10 July 22
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Fortunately, Congress doesn’t have to sit back and wait for the court’s next potential blow against democracy. Under the same constitutional provision invoked by North Carolina’s politicians, Congress can indisputably nullify their claim of absolute electoral power—and all others like it. That provision is the elections clause of Article I. North Carolina’s politicians fixate on the first half of the clause, which says that “the Legislature” of each state shall regulate the “Times, Places and Manner” of congressional elections. But the clause’s second half authorizes Congress to override any state policies about congressional elections with which it disagrees. “Congress may at any time … make or alter such Regulations.”
To nip the North Carolina case in the bud, then, all Congress has to do is pass a short statute ratifying all state regulations of congressional elections that are compliant with state constitutions. State constitutions commonly give regulatory roles to many nonlegislative actors: governors who can veto bills, state courts who can review laws’ constitutionality, bureaucrats who can set certain policies, even voters who can launch initiatives. Under the proposed statute, all these actors’ efforts would be immunized against North Carolina–style challenges. That’s because gubernatorial vetoes, state court decisions, state agency rules, and voter initiatives would all now have the imprimatur of federal law. So if a state legislature objected to any of these actions, the resulting clash would no longer be between that body and another state actor—a battle at least four Supreme Court justices likely think the legislature should win. Instead, the dispute would be between the legislature and federal law, which would plainly trump that body’s preferences.
If Congress wanted to pack more of a punch, it could also try to ratify all state regulations of presidential elections. In that case, the statute would aim to neutralize state legislative complaints about state courts or state agencies making decisions about presidential races. It would also hope to foil state legislative schemes to appoint presidential electors unilaterally, in violation of state law. In other words, the statute would seek to pull the rug from under many of the strategies that Donald Trump deployed after losing the 2020 election. The odds of another coup attempt disguised by a patina of legal argument would thus decline sharply.
To pass the statute, Democrats would have to either amend the filibuster—an unlikely scenario at this point—or win the support of several Senate Republicans. This second avenue is more plausible than it sounds. Some Republican senators might be interested for the same reason they’re likely to agree to revisions of the Electoral Count Act: avoiding a rerun of the tragic events that followed the 2020 election. The Electoral Count Act’s ambiguities contributed to the election’s grim aftermath by seeming to allow the vice president to reject properly certified slates of electors. Just as responsible for these developments was the idea that state legislatures can do whatever they want with respect to presidential elections. The statute would squelch that idea once and for all. (To ease passage, it could even be incorporated into the Electoral Count Act amendments.)
Raw partisanship might be another impetus for Senate Republicans to act. If accepted, North Carolina’s claim would open the door to brutal Democratic gerrymanders in California, Colorado, Maryland, New York, and Washington. In all these states, Democratic legislators are currently blocked from crafting advantageous maps by independent commissions or state constitutional provisions. Combined, these states’ congressional seats far outnumber the seats of states where Republican legislators are the ones barred from gerrymandering by state law. So at least in terms of redistricting, it’s Democrats who would be the big winners of a ruling that state legislatures can draw the lines however they like. That the North Carolina case happens to be brought by Republicans doesn’t change that fact.
The Senate is one audience; the right-wing Supreme Court is another. Would the court allow Congress to countermand state legislative choices about federal elections? In a 2013 decision authored by conservative patron saint Justice Antonin Scalia, the court did just that. The Arizona Legislature tried to require people to show proof of citizenship when they registered to vote. The court held that this requirement was preempted by the National Voter Registration Act, which permits people to register after completing a form that doesn’t ask for citizenship documentation. Congress, the court explained, can “preempt state legislative choices” as it sees fit. Congress’ power over federal elections is “paramount” and so “supersede[s]” any “inconsistent” state legislative policies.
If anything, a statute ratifying all state regulations of federal elections would present an easier case. The National Voter Registration Act significantly changed the legal status quo. In the court’s words, it “erected a complex superstructure of federal regulation atop state voter-registration systems.” In contrast, the suggested statute would perfectly preserve the existing legal order. However state constitutions distribute authority among legislatures, governors, courts, agencies, and voters would be respected—in fact, codified—by Congress. The statute’s only impact would be to stop legislatures like North Carolina’s from asserting that their wishes must prevail over those of all other state actors.
To be sure, extending the statute to presidential elections is legally murky. On the one hand, the Supreme Court long ago rejected the view that “Congress has less power over the conduct of presidential elections than it has over congressional elections.” On the other, the language of Article II does support a distinction between these contexts. Unlike the elections clause of Article I, the electors clause of Article II only enables Congress to “determine the Time” of presidential elections. It wouldn’t be hard for a textually minded court to conclude that, while Congress has near-plenary authority over congressional elections, its ability to regulate presidential elections is more limited.
But this possibility hardly dooms this project. For one thing, the court might choose to respect its precedent about the symmetry of Congress’ powers over congressional and presidential elections. More importantly, it’s the North Carolina case that’s the imminent threat to American democracy, and that suit involves only congressional elections. Even if Congress can’t respond to every other danger, it can at least defuse this bomb.
The war in Ukraine has severely disrupted global markets for food and energy. (photo: Mariana Nedelcu/Reuters)
UN Development Programme report finds surge in commodity prices hitting parts of world’s regions hard.
Achim Steiner, the UNDP administrator, said at the launch of the report on Thursday that an analysis of 159 developing countries showed that the surge in crucial commodity prices this year was already hitting parts of Africa, the Balkans, Asia and elsewhere hard.
The 20-page report focused on addressing the cost of living crisis in developing countries. It estimated that 51.6 million more people fell into poverty in the first three months after the war, living off $1.90 a day or less. This pushed the total number globally at this threshold to 9 percent of the world’s population. An additional 20 million people slipped to the poverty line of $3.20 a day.
“This will have immediate and devastating effects on household welfare – with those in poverty and near-poverty typically hit hardest due to their higher energy and food budget share – posing significant policy challenges to governments during the response,” the report said.
The war in Ukraine has severely disrupted global markets for food and energy due to both countries’ large global market shares. Before the war began on February 24, Russia was the world’s largest and second-biggest exporter of natural gas and crude oil. Russia and Ukraine together accounted for almost a quarter of global wheat exports, 14 percent of corn exports, and more than half of sunflower oil exports.
Ukraine’s blocked ports and inability to export grains to low-income countries further drove up prices, pushing tens of millions into poverty and economic crisis.
The UNDP report said more than two-thirds of the 166.8 percent increase in natural gas over the 12 -month period ending on 31 May, 2022 has been recorded since the start of the war.
