it won’t be just the ACA. Literally any regulation pushed during the Biden presidency, dealing with a wide range of matters from the fight against climate change to the protection of workers, could be vetoed by a Republican Supreme Court under this doctrine.
The constitutional arguments for the nondelegation doctrine are quite weak
This consolidation of power within a conservative judiciary could happen despite the fact that the nondelegation doctrine rests on the thinnest of constitutional reeds.
The Constitution gives Congress the “legislative” power, and the president and the various federal agencies that answer to the president the “executive” power.
The legislative power, according to Gorsuch, is the power to “adopt generally applicable rules of conduct governing future actions by private persons.” And proponents of nondelegation claim that the Constitution places strict limits on Congress’s ability to delegate this power to agencies merely tasked with executing existing laws.
Often, proponents of the nondelegation doctrine quote a passage from the political philosopher John Locke, who claimed 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.”
But there are many problems with this account of Congress’s ability to delegate power. For one thing, it misunderstands Locke. As law professors Julian Davis Mortenson and Nicholas Bagley note in an important paper, Locke draws a distinction between the legislature’s ability to “transfer” power and a “delegated” power.
Transferring a power requires a “permanent alienation” — that is, for Congress to “transfer” legislative power, it would have to give up that power forever to some other person or body. But Locke raised no objection to a legislature delegating a power, meaning that lawmakers may assign the ability to make certain binding rules to an agency, so long as the legislature retains the ability to take that power back.
Indeed, if anything, Locke’s quote undercuts the argument for the nondelegation doctrine because it recognizes that the legislative power has already been delegated once — to the legislature itself. Locke describes the power to make laws as “a delegated power from the people.” That is, it is the people, not the Congress or some other representative body, that has the inherent power to make rules that bind the whole of society. When the Constitution created Congress, it delegated the people’s power to make laws to that Congress. And Congress may, in turn, delegate a portion of that power to federal agencies.
Congress’s early history supports this reading of the Constitution, as the very first Congress enacted numerous laws giving vast discretion to other government officials. It allowed officials overseeing the Northwest Territory to “adopt and publish in the district, such laws of the original States, criminal and civil, as may be necessary, and best suited to the circumstances of the district.”
And it delegated Congress’s entire power to provide patents to inventors to executive branch officials, allowing the secretary of state, the secretary of war, or the attorney general to grant patents so long as they “deem the invention or discovery sufficiently useful or important.”
The First Congress didn’t simply give executive branch officials the power to issue licenses that would allow merchants to trade with Native American tribes, it also allowed the executive to promulgate regulations that would govern license holders “in all things touching the said trade and intercourse.”
The First Congress allowed the president to identify wounded or disabled soldiers, and to place them on “the list of the invalids of the United States, at such rate of pay, and under such regulations, as shall be directed by the President of the United States, for the time being.”
And it delegated to “any common law court of record” the power to grant citizenship to any free white person who resided in the country for two years, provided that the court was satisfied that the new citizen is a “person of good character.”
So the framers understood the Constitution to allow Congress to grant broad authority to federal agencies, and the position outlined by Gorsuch’s opinion in Gundy and Thomas’s opinion in Little Sisters is tough to square with this history.
But in the Supreme Court of the United States, history and constitutional text matter little if a party has five votes. And the nondelegation doctrine almost certainly has five votes.
President Biden will hardly be the first president to face lawsuits challenging his administration’s regulations. But he is likely to be the first president since Roosevelt to face a judiciary that’s so eager to rein in agency power.
The George Floyd Square is seen the day before opening statements in the trial of Derek Chauvin in Minneapolis, Minnesota, on 28 March. (photo: Nicholas Pfosi/Reuters)
Minneapolis Braces for Opening Arguments in Derek Chauvin's Trial
Amudalat Ajasa and Joanna Walters, Guardian UK
Excerpt: "The city of Minneapolis and millions across the US and around the world are bracing for Monday’s opening arguments in the trial of Derek Chauvin, the white former police officer charged with murdering George Floyd, who was Black, in the city last May."
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Rifles for sale at a Virginia store. (photo: Jim Watson/Getty Images)
Advocates Disappointed by Biden's Sidestep of Gun Legislation Given His History
Tamara Keith, NPR
Keith writes: "When President Biden was asked about actions he would take on gun violence prevention and said 'it's a matter of timing,' and pivoted to talk about infrastructure, it wasn't what Kris Brown had been expecting."