Among those countries likely facing high poverty impacts across all poverty lines are Armenia and Uzbekistan in the Caspian Basin; Burkina Faso, Ghana, Kenya, Rwanda, and Sudan in Africa; Haiti in Latin America; and Pakistan and Sri Lanka in South Asia, it noted.
The economic woes are increasing protests in many countries as they are struggling to meet their debt repayment obligations. More than half of the world’s poorest countries are in debt distress or at high risk of it, according to the UN.
In low-income countries, families spend 42 percent of their household incomes on food but as Western nations put sanctions on Russia, the price of fuel and staple food items like wheat, sugar, and cooking oil soared.
“The cost of living impact is almost without precedent in a generation … and that is why it is so serious,” Steiner said.
The speed at which this many people experienced poverty outpaced the economic pain felt at the peak of the pandemic, he added.
The UNDP noted that 125 million people experienced poverty over about 18 months during the pandemic’s lockdowns and closures, compared with more than 71 million in just three months after the Russia-Ukraine war.
“The speed of this is very quick,” said George Molina, UNDP chief economist and author of the report.
Another UN report released on Wednesday said world hunger rose last year, with 2.3 billion people facing moderate or severe difficulty obtaining enough to eat – and that was before the war in Ukraine.
There was a need for the global economy to step up, Steiner said, adding that there was enough wealth in the world to manage the crisis, “but our ability to act in unison and rapidly is a constraint”.
The UNDP recommended that “targeted and time-bound cash transfers are the most effective policy tool to address the impacts.”
Steiner said doing so was not only an act of charity but also “an act of rational self-interest” to avoid other complex trends, such as the economic collapse in countries and popular protests already taking place in communities across the world.
“This cost-of-living crisis is tipping millions of people into poverty and even starvation at breath-taking speed,” Steiner said.
“With that, the threat of increased social unrest grows by the day.”
An abortion rights activist flies an upside-down American flag, a sign of dire distress, outside of the US Supreme Court during a protest on June 26, two days after the Court overturned Roe v. Wade. (photo: Samuel Corum/AFP/Getty Images)
What happens if the Court rejects the rule of law?
Last December, for example, the Supreme Court handed down a decision that fundamentally alters the Union — giving states sweeping authority to restrict their residents’ constitutional rights.
At least, that’s what happened if you take the Court’s 5-4 decision in Whole Woman’s Health v. Jackson seriously. Jackson involved Texas’s anti-abortion law SB 8, which allowed “any person” who is not employed by the state to sue anyone they suspect of performing an abortion after the sixth week of pregnancy, and to collect a bounty of at least $10,000 from that abortion provider. The Court allowed that law to take effect, even though abortion was still considered a constitutional right at the time.
If you apply the logic from Jackson more broadly, any state could pass a law unleashing such litigious bounty hunters upon people who exercise any constitutional right. Perhaps a state wants to make it illegal to own a gun, or maybe it wants to allow bounty hunters to sue any Black family that sends its child to a predominantly white school — and the federal judiciary will simply stand back and let it happen. Realistically, the Court is unlikely to allow these sorts of attacks. But to spite abortion, the conservative majority was willing to open the door to them.
Jackson, moreover, was only the beginning of a Rumspringa of conservative excess led by the Court’s Republican-appointed majority.
In its just-completed term, the Supreme Court overruled Roe v. Wade, permitting states to ban abortions without having to resort to SB 8-style chicanery. It also overruled a seminal 1971 decision prohibiting the government from advancing one religious belief at the expense of others. It all but neutralized another half-century-old precedent permitting federal law enforcement officers who violate the Constitution to be sued. And the Court’s Republican majority dismantled two decisions protecting criminal defendants who were convicted or sentenced without adequate defense counsel, most likely condemning an innocent man to die in the process.
The Court endangered huge swaths of long-existing gun laws, striking down a New York state law that has been on the books for 109 years. And it did so in an opinion that simultaneously fetishizes the “Second Amendment’s plain text,” while ignoring the first thirteen words of that amendment.
The same Court that attacked Roe as “remarkably loose in its treatment of the constitutional text” saw no problem with ignoring half of the text of the Second Amendment.
In what may be the most consequential environmental case in decades, the Court relied on something called the “major questions doctrine” — a fairly new legal doctrine that is never mentioned in the Constitution or in any statute and that was invented entirely by judges — to strip the Environmental Protection Agency of much of its authority to fight climate change.
The Court even abandoned any pretense that it must be honest about the facts of the cases it decides, claiming that a public school football coach who ostentatiously prayed on the 50-yard line after games — while surrounded by players, spectators, and members of the press — was merely engaged in a “short, private, personal prayer.”
It was a singularly alarming Supreme Court term. The Court didn’t simply abandon longstanding legal rules, at times it seemed to abandon the rule of law altogether.
What is “the rule of law”?
I make a strong claim in this essay, arguing that the Supreme Court of the United States is no longer deciding many major cases in a way that is recognizably “legal.” So let’s start by establishing a baseline definition of what constitutes the rule of law and what it means for a judge to act consistently with this principle.
Societies that adhere to the rule of law must apply the same binding rules to all persons and institutions, including the state itself. According to the United Nations, these rules must be “publicly promulgated, equally enforced and independently adjudicated,” and the rule of law demands “equality before the law,” “legal certainty,” and “avoidance of arbitrariness.”
The late Justice Antonin Scalia offered one of the best explanations of how a judge can act consistently with the rule of law in a 1989 essay. “When, in writing for the majority of the Court, I adopt a general rule,” Scalia explained, “I not only constrain lower courts, I constrain myself as well.” Because “if the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences.”
Scalia’s formulation captures the rule of equality before the law. If a judge applies a certain rule to Republicans, they must be comfortable applying it to Democrats as well. If they apply one rule to people who oppose abortion, they must apply the same rule to people who support abortion.
Similarly, Scalia’s formulation advances the values of legal certainty and non-arbitrariness. While there are extraordinary circumstances when the Supreme Court should overrule one of its previous precedents, lawyers and lawmakers should typically be able to look at the Court’s past decisions and be able to predict how the law will apply moving forward. When possible, the Supreme Court should hand down clear legal rules which enhance this predictability and that cannot easily be manipulated to hand down arbitrary decisions that favor some groups over others.
With these principles of equality, clarity, and non-arbitrariness in mind, let’s take a look at some of the Court’s recent decisions.
Whole Woman’s Health v. Jackson is one of the worst decisions in the Supreme Court’s history
There are a handful of Supreme Court decisions that legal scholars refer to as the “anti-canon,” decisions that were so poorly reasoned and monstrous in their consequences that they are taught to law students as examples of how judges should never behave. The anti-canon includes cases like the pro-slavery decision in Dred Scott v. Sandford (1857), the segregationist decision in Plessy v. Ferguson (1896), the anti-worker decision in Lochner v. New York (1905), and the Japanese-American internment decision in Korematsu v. United States (1944).
Whole Woman’s Health v. Jackson belongs on this list. It is, as Chief Justice John Roberts wrote in dissent, so thoroughly inconsistent with the idea that the Constitution binds every state government that it threatens to transform that document into a “solemn mockery.” Jackson introduces an intolerable amount of unpredictability and arbitrariness into US law, transforming the constitutional rights that every American should reasonably be able to rely upon into dust that can be blown away by a sufficiently clever state legislature.
So long as Jackson remains good law, no constitutional right is safe.
To understand why Jackson is so troubling and why it threatens literally all constitutional rights, it’s helpful to understand why Texas wrote this law to rely on private bounty hunters.
As a general rule, someone who believes that a state law violates their constitutional rights cannot sue that state directly in federal court. Under the Court’s decision in Ex parte Young (1908), however, they may sue the state officer tasked with enforcing an allegedly unconstitutional law. Thus, for example, if a state passed a law requiring state police to blockade abortion clinics, a plaintiff might sue the chief of the state police to block that law.
But SB 8, the anti-abortion law at issue in Jackson, attempts to cut state officers out of the enforcement process altogether. SB 8 provides that it “shall be enforced exclusively through ... private civil actions” that can be filed by anyone who is not a state employee.
It should be noted that Texas lawmakers did not actually succeed in writing a law that no Texas state official plays a role in enforcing. The plaintiffs in Jackson sued a Texas state judge who would hear lawsuits brought under SB 8, as well as the clerk of a Texas court charged with moving these cases through the courts. If Young means anything, these plaintiffs should have been allowed to move forward with their federal lawsuit.
But Gorsuch’s majority opinion in Jackson holds that these suits against Texas state judges and clerks may not proceed. That means there’s no way to obtain a federal court order halting SB 8.
In fairness, an abortion provider could have conceivably waited until they were sued in Texas state court for violating SB 8, and then argued that SB 8 violates Roe v. Wade in state court. But even if Roe were still good law, this defense is not adequate to protect abortion providers’ rights.
That’s because SB 8 doesn’t simply allow any person who is not employed by the state of Texas to sue an alleged abortion provider, it also permits a victorious plaintiff to collect a bounty of at least $10,000 from the provider. There is no upper limit to this bounty, and an alleged abortion provider who successfully defends against an SB 8 lawsuit can still be sued by other individuals hoping to collect the bounty.
Anyone suspected of performing an abortion that violates SB 8 could be hit by hundreds or even thousands of lawsuits. And they would either have to hire an army of lawyers to defend against these lawsuits or risk being ordered to pay a bounty that has no upper limit. Either option risks bankruptcy.
If taken seriously, moreover, Jackson permits states to use an SB 8-like structure to attack any constitutional right. A state might allow private bounty hunters to sue any journalist who publishes a news article that paints a Republican elected official in a negative light, or it might prohibit private citizens from criticizing the state’s governor. Shortly after Jackson was handed down, Democratic California Gov. Gavin Newsom threatened to sign a law permitting private bounty hunters to sue anyone who “manufactures, distributes, or sells an assault weapon.”
It remains to be seen whether this Court would apply its Jackson decision to a state law attacking the Second Amendment or other constitutional freedoms. But if the Court winds up applying Jackson only to constitutional rights that a majority of its members do not like, that’s an even worse outcome for the rule of law than if it applies Jackson’s anti-constitutional rule to every SB 8-style law that makes it through any state legislature.
The rule of law is the rule of equality; it means that the same rules must apply to liberal litigants as apply to conservatives.
The Supreme Court placed itself at the head of much of the executive branch of government
In its late June decision in West Virginia v. EPA, the Court effectively placed itself at the head of multiple executive branch agencies — above President Joe Biden — giving itself veto power over any regulation handed down by these agencies. In doing so, it fundamentally reshaped the US’s separation of powers.
Many federal laws lay out a broad overarching policy, then give an executive branch agency authority to implement that policy through binding regulations. West Virginia concerned a provision of the Clean Air Act, which requires certain power plants to use the “best system of emission reduction” that can be achieved with currently available technology, and then tasks the EPA with determining what the “best system” to reduce emissions may be at any given moment.
This way, as technology evolves to allow cleaner energy production, the EPA can issue new regulations requiring the energy industry to adopt these cleaner technologies, without Congress having to pass a whole new law.
West Virginia imposed an arbitrary new limit on EPA’s congressionally given authority, which appears nowhere in the Clean Air Act or in any other federal law. Under West Virginia, the EPA may not use its authority to encourage “generation shifting” — that is, requiring the energy industry to shift from particularly dirty methods of energy production, such as coal, and toward cleaner methods such as solar or natural gas. Instead, the EPA may only use its authority to require existing coal plants to install new devices or otherwise alter how they burn coal to produce energy.
To justify its policy judgment that generation shifting is not allowed, the Court’s six Republican appointees relied on something called the “major questions doctrine.” Under this doctrine, the Court explained in a 2014 opinion, “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Thus, if a majority of the Court deems a regulation to be too significant, it will strike it down unless Congress very explicitly authorized that particular regulation.
But the Court has never fully articulated what causes a regulation to be so significant that it runs afoul of this doctrine, and, in any event, the doctrine comes from nowhere.
The Constitution does not mention this doctrine. Nor does any federal law. The Court has, in effect, given itself the power to veto any regulation issued by the executive branch of government, even when Congress broadly authorized an executive branch agency to regulate.
Until very recently, the justices avoided such encroachments upon the executive’s domain. 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.” Until a few years ago, the Court’s decisions urged judges to defer to federal agencies on nearly all policy-related questions.
The reasons for this deference were twofold. As the Court explained in Chevron v. Natural Resources Defense Council (1984), agencies typically have much greater expertise in the areas that they regulate than the judiciary. And federal agencies also have far more democratic legitimacy than unelected judges who serve for life. “While agencies are not directly accountable to the people,” the Court said in Chevron, agencies answer to a president who is accountable to the voters. And so “it is entirely appropriate for this political branch of the Government to make such policy choices.”