"I am disappointed, I will say, at what I heard from him," said Brown, who is president of Brady United Against Gun Violence.
That disappointment comes, in part, because of Biden's long history of working alongside gun safety advocates, going back to the 1990s when he helped shepherd through the Brady Bill requiring background checks on most gun purchases as well as a temporary ban on sales of some military-style semi-automatic guns.
Just two days before Thursday's press conference, the morning after the King Soopers mass shooting in Boulder, Colo., Biden said he didn't need to "wait another minute, let alone an hour to take common-sense steps that will save lives in the future and to urge my colleagues in the House and Senate to act."
He urged them to bring back an "assault weapons" ban and limits on high-capacity ammunition magazines.
But Biden knows better than almost anyone just how difficult that would be.
Biden was chairman of the Senate Judiciary Committee nearly 30 years ago, the last time Congress passed significant gun control legislation. And it wasn't easy.
"I'm not even angry anymore. I'm just as frustrated as hell," Biden said in 1994 in the middle of a lengthy fight with congressional Republicans and the National Rifle Association over the crime bill. It was a huge bill he'd been working on for a long time that included hiring more police officers, promoting community policing and crime-reduction strategies and drug courts, but also included sentencing changes blamed for a precipitous rise in mass incarceration in the U.S.
It also had a ban on a variety of semi-automatic guns; in a particularly heated speech, Biden said that was what was holding up the whole bill.
"Six years ago it was guns, five years ago it was guns, four years ago it was guns, last night it was guns," said Biden, nearly shouting.
The ban on military-style rifles and other high-capacity weapons was something many Democrats (though certainly not all of them) and gun safety advocates had spent years trying to pass. And then, at the last minute, to get it through, a sunset provision was added.
"It had not been in any prior draft. I mean, it's a very unusual feature of a law," said Brown, who was a congressional staffer working on the issue at the time.
After 10 years, the sunset kicked in and the ban lifted. Ever since, Democrats, including Biden, have unsuccessfully tried to get it back and make it stronger. Meanwhile, AR-15's and other similar weapons have become very popular, making Biden's new call for a so-called assault weapons ban even more politically challenging.
Biden was also involved in passing the Brady Bill, a 1993 law requiring background checks for most gun purchases, which is still in place today. It was named for James Brady, President Reagan's press secretary who was gravely injured in the assassination attempt on Reagan in 1981. Brady and his wife, Sarah, threw themselves into getting gun control legislation passed.
"It took six years and seven votes actually, and they had the NRA opposing them every step of the way," said Brown.
But there are loopholes and exceptions, and buying guns over the Internet wasn't even a thing in 1993. A generation and many mass shootings later, that legislation from the '90s still remains, because nothing else has been able to pass since.
Democrats lost control of the House of Representatives in 1994, and some who lost blamed the backlash to their vote on the semi-automatic weapons ban. The NRA actively campaigned against members of Congress who had supported the ban. There have only been brief moments when lawmakers prioritized gun control measures, usually after mass shootings, only to see the efforts fizzle as the nation's attention faded.
After the Sandy Hook school massacre in Newtown, Conn., then-President Barack Obama tasked his vice president with finding a way to bolster outdated gun laws. Biden held listening sessions with law enforcement, the gun lobby and met at length with the families of those 20 children shot down at their elementary school.
"There is nothing that has gone to the heart of the matter more than the visual image of little 6-year-old kids riddled — not shot with a stray bullet — riddled, riddled with bullet holes," Biden said at one event. This time, he argued, would be different because the crime was so unthinkable.
But as days stretched to weeks, what looked like a bipartisan compromise to expand background checks began falling apart in the Senate. A few days before the vote, Biden saw the writing on the wall.
"People say, 'Well what am I going to say to the NRA?' Well, I've got a question for you: What are you going to say to those parents?" Biden asked, emotion in his voice. "Look them in the eye and tell them you concluded there's nothing you can do."
The families were in the gallery overlooking the chamber, when Biden, in his ceremonial role as president of the Senate, presided over the vote where the legislation failed. It didn't have enough support to overcome a filibuster, though would have passed if it had gotten an up-or-down vote.