But now the Court has given itself the power to declare any regulation that it does not like to be a sin against the “major questions doctrine,” and in so doing to veto that regulation. That doesn’t just introduce far too much arbitrariness into federal law. It’s also an extraordinary transfer of power away from an elected branch of government and toward a judiciary staffed by unaccountable judges.
The Court does not behave as though it is bound by legal texts
The Second Amendment is unusual in that it states explicitly what purpose it is supposed to advance. It provides that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” As the Supreme Court held in United States v. Miller (1939), the “obvious purpose” of the Second Amendment was to “render possible the effectiveness” of militias, and the amendment must be “interpreted and applied with that end in view.”
Nevertheless, the Supreme Court held last month, in New York State Rifle & Pistol Association v. Bruen, that “individual self-defense is ‘the central component’ of the Second Amendment right,” and that gun regulations must be judged according to whether they undercut this atextual purpose.
I don’t think much more needs to be said about Bruen (although if you want to read a longer critique of Justice Clarence Thomas’s majority opinion in this case, I wrote that piece here). The Second Amendment’s text is crystal clear about why that amendment exists. But six Republican appointees on the Supreme Court believe the Second Amendment should have a different purpose. So they decided that the text of the Constitution does not matter. That is the very hallmark of an arbitrary decision.
And it’s not the first time this Court has disregarded legal text to reach a certain end.
About a year ago, in Brnovich v. DNC (2021), the Supreme Court invented a bunch of new limits on the Voting Rights Act — the landmark law prohibiting race discrimination in elections — that appear nowhere in the law’s text. As Justice Elena Kagan wrote in dissent, Justice Samuel Alito’s majority opinion in Brnovich “mostly inhabits a law-free zone.” No lawyer could have read the text of the Voting Rights Act and predicted the specific limits the Court placed on voting rights in Brnovich.
Similar things could be said about most of the Court’s recent voting rights decisions. In Shelby County v. Holder (2013), for example, the Court neutralized a provision of the Voting Rights Act that requires states with a history of racist election practices to “preclear” any new voting rules with federal officials before those practices can take effect. Shelby County rested on a so-called “‘fundamental principle of equal sovereignty’ among the States” that appears nowhere in the Constitution,
Indeed, the Constitution’s text indicates that Congress has broad power to decide how to protect voting rights. Its 15th Amendment provides that states may not deny or abridge the right to vote “on account of race, color, or previous condition of servitude,” and it gives Congress the power “to enforce this article by appropriate legislation.”
This year, the Court took similar liberties with voting rights law, handing down at least three “shadow docket” decisions that abridged the right of Black Americans to cast a vote that actually matters. In Merrill v. Milligan and Ardoin v. Robinson, the Court reinstated racially gerrymandered maps in Alabama and Louisiana that effectively cut Black voters’ electoral power in those states in half. And in Wisconsin Legislature v. Wisconsin Elections Commission, the Court struck down state legislative maps due to concerns that they may give too much electoral power to Black voters.
The Court provided little or no explanation for why it reached these decisions, but the common theme is that a majority of the justices voted to reduce Black electoral power in all three cases. And the Court plans to hear the Merrill case again in October — most likely so that it can permanently weaken the Voting Rights Act’s safeguards against racial gerrymandering.
The Court claims the power to decide what happened in the past
One other theme from this recent term is worth mentioning. In three major constitutional cases involving three very different provisions of the Constitution, the Court ruled that judges must look to historical practice when interpreting the nation’s founding document.
In the Bruen guns case, the Court held that “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation” if it wishes to defend a gun law against a Second Amendment challenge. In Dobbs v. Jackson Women’s Health Organization, the case overruling Roe, the Court declared that rights that are not specifically mentioned in the Constitution may only be protected by courts if they are “deeply rooted in this Nation’s history and tradition.” And, in Kennedy v. Bremerton School District, the praying coach case, the Court decreed that the provision of the First Amendment requiring separation of church and state “must be interpreted by ‘reference to historical practices and understandings.’”
One glaring problem with this approach to constitutional law is that history is contested, and even expert historians frequently disagree about the right way to interpret historical events. So this new historicism inevitably invites arbitrary and unpredictable decision-making by judges.
In the Bruen case, for example, both Thomas’s majority opinion and Justice Stephen Breyer’s dissent waste a simply mind-numbing amount of ink recounting centuries of gun laws stretching at least as far back as a 1328 law providing that Englishmen may not “ride armed by night nor by day, in Fairs, Markets.” In the end, the six Republican appointees conclude that this multi-century tour of English and American gun laws supports the policy outcome preferred by the Republican Party; and the three Democratic appointees look at the exact same history and conclude that it supports the policy outcome preferred by the Democratic Party.
Similarly, while Alito’s Dobbs opinion concludes that a right to abortion was “entirely unknown in American law” before the latter part of the 20th century, the Roe opinion reached the opposite conclusion, concluding that the historical practice was to allow abortions prior to “quickening” — “the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy.” At least some actual historians have argued that Alito is wrong and Roe was correct about this point.
In any event, I, like Samuel Alito, am a lawyer and not a historian. I, like Clarence Thomas, do not have a doctorate in history or any formal training in how professional historians resolve historical debates. I do not claim any ability to resolve what people in 1789 might have thought about laws banning assault rifles that didn’t yet exist, or whether the generation that ratified the 14th Amendment would have believed that mifepristone should be legal.
I will note, however, that the entire judiciary is staffed by lawyers and not historians, and that judges typically decide cases based on briefs authored by lawyers who are not historians. So the Court’s penchant for turning constitutional cases into debates over history is likely to produce a lot of bad history and a lot of bad law. It’s a bit like demanding that the nation’s public health policy be determined by a panel made up entirely of physicists.
And that’s assuming that these amateur historians, now tasked with determining whether the 17th-century jurist Sir Matthew Hale would have supported a ban on machine guns, are acting in good faith. Which brings us back to the Court’s factually challenged decision in Kennedy.
Recall that, in Kennedy, six of the justices couldn’t tell the difference between a “short, private, personal prayer” and a public spectacle even after they were confronted with photographic proof that Coach Kennedy decided to make a public spectacle of himself. If these judges are so loose with the facts of a well-documented event that occurred in 2015, imagine the liberties they may take with truly contested events that occurred nearly 250 years ago.
This Court has no sense of humility
Not so long ago, the Court had a very good solution to the problem that the meaning of legal texts — not to mention historical events — is often contested even by subject-matter experts operating in good faith.