At his press conference Thursday, Biden said, "Politics is the art of the possible." It is not clear whether his experience over the decades led him to believe at this moment that the federal gun legislation he said he wanted earlier in the week just isn't possible. But White House press secretary Jen Psaki defended his decision to focus next on infrastructure.
She said he understands the frustration of the gun safety advocates "and he understands it as one of the few people in government who ever beat the NRA twice by leading the fight to pass the Brady Bill and the assault-weapons ban."
She pointed to 23 executive actions taken by Obama when the legislative efforts failed and said there is a review underway now of actions Biden could take. She said, in the absence of federal laws, states have taken up their own gun control legislation, including "red flag laws" meant to keep guns from people who are an imminent danger to themselves or others.
"But you know, we would say that the frustration should be vented at the members of the House and Senate that voted against the measures the president supports," Psaki said. "And we would certainly support their advocacy in that regard."
This is unlikely to satisfy advocates, whom Biden has worked with for years, who want him to make gun safety a priority and take bold action.
The NYPD carrying off a protester on Martin Luther King Jr. Day. (photo: Bruce Schaff/Gothamist)
A Police Union Contract Puts Taxpayers on the Hook to Defend Officers When the City Won't
Jake Pearson, ProPublica
Pearson writes: "Even among the hundreds of videos capturing the violent police response to Black Lives Matter protests last year, this one stood out."
A little-known labor contract provision obligates New Yorkers to help pay officers’ legal bills in lawsuits that city lawyers won’t defend.
A muscular male officer, in a navy blue shirt with “NYPD” across the back, lunged at a young demonstrator, shoving her several feet and sending her crashing to the ground on a street in Brooklyn.
In a video shot by a reporter and shared widely on social media, the woman, Dounya Zayer, can be seen clutching her head and writhing in pain after she tumbles to the asphalt.
The mayor called the officer’s actions “absolutely unacceptable,” the police commissioner said internal affairs was investigating and, 11 days after the incident, the district attorney announced criminal charges against the officer, Vincent D’Andraia.
Zayer, 21, went on to file a lawsuit alleging that D’Andraia had violated her right to free speech, and last month, the city’s Law Department, which almost always represents officers sued for on-the-job actions, told D’Andraia it wouldn’t defend him in court.
It looked like the city was cutting the cop loose, a step rarely taken in the hundreds of lawsuits filed every year against NYPD officers. But while a city lawyer won’t be representing D’Andraia in court, it turns out New Yorkers are still paying the law firm that is representing him in the case.
That’s because every year, the city treasury effectively bankrolls a union-controlled legal defense fund for officers. The little-known fund is financed in part by a direct city contribution of nearly $2 million a year that is expressly intended to pay for lawyers in civil cases like D’Andraia’s, where the Law Department has decided an officer’s conduct is essentially indefensible. Or, as the police union’s legal plan puts it, “when the City of New York fails or otherwise refuses to provide a legal defense.”
The money isn’t supposed to be used by the union, the Police Benevolent Association, “in any action directly or indirectly adverse to the interests of the City,” according to a 1985 letter memorializing the deal that established the annual taxpayer contribution. But the agreement doesn’t define those “interests,” and the city is typically a co-defendant in such cases, as it is in the lawsuit by Zayer. So even as the city might distance itself from an officer, it could still argue that the government’s legal interests are best served by its employee having robust legal representation.
“It’s not bad public policy to invest and make sure that all sides have adequate representation,” said Zachary Carter, who ran the Law Department from 2014 to 2019.
But critics say that subsidizing such defenses could undercut police accountability by sending a message to officers that the city will back them no matter what.
“The bottom line is this is scandalous,” said Joel Berger, a lawyer who specializes in police abuse cases and who, in the 1990s, served as a senior official in the Law Department who decided when the city should withdraw representation of officers. “It was a sweetheart deal with the union and it should never have been agreed to.”
Neither the mayor’s office nor the Law Department would address detailed questions from ProPublica about the fund, including how the city squares paying for the defense of officers it won’t represent with the provision stipulating that the money not be used for any purpose “adverse to the interests of the City.”
The Legal Services Fund of the Police Benevolent Association has in recent years paid for the representation of an NYPD officer accused in a lawsuit of slamming a 75-year-old man with Parkinson’s disease against the hood of a car after the man talked back to the cop, and has paid to defend another officer who court papers charge tackled an unarmed, chronically ill, 4-foot-8-inch, 85-pound man and shocked him with a stun gun.
The message to officers, said Zayer’s lawyer, Tahanie Aboushi, is that the city will help shield them from some of the consequences of even their most egregious conduct.
“Maybe you’re going to be disciplined,” said Aboushi, who is a candidate in the race to be the next Manhattan district attorney, “but getting a lawyer, paying for a lawyer, understanding the accountability that comes from a lawsuit — they’re completely insulated from that.”
It is the sort of protection that, in the last few decades, has proliferated in police labor agreements across the country, often negotiated behind closed doors, with little attention paid to the public policy implications.
But in the reckoning that has followed George Floyd’s killing, many Americans are rethinking how the country is policed and unions are facing particularly pointed questions, not just in Minnesota or in New York, but also in city halls, in state legislatures and at negotiating tables across the country.
“There is a whole set of what I’ve labeled ‘special privileges’ that employees in other contexts don’t enjoy,” said Samuel Walker, an emeritus professor of criminal justice at the University of Nebraska at Omaha and a national expert on police accountability. “It’s been a very secretive development, and the lack of any organized opposition until just recently has kept it secret.”
The violent police response to many Black Lives Matter demonstrations across the country in the weeks after Floyd’s death only intensified calls for sweeping changes in American policing.
In New York, the furor after Floyd’s death pushed through the long-sought repeal of a state law that made police disciplinary records secret. And last month, the city beat back a legal challenge by the PBA and other unions that had sought to block the release of those records.
But Mayor Bill de Blasio, who campaigned as a champion of police reform, has been criticized for his embrace of the NYPD, particularly during the Black Lives Matter demonstrations. As he prepares to leave office at the end of the year, many of the leading candidates to succeed him have promised a new approach to policing.
Still, it’s a long way from the campaign stump to the negotiating table, and even after the events of the last year, the police unions — and the power and protections entrenched in their contracts — will pose a formidable test for the next mayor. The PBA’s contract expired in 2017 and will remain in force until a new one is approved, so it will almost certainly fall to the new administration to negotiate the next labor deal and to decide whether to take on sacred cows like the legal defense fund.
ProPublica pieced together the origins of the defense fund by reviewing tax records, studying labor agreements and examining other city documents obtained through the Freedom of Information Law.
Like anyone charged with a serious crime, an officer facing criminal prosecution has a right to a defense lawyer. But the deal establishing the city’s contribution to the fund was specifically designed to pay for defending officers in civil litigation, where an officer could face a substantial monetary judgment.
The deal, struck by the then-police union head and the city’s top labor negotiator, created what has become an annual taxpayer contribution that amounts to $75 per officer. The legal services fund takes in another $3.7 million every year from the union’s health and welfare fund, a city-funded entity that provides health insurance and other employee benefits. That portion of the defense fund can be used for legal representation, too, though not in those lawsuits where the city has said it will not represent the officers.
All told, the defense fund takes in about $5.5 million a year, which the PBA pays to the Manhattan law firm of Worth, Longworth & London to represent officers, tax filings show.
A spokesman for the PBA, which represents about 25,000 rank-and-file officers, didn’t respond to detailed questions about the fund.
While the PBA was the first to secure the city contribution, the annual $75-per-member taxpayer funding for civil defense has been replicated in the contracts that cover thousands of NYPD sergeants, lieutenants and captains.
The union representing the 9,000 jail guards who run the violence-plagued Rikers Island complex and other city jails secured a $75-per-member city contribution to their defense fund as well. Correction officers are frequently sued over allegations of prisoner abuse and neglect in New York City, suits that have led to multimillion-dollar settlements and, in recent years, a federal investigation and monitoring agreement. And the union representing jail wardens, deputy wardens and assistant deputy wardens gets a $189-per-member contribution for civil defense, according to their contract.
New York City’s mayoral primaries are on June 22, and de Blasio’s staunch support for the NYPD has made police accountability a key issue in the race to succeed him, especially among candidates with their own ties to oversight and reform of the department.