Cases like Mistretta and Chevron counseled judicial deference to federal agencies because it is better for agencies accountable to a democratic president to resolve contested policy questions than to leave these questions to the one unelected branch of government. Other cases, such as United States v. Carolene Products (1938), warned that courts should typically defer to Congress when it was unclear whether the Constitution permits a particular law to stand. The advantage of this approach is that the people can always vote out a Congress that passed a bad law, but if the Court hands down a bad decision, there is often no solution other than a constitutional amendment.
The current Court hasn’t simply abandoned these doctrines of deference, it appears to be replacing them with new doctrines that don’t so much constrain judicial power as require judges to rely on historical sources when striking down laws that those judges don’t like. In cases involving federal agencies, that can mean the new doctrines require judges to use the magic words “major question” whenever they want to veto a regulation.
And this new era of judicial self-empowerment is only just beginning.
Former Uber CEO Travis Kalanick. (photo: Siddiqui/Reuters)
In push for global expansion, company officials saw clashes with taxi cab workers as a way to win public sympathy, a trove of new documents shows
The San Francisco start-up was flush at the start of 2016, valued by investors at more than $50 billion, and was racing to expand into Africa, India and Asia. But Uber’s first international outpost — the French capital — had become the center of a bloody battle over the company’s ambition, a trove of documents from inside the corporation shows.
In the previous year, more than 80 Uber drivers had been physically attacked across Europe, and dozens of their cars destroyed, in clashes with taxi drivers who were fearful of losing their livelihoods as Uber’s low fares upended their industry. When protests against the company erupted in Paris, managers began working from an unmarked office and for safety reasons were ordered not to wear Uber-branded clothing in public, the documents show.
In a series of text messages on Jan. 29, 2016, Uber’s then-chief executive, Travis Kalanick, pushed his top lieutenants to mount a counterprotest. Kalanick wanted a peaceful sit-in or march in the city’s center. “Civil disobedience” “15,000 drivers” “50,000 riders,” he wrote in a burst of unpolished, often abbreviated messages. One executive in response raised concern “about taxi violence against” Uber drivers, and another said the company could “look at effective civil disobedience and at the same time keep folks safe.”
Kalanick shot back, saying that if the crowd was big enough, Uber drivers would be safe. And if clashes did occur, he appeared to suggest, that could benefit Uber, too:
“I think it’s worth it,” the chief executive wrote. “Violence guarantee success.”
The text exchange is among more than 124,000 company documents obtained by the Guardian and shared with the International Consortium of Investigative Journalists, a nonprofit newsroom in Washington that helped lead an examination of those records. Reporters from The Washington Post and more than 40 other news organizations around the world collaborated over four months to mine the trove of corporate emails, instant messages, company presentations, briefing papers, invoices and other documents. The documents provide a vivid, insider account of how from 2013 to 2017, Uber used bare-knuckle tactics to expand rapidly around the globe as it became one of the most-used transportation companies on the planet.
The company launched operations on four continents in rapid succession, often without seeking licenses to operate as a taxi and livery service, casting itself as merely a technology platform that connected willing passengers and drivers. To try to rewrite laws to recognize its position, Uber exported sophisticated American lobbying methods, the documents show, and it leveraged violence against its drivers in its efforts to win sympathy from regulators and the public.
In some instances, when drivers were attacked, Uber executives pivoted quickly to capitalize, the documents show. If a driver had been stabbed or beaten, or bricks had been thrown at his car, company officials behind the scenes provided details to the media if they thought the violence would result in negative attention for the taxi industry, the communications show. Uber would simultaneously activate its lobbyists, using attacks on drivers to secure meetings with politicians and push for regulatory changes, the documents show.
In the case of the demonstration in Paris, Kalanick and Uber managers helped arrange for a public show of support for the company at a time when taxi drivers were already clashing with police over Uber’s growing presence in the country. The night after the counterprotest in the city’s center, police said they intervened to prevent serious injuries as some 50 taxi drivers clashed with Uber drivers on the outskirts of Paris.
Two former Uber executives who spoke on the condition of anonymity said that company officials saw potential utility in the violent clashes and sought to capitalize on such incidents for public relations and political benefit. One said that the company would have been foolish not to do so. “Why can’t we be as fierce competitors as they are, so long as we are doing it in a reasonably legal way?” the person asked.
The other former executive, who had knowledge of Kalanick’s push for the Paris counterprotest, said the episode fit a pattern. “It was considered as beneficial to weaponize Uber drivers in this way, to get them to stand up for what they wanted — and of course, that served Uber’s purposes,” the former executive said.
In response to questions from The Post, Jill Hazelbaker, Uber’s senior vice president for marketing and public affairs, acknowledged past mistakes in the company’s treatment of drivers, especially under Kalanick, who was forced out as chief executive by investors in 2017. But she said no one, including Kalanick, wanted violence against Uber drivers.
“There is much our former CEO said nearly a decade ago that we would certainly not condone today,” she wrote. “But one thing we do know and feel strongly about is that no one at Uber has ever been happy about violence against a driver.”
Devon Spurgeon, a spokeswoman for Kalanick, said in a statement to The Post that any suggestion he acted inappropriately was false. “Mr. Kalanick never suggested that Uber should take advantage of violence at the expense of driver safety,” the statement read.
It said the company’s expansion initiatives were “led by over a hundred leaders in dozens of countries” and were carried out “with the full approval of Uber’s robust legal, policy, and compliance groups.” It continued: “Uber became a serious competitor in an industry where competition had been historically outlawed. As a natural and foreseeable result, entrenched industry interests all over the world fought to prevent the much-needed development of the transportation industry.”
The documents shed new light on how Uber’s arrival in Paris and around the world drove taxi drivers to desperation. Uber burned through investor money, suddenly and radically altering the ride-hailing market with artificially low fares when it entered a new foreign city, especially in Europe, where some of the most violent protests unfolded. In Madrid, the documents show, the company at one point was paying incentives of $17.50 an hour to each driver — accounting for almost two-thirds of their pay. In Hamburg, Uber drivers would have made $2.20 per hour under market conditions, minus a small commission, but the company paid each driver an additional $15 per hour — giving away rides almost for free.
Uber was spending heavily to influence the levers of power in countries it entered. Globally, the company’s budget for policy and communications work was $90 million in 2016, according to one draft budget document. Uber confirmed that the figure was accurate and that about 45 percent went to public affairs work overseas. To press its case with foreign governments, the company was also spending heavily to hire big names such as David Plouffe, a senior White House adviser under President Barack Obama.