Candidate Maya Wiley, once a close adviser to de Blasio and later the chair of the city’s police oversight board, said she would renegotiate the police union contract to ensure better accountability. A Wiley spokesperson said the taxpayer money going to officers’ civil defense should go to gun violence prevention or “a dozen other, better ways to ensure public safety.”
Another mayoral candidate, Comptroller Scott Stringer, plays a key role in police accountability, reviewing and approving every settlement reached in civil cases brought against police officers. But a campaign spokesman said Stringer wasn’t familiar with the defense fund provision of the PBA’s contract and that his policy staff was now looking into it. Mayoral hopeful Eric Adams was for many years a prominent reform voice within the NYPD, rising to the rank of captain and co-founding the group 100 Blacks in Law Enforcement Who Care. But Adams, now the Brooklyn borough president, didn’t respond to questions.
In New York, the rare rollback of police union protections has typically come only when a case of police brutality seized the public conscience and compelled political leaders to act. Even then it can take years.
For decades, NYPD officers involved in shootings or other incidents of potential wrongdoing had two full days to consult with lawyers before being questioned by internal affairs investigators. But after officers sodomized a Haitain immigrant with a stick in the bathroom of a Brooklyn police station in 1997, the so-called 48-hour rule emerged as a key obstacle in the investigation.
In negotiations to settle his lawsuit against the city and the police union, the man, Abner Louima, and his lawyers called for the rule to be scrapped. It wasn’t until 2002, during labor negotiations with the police union, that city officials moved to extract the provision from the agreement, asserting that the police commissioner had broad authority to oversee disciplinary matters. That prompted a yearslong legal battle, which the union ultimately lost in 2006.
Removing a union benefit that has been renewed for decades is possible, but it’s hard to do, said Victor Kovner, who served as the city’s chief lawyer under Mayor David Dinkins in the early 1990s. “And hard doesn’t begin to suggest how challenging it would be,” he said.
Stephen Rushin, a professor at Loyola University School of Law in Chicago and an expert on police contracts, said that the key question is whether the legal costs of officer misconduct, however cities choose to cover them, lead police departments and their officers to change the way they operate.
“How do we make cities internalize the costs that their officers are generating through their misconduct with the public?” Rushin said.
The NYPD has about 35,000 officers and the Law Department usually represents them when they’re sued in civil court in connection with on-the-job conduct and takes responsibility for paying out settlements or any punitive damages a jury might award. In fiscal year 2019, the city paid $220.1 million in settlements and judgments for police-related cases, city comptroller data shows.
But when the Law Department concludes that an officer likely acted outside “the scope of his public employment and in the discharge of his duties” and violated internal disciplinary rules, city lawyers can withhold representation, according to a 1979 state law. Of 562 cases naming police officers as defendants in 2019, the Law Department declined to represent the officers in just 48, according to the Law Department.
That’s where the PBA’s defense fund steps in.
The law firm it contracts with, Worth, Longworth & London, has handled legal matters for the PBA since 1998, including high-profile criminal and internal disciplinary cases. One partner, Stuart London, represented the police officer who in 2014 put Eric Garner in a deadly chokehold when the officer faced both a grand jury and an NYPD disciplinary hearing. Another firm partner represented the officer who was brought up on departmental charges after tackling former tennis pro James Blake in a 2015 encounter that turned out to be a case of mistaken identity.
Though the defense fund has existed for decades, there has been little scrutiny of it. Many lawyers who represent New Yorkers in police brutality cases said they didn’t know of the fund’s existence until asked about it by ProPublica. The office of the city comptroller, which can audit union accounts that receive taxpayer dollars, last examined the PBA defense fund in 1994.
London and two attorneys from his firm who handle civil defense cases didn’t respond to questions about the fund or Officer D’Andraia. A person who answered a cellphone number listed for D’Andraia hung up when ProPublica called and inquired about the officer's defense. In court papers, the lawyers said D’Andraia was acting in his official capacity as a police officer at the time of the incident but otherwise denied Zayer’s allegations. D’Andraia is due back in court in the criminal case in October. He’s represented by Stephen Worth, a partner at the same firm representing him in the civil case. Worth hasn’t responded to a message seeking comment.
Thai PBS reported about 3,000 people had reached Thailand. (photo: Karen Women's Organization/Twitter)
Myanmar Army Air Raids on Karen Force 3,000 to Flee for Thailand
Al Jazeera
Excerpt: "Some 3,000 people from Myanmar's southeastern Karen state have fled to neighboring Thailand following air attacks by the army on an area held by an ethnic armed group, according to activists and local media reports."
Aerial assault comes after group controlling southeastern state condemned February 1 coup and announced support for public resistance.
ome 3,000 people from Myanmar’s southeastern Karen state have fled to neighbouring Thailand following air attacks by the army on an area held by an ethnic armed group, according to activists and local media reports.
The military launched air raids on five areas in Mutraw district near the border, including a displacement camp, the Karen Women’s Organization said on Sunday.
“At the moment, villagers are hiding in the jungle as more than 3,000 crossed to Thailand to take refuge,” a statement from the group said.
“We demand an international response to the atrocities taking place to send the message that the military cannot longer act with impunity,” it added.
Thai PBS also reported about 3,000 had reached Thailand.
There was no immediate comment by Thailand’s authorities.
The air assaults are the most significant attack for years in the region controlled by the Karen National Union (KNU).
The armed group signed a ceasefire agreement in 2015 but tensions have surged after the military overthrew Aung San Suu Kyi’s civilian government in a February 1 coup.
The KNU and the Restoration Council of Shan State, also based on the Thai border, have condemned the military’s takeover and announced their support for public resistance.
KNU says it has been sheltering hundreds of people who have fled central Myanmar in the face of an increasingly deadly crackdown against security forces in recent weeks.
The country has been in turmoil since the military overthrew and detained Aung San Suu Kyi, triggering an enormous uprising demanding a return to democracy.
The military has defended its power grab, citing allegations of fraud in the November election which Aung San Suu Kyi’s National League for Democracy won by a landslide.
Security forces have increasingly cracked down with lethal force on demonstrations against the coup in recent weeks, using tear gas, rubber bullets and live rounds to break up rallies.
Shanna Swan: 'In the US, most chemicals are assumed to be safe.' (photo: Roger Meissen/Bond Life Sciences Center)
Due to Chemicals in Plastics 'Most Couples May Have to Use Assisted Reproduction by 2045'
Zoë Corbyn, Guardian UK
Corbyn writes: "I am directly speaking to this hidden problem people don’t like to talk about, which is their sub-fertility or reproductive problems, and how that is tied to the environment."
The professor of environmental medicine explains how chemicals in plastics are causing our fertility to decline – and what we can do about it
hanna Swan is a professor of environmental medicine and public health at Mount Sinai school of medicine in New York City, studying fertility trends. In 2017 she documented how average sperm counts among western men have more than halved in the past 40 years. Count Down is her new book.
You’ve spent more than 20 years examining the effects of hormone disrupting chemicals on reproductive health. Are you now sounding the alarm?
I am directly speaking to this hidden problem people don’t like to talk about, which is their sub-fertility or reproductive problems, and how that is tied to the environment. People are recognising we have a reproductive health crisis, but they say it’s because of delayed childbearing, choice or lifestyle – it can’t be chemical. I want people to recognise it can. I am not saying other factors aren’t involved. But I am saying chemicals play a major causal role. It is difficult to use that word, “cause”, but it’s a body of evidence. We have mechanisms, animal studies, and multiple human studies.
Female fertility declines rapidly after about 35. Isn’t that why so many people are turning to IVF?
It’s not that simple. When a colleague and I looked at the change in impaired fecundity [the ability to have children] we were surprised to see younger women had experienced a bigger increase than older age groups. This suggests that something besides ageing and delayed childbearing is affecting fertility.
Moreover, there’s compelling evidence that the risk of miscarriage has been rising among women of all ages.
Which chemicals are the most worrying for reproductive health and how do they work?
Those that can interfere with or mimic the body’s sex hormones – such as testosterone and oestrogen – because these make reproduction possible. They can make the body think it has enough of a particular hormone and it doesn’t need to make any more, so production goes down.
Phthalates, used to make plastic soft and flexible, are of paramount concern. They are in everybody and we are probably primarily exposed through food as we use soft plastic in food manufacture, processing and packaging. They lower testosterone and so have the strongest influences on the male side, for example diminishing sperm count, though they are bad for women, too, shown to decrease libido and increase risk of early puberty, premature ovarian failure, miscarriage and premature birth.