As it operated in some countries despite court orders to desist, Uber maintained a 24-hour, multicountry emergency-response system that was used to keep company information out of the hands of investigating authorities, the documents show. The “kill switch,” as the company’s chief executive and others called it, was used at least a dozen times to sever connections to Uber’s internal computer networks as investigators moved in, sometimes with employees using stall tactics to keep detectives away from screens until they went dark, records show.
Hazelbaker said Uber does not employ such tactics today. She said “mistakes” made under Kalanick led five years ago to “one of the most infamous reckonings in the history of corporate America. That reckoning led to an enormous amount of public scrutiny, a number of high-profile lawsuits, multiple government investigations, and the termination of several senior executives. It’s also exactly why Uber hired a new CEO, Dara Khosrowshahi, who was tasked with transforming every aspect of how Uber operates.”
“We have not and will not make excuses for past behavior that is clearly not in line with our present values. Instead, we ask the public to judge us by what we’ve done over the last five years and what we will do in the years to come,” Hazelbaker said.
The statement provided by Kalanick’s spokeswoman said there are legitimate business purposes for companies operating overseas to use tools to restrict access to their computer networks, including protecting “intellectual property and the privacy of their customer,” as well as ensuring “due process rights are respected in the event of an extrajudicial raid.” It continued, “These fail-safe protocols do not delete any data or information and all decisions about their use involved, were vetted by, and were approved by Uber’s legal and regulatory departments.”
Plouffe said in a statement that Uber and governments had to find a way forward in a legal landscape that was at times unsettled. But Plouffe said that, internally, he sometimes protested the company tactics.
“During my time at Uber, there was a very public, global and sometimes fierce debate about how and whether ridesharing should be regulated,” Plouffe said. “Sometimes those debates and negotiations were straightforward, sometimes they were more challenging, and sometimes there were people within the company who wanted to go too far. I did my best to object when I thought lines would be crossed — sometimes with success, sometimes not.”
Today, Uber has abandoned its ambitions to dominate markets such as Germany and India. It is winding down its operations in Russia and has pulled out of China altogether. In some countries, Uber has begun to work with the taxi industry it couldn’t replace, allowing passengers to book cab rides on its app.
Nonetheless, Uber is growing. The company operates in 71 countries and books some 19 million trips over its app each day — a testament to its convenience for customers and to the weakness the company rightly identified in the taxi industry’s ability to meet demand.
In the wake of that success are altered lives and livelihoods. Taxi drivers from Cape Town to Connecticut have been plunged into financial hardship, according to records and interviews, strapped by falling fares and in some cases encumbered by debt from mortgaged taxi licenses that have plummeted in value. As the Uber subsidies waned, many of its drivers also have struggled to make ends meet. From New York to New Delhi, a handful of taxi and Uber drivers have died by suicide, citing deep debt and disgust with the company.
Moments of candor tucked in the gigabytes of leaked internal records show that some Uber executives knew early on that the phone app was on a collision course with hard realities.
“Get some sleep when you can,” the company’s head of communications, Nairi Hourdajian, wrote to one of the company’s top European lobbyists in December 2014. “Remember that everything is not in your control, and that sometimes we have problems because, well, we’re just f------ illegal.”
Hourdajian declined to comment.
‘Embrace the chaos’
In the 15 years after he dropped out of UCLA in 1998 to start a file-sharing company, Kalanick knew only the scrappy world of Silicon Valley start-ups. He went without a paycheck for years at a time, living with his parents and putting everything he had into one venture after another, each seeking to strike it big by using computers to disrupt an antiquated market. After launching Uber in San Francisco in 2010, Kalanick enjoyed increasing celebrity and wealth, and millions in seed funding was ballooning into what would eventually be billions in venture capital. But he could not shake the start-up mind-set, the sense that he was the challenger taking on Goliath.
“I’m still the David,” Kalanick told an audience at a tech conference in 2014. “The opponent is an a--h--- named Taxi,” he said. “Nobody likes him, he’s not a very nice character,” he said, adding that “we have to bring out the truth about how dark, and how dangerous and evil the taxi side of things is.”
Domestically, Uber had faced pushback from taxi unions, and challenges from other start-up ride-hailing apps, not the least of which was Lyft. Kalanick recognized that feuding with up-and-coming competitors could quickly become a race to the bottom, to outsubsidize riders’ fares. To keep ahead, he sought to push Uber into new markets where its prime adversary would be the legacy taxi business.
Kalanick set a goal of operating in 500 cities worldwide by 2017. In some of those places, there were no laws governing Uber’s business model, and cities embraced it. But in many others — as had been the case across much of the United States — the laws were complex and unsettled, and the question of how they applied to Uber and similar companies was in dispute.
In early 2014, the company heavily promoted the hashtag #UberEverywhere, highlighting dozens of cities worldwide where it had launched operations.
In a memo to Uber managers in India that August, Allen Penn, whom Kalanick had tapped to lead Uber’s expansion across Southeast Asia, summed up his view of the company’s approach: “Embrace the chaos.” The company had started there with a luxury-car offering but was drawing objections from regulators as it pressed into what was expected to be a much bigger market of low-cost ride hailing.
“We will likely have both local and national issues in almost every city in India for the rest of your tenure at Uber … so get used to this,” Penn said. “We will generally stall, be unresponsive, and often say no to what they want. This is how we operate and it’s nearly always best.”
To be clear, Penn wrote, echoing his boss, Uber’s troubles were the fault of the taxi industry and jealous upstarts: “Competitors apply this pressure to govts to f--- with us because they want to disrupt our business growth.”
Penn did not respond to emails and messages seeking comment.
It wasn’t just India and France. Taxi drivers on three continents were protesting during the summer of 2014, calling on officials to clamp down on Uber’s ride hailing for allegedly violating local laws. Authorities from Thailand to the Netherlands were investigating. In Germany, courts in Hamburg and Berlin were asked to decide if Uber was legal. Frank Horch, Hamburg’s senator for economic affairs, said in an interview on Aug. 11 that he wanted to ban Uber for not having permits to operate.
Inside Uber, Horch’s comments drew immediate attention. A network of employees monitored threats and comments made about the company around the clock. Uber’s communications teams had built 89 databases, spanning five continents and containing a combined 2,000 names of people the company saw as threats or points of opportunity for influence or lobbying, according to the documents.
In response to the German lawmaker’s comment, an Uber lobbyist wrote: “Horch needs neutralizing politically as well as in media terms.”
Uber campaign
With investors, including Google, voicing concerns, Kalanick set in motion a newly focused effort to win over politicians needed to rewrite laws around the globe to facilitate Uber’s operations. He announced on Aug. 19, 2014, that the company was hiring a campaign manager with name recognition among leaders worldwide — Plouffe, who had led Obama’s 2008 presidential campaign. Kalanick boasted that Plouffe would be senior vice president of policy and strategy and Uber’s “field general,” in charge of messaging and beating the “big taxi cartel.”