Bisphenol A (BPA), used to harden plastic and found in cash-register receipts and the lining of some canned-food containers, is another. It is oestrogen mimicking and so is a particularly bad actor on the female side, increasing risks of fertility challenges, but likewise it can affect men. Men occupationally exposed to BPA have shown decreased sperm quality, reduced libido and higher rates of erectile dysfunction. Other chemicals of concern include flame retardants and certain pesticides such as atrazine.
When is the most damage done?
A lot of the exposure that causes these changes occurs in utero when the foetus is first forming. These rapidly dividing cells are the most sensitive. The hits then continue through childhood, adolescence and adulthood. There is a cumulative nature to this. And we can pass these effects on. The simplest way is by direct exposure. A female foetus, in utero, is growing the eggs that she will use to have her own children. These chemicals can make their way to those germ cells, too.
What is the anogenital distance (AGD) and why does it matter?
It is the distance from the anus to the genitals and it is usually far longer in males than females. It is a indicator of how much androgen [male sex hormones including testosterone] an infant was exposed to during early pregnancy. AGD is such an important marker of reproductive health and endocrine disruption – if we measured it for every infant, we would know something about their future fertility. Shorter AGDs in males and longer AGDs in females indicate less reproductive success.
You’ve used AGD to show phthalates cause low sperm count in men. How?
When I started looking at phthalates, around 2000, phthalate syndrome had been shown experimentally in rodents but not in humans. Mother rats given phthalates had male babies with a smaller penis and scrotum, their sperm counts were lower and their AGD was shorter. I ran a study where we measured the stored urine of pregnant women for phthalates and we measured their male babies’ and toddlers’ AGDs – a first – along with some other genital measurements. We found exactly what had been found in rodents: phthalate syndrome. I then did a study of college-age men, where we got them to give a semen sample and measured their AGD, and we showed that the shorter the AGD, the lower the sperm count. This is why I am confident: we have a direct link from phthalates to short AGD and then from short AGD to low sperm count, and those results have been confirmed by subsequent studies.
How dire is the reproductive crisis? You’ve said we are on course for an infertile world by 2045…
It is serious. If you follow the curve from the 2017 sperm-decline meta-analysis, it predicts that by 2045 we will have a median sperm count of zero. It is speculative to extrapolate, but there is also no evidence that it is tapering off. This means that most couples may have to use assisted reproduction.
Drugs are monitored for safety. What is the regulatory situation for these chemicals?
In the US, most chemicals have not been tested and are assumed to be safe. There has been better progress in Europe. Though imperfect, the EU’s Reach (Registration, Evaluation, Authorisation and Restriction of Chemicals) regulation was a big step forward. There are huge economic interests preventing tougher regulation.
What needs to happen?
The chemical industry must start producing chemicals that can be used in everyday products that are non-hormonally active. Regrettable substitution – where one harmful chemical is replaced by another untested one, which then turns out to have the same risks – must also stop. It has happened with different phthalates, BPA and flame retardants and it is unacceptable. And we need to test the chemicals we are currently using – and not just at high doses and not just one at a time, because we are being exposed to a large number.
Should we believe packaging that says BPA or phthalate free?
If it says “BPA free” it probably doesn’t have BPA. But notice that it doesn’t say bisphenol free so you could still be getting bisphenol S or F, which are regrettable substitutes. “Phthalate free” I would also be suspicious of. While it might be free of the old, well-known actors, it may not be free of newer ones. People should feel angry about potentially being tricked this way and press for change.
What should we be doing to cut down our exposure?
People of reproductive age, particularly those planning pregnancy or pregnant, should be aware that everything they bring into their home has the potential to contain these chemicals. To the extent possible, eat unprocessed foods – a bunch of carrots, potatoes that you cook yourself – as this should reduce exposure through plastic. Also, when cooking, don’t use Teflon or anything coated and don’t microwave in plastic. For personal care and household products use a minimum of simple products and try to avoid those that are scented; phthalates are added to hold scent. The non-profit Environmental Working Group has free consumer guides that give information about specific products.
Can we can turn things around?
I think we can. We have the ingenuity and the resources to do it. But we need a recognition of the problem and the will to change.
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