Plouffe was more diplomatic, writing on the company’s website that Uber had a chance to be a “once in a decade, if not once in a generation company,” and telling Politico his job would be to “change the point of view of established politicians.”
Plouffe began promoting positive aspects of the company. Driving for money gave people freedom and flexibility to make extra cash, he said. The online app connected neighborhoods that were underserved by taxis. Sober Uber drivers would mean safer roadways, as drunk drivers would be kept off the road at night. If Uber were broadly used, people wouldn’t need to own cars at all, reducing roadway congestion and emissions.
Plouffe’s staff began coordinating with Jim Messina, Obama’s former deputy White House chief of staff, records show. Messina was already on board as an Uber consultant.
A spokesman for Messina said in a statement to The Post that Uber was one of many companies Messina advised over the past decade. His work for company executives “involved helping them understand the political landscape in certain European countries where the company was seeking to grow its business,” the statement said.
Plouffe was also enmeshed in high-stakes regulatory fights in dozens of countries. “URGENT Berlin,” read the subject of an October 2014 email relaying news that Uber had received a cease-and-desist letter and was facing fines of $25,000 per day. Soon, emails from Plouffe’s aides and others in the company were going out to officials from Berlin to Brazil seeking to set up meetings to head off regulatory actions. If Plouffe’s name wasn’t immediately recognizable, Uber staffers left little doubt about their negotiator’s calling card in many of the messages: “Plouffe (Obama White House).”
Plouffe was also soon exposed to the depths of the company’s struggles with regulators and police, the documents show.
In November 2014, he was copied on an email with the subject line “Re: Kill Paris access now.” The forwarded message recounted how officers from France’s General Directorate for Competition Policy, Consumer Affairs and Fraud Control had just raided Uber’s Paris location and company officials had shut down access to company data. Plouffe responded, inquiring about the authorities who raided the company. “They report to Macron, correct?” he wrote, referring to French President Emmanuel Macron, then the economic minister.
Plouffe did not provide detailed responses to The Post’s questions. He did dispute that he had traded on his name recognition from working for Obama to advance Uber’s goals.
“Let me tell you, you get in the room with a transportation minister, I don’t care where it is, state capital, city council, European capital, African country, they don’t care what I or anyone else did before,” he said, adding that the negotiations “tended to get very specific about a whole set of issues around ride-sharing.”
By December 2014, Plouffe and Uber were facing a new crisis. A woman who hailed an Uber to take her home in New Delhi was raped by a driver who had a history of sexual assault allegations. The company initially cast some blame on the Indian government for failing to mandate background checks on drivers.
Facing public outrage and a suspension by Indian authorities, Uber said it would conduct stricter background checks on all drivers in the country. But the fallout did not end there.
Uber’s hoped-for year-end headlines about the speed of its global expansion instead read like a rap sheet: Uber offices in Bangalore, India and Chongqing, China were raided by authorities. In Bangkok and Madrid, the company was served with orders to cease operations. And in South Korea, authorities issued an indictment for Kalanick’s arrest, for allegedly running an illegal taxi ring. A headline on NBC News read: “Uber’s Wild 2014: Can Lawsuits and Protests Bring it Down?”
‘Keep the violence narrative going’
By the start of 2015, discussions were intensifying inside Uber over how to highlight violence against its drivers to win sympathy from the public and government officials, documents show.
“We need to use this in our favour,” Uber lobbyist Cristian Samoilovich in Amsterdam wrote to a colleague in March of that year, after an adviser to the European Commission wrote on Facebook that an Uber he was in had been attacked by a gang of taxi drivers in Brussels. At the time, Brussels officials were considering changing ride-hailing laws to legalize rides booked over smartphones.
That same week, taxi drivers in the Netherlands were protesting to demand that authorities enforce a court ruling from three months earlier that UberPop, the company’s service using nonprofessional drivers, was illegal and punishable by fines of up to 100,000 euros per day. Four Uber drivers were attacked in one night. In one of those incidents, masked men surrounded an Uber car and held a weapon to the driver’s throat while taking his license plate and slashing his tires. In another, an Uber driver was “seriously injured,” according to the documents.
Niek Van Leeuwen, the company’s general manager for Belgium, the Netherlands and Luxembourg, recounted the deteriorating situation in a March 11, 2015, email to Kalanick, Plouffe and others. The company’s response plan involved pushing the story of violence to try to get politicians to speak out against it, “while dragging out the enforcement process as long as possible,” Van Leeuwen wrote, referring to the court-ordered fines and the possibility that authorities might take other action to stop Uber from operating.
Days later, van Leeuwen provided an update: “police reports on violence have been shared with De Telegraaf newspaper and will be published without our fingerprint on the front page tomorrow.”
Company lawyers were also drafting a proposed emergency law change, he wrote. Van Leeuwen wanted to wait for the right moment to present it to lawmakers. “We keep the violence narrative going for a few days, before we offer the solution,” he wrote on March 16.
Mark MacGann, Uber’s head of public policy for Europe, the Middle East and Africa, replied the next day with praise for the publicity the violence story had received: “Excellent work. This is exactly what we wanted and the timing is perfect.”
MacGann forwarded images of the news coverage to his boss and to Plouffe that same day, writing: “Step one in the campaign, get the media to talk about Taxi violence against” Uber drivers.
More than 10 additional Uber drivers were attacked in the city over the next two nights. On March 19, Uber urged lawmakers to approve its emergency rule change allowing UberPop to operate legally, according to internal company communications. “We strongly condemn the use of violence and the damaging of vehicles of our drivers,” the company wrote to lawmakers. “Violence can never be the answer to innovation, and should not be a basis for regulation.”
Samoilovich told The Post he did not remember writing that the company should use the violence to its favor but remembered the confrontations. “I was of the opinion that politicians should take their responsibilities and regulate a hre zone and legal vacuum that was building up frustration and anger,” he wrote in an email.
Van Leeuwen did not respond to multiple requests for comment.
MacGann said in statement: “There is no excuse for how the company played with people’s lives. I am disgusted and ashamed that I was a party to the trivialisation of such violence.”
By mid-2015, attacks on Uber drivers had become so frequent that the documents show the company had set up an internal “Taxi intimidation Tracker,” the documents show. Uber had identified at least 80 physical attacks on its drivers, which had sent more than 10 people to the hospital.
“The reaction to Uber in Europe has seen some of the worst violence and sinister union opposition in our five year expansion to 58 countries and 6 continents,” MacGann wrote in July to a communications executive.
He ticked through the toll it had taken on drivers: “Dozens of cars destroyed, people deprived of what is often their most expensive, and only asset,” he wrote. “Increasing and credible intel of taxi entrapment and ambushing of Uber drivers.”
MacGann went on to describe the threats Uber managers were facing in Europe. Managers “frequently” required bodyguards when speaking in public, he wrote. One had around-the-clock protection, and another had a device with a panic button in case of a serious incident.
That July in Portugal, taxi drivers committed “acts of violence” against Uber drivers on three occasions, sending at least one to the hospital, Rui Bento, a general manager for Uber’s Portugal office, said in an email to colleagues. One of the country’s largest taxi associations, ANTRAL, had succeeded in getting a court to temporarily ban use of the Uber app. ANTRAL’s president, Florêncio Almeida, had spoken out against the ride-hailing service, which he considered illegal.
In his email, Bento said the company was “considering leaking” information about the attacks to local newspapers. The benefit, he wrote, would be to drive a story that “creates a clear link between the public declarations of violence of the president of ANTRAL and these actions (degrading their public image).”
In an emailed response, Yuri Fernandez, an Uber communications manager, proposed investigating Almeida’s background to “see if we have enough intel to make it sexy for Media.” It’s unclear whether Uber went through with investigating Almeida or planting stories about the attacks.
Bento and Fernandez did not respond to requests for comment from The Post.
In late January 2016, a Geneva taxi driver attacked an Uber driver with a screwdriver, nearly killing him, according to an email that Steve Salom, a general manager for Uber in Switzerland, sent his colleagues.
“Most importantly: the driver partner is fine,” Salom began the email, before kicking off a debate about what the company should do with the information about the attack.
“Do you have talking points to speak to it in the media or to politicians?” Uber policy staffer Maxime Drouineau asked, adding that the incident “happens really at the worst moment” for taxi drivers who opposed legalizing Uber in the country.
Salom later mentioned the attack during an interview with a Swiss publication, saying it was an example of how taxi drivers are acting on their fears about Uber’s expansion.
Drouineau declined to comment when reached by The Post.
Salom said he believed it was right to draw attention to the violence. “Uber drivers were beaten up a number of times, and threats by taxi drivers were happening and reported to us several times a day,” he wrote in an email. “I had team members that were threatened and I personally received a number of threats. By discussing such events with the press, we were trying to show drivers’ day-to-day reality as well as ours. … We believed that visibility on such events would provide balance and show another side of the story taxis were giving.”
In March 2016, on a tour of the Middle East, where Plouffe was introducing Uber executives to elites from Saudi Arabia and the United Arab Emirates, he was asked about the violence targeting Uber drivers. Plouffe acknowledged the violence and nodded to the belief that is spelled out in greater detail in the internal company documents: There was a potential upside.
“We have seen some violence around the world, but that usually ends up expediting regulatory engagement with the government,” he told a crowd at the American University in Cairo, according to a report by the Egyptian news organization Mada Masr. According to the news report, Plouffe added that riders and drivers are Uber’s “most important ally” to get regulation reform moving.
The battle for Paris
In Paris, the city where Kalanick claimed he had partly thought up the idea for Uber years earlier while looking for a cab on a winter night, the government’s stance on Uber had hardened by 2016.
In fact, the company was in a fight for survival there. Police had raided its Paris office. Two of its top officials had been charged with complicity in operating an illegal transportation service and briefly taken into custody. Government officials had repeatedly urged Uber to shut down UberPop, which had a base fare of just one euro, cheaper than any taxi in the city.
That year, the aggressive strategy Uber deployed in entering the French market had led to chaotic scenes across the country: Taxi drivers blocked vital intersections and airport access roads, chanting anti-Uber slogans as the black smoke of burning tires billowed around them. Tensions quickly escalated. Mobs of enraged taxi drivers chased their Uber competitors, stopping their cars and damaging or toppling some of them.
Emails and text messages from that period document the extent to which Uber’s executives were aware of the escalation.
Ahead of a major taxi protest in January 2016, Thibaud Simphal, then-Uber France’s general manager, shared “intel” with his colleagues that the demonstration would become “big and potentially violent.”
Uber took the threat so seriously that it abandoned its own premises the day of the protest, renting a nondescript office in the center of Paris, where it set up a guarded “situation room,” according to the documents. Other staffers were instructed to work from home or from cafes.
Early on the morning of Jan. 27, Simphal told colleagues that the team in Paris reported 53 incidents overnight, three of which were “relatively serious cases involving taxi violence including 1 badly damaged car and 2 beaten up drivers.” Though police were out in force, he wrote, “we’re afraid that some driver assaults will happen overnight.”
Two days later, when Kalanick pushed for a counterprotest, Rachel Whetstone, a senior communications executive, responded to him by noting that MacGann had raised concerns about violence against Uber drivers. “Unions being taken over by far right spoiling for a fight,” she wrote, adding in another text, “One to think through.”
MacGann then added that “extreme right thugs” had infiltrated some taxi protests, and that the company would have to keep people safe, probably by calling on contacts with the Paris police. “We’ll be smart,” he wrote.
Kalanick responded with the “violence guarantee success” text. In another message he added: “These guys must be resisted, no? Agreed that right place and setup must be thought out.”
Simphal texted MacGann and Pierre-Dimitri Gore-Coty, head of Western Europe at Uber. As the officials rushed to set up the counterprotest for Feb. 3, Simphal appeared to make light of the legal challenges the company faced, saying that “we have officially become pirates.”
MacGann wasn’t amused, particularly because Simphal and Gore-Coty were the two officials who had been charged by French authorities. “You both need to speak this morning to your personal lawyers so that you don’t screw your criminal case,” he responded.
Less than six months later, Simphal and Gore-Coty would be convicted of complicity in operating an illegal transportation service. At sentencing, they avoided jail time but were fined 20,000 euros and 30,000 euros, respectively. Uber was also found guilty of that offense and others and was fined 800,000 euros. Half of the fines were suspended.
After Kalanick was forced out, Uber said it welcomed being regulated and would work with governments in France and elsewhere to find compromises. The company has continued to appeal the 2016 verdicts, saying they raise troubling legal issues. The matter is now pending before the French Supreme Court.
Whetstone told The Post that she “consistently pushed back on Uber’s more aggressive business practices” and resigned after 18 months because of “significant, ongoing concerns about the company’s culture.”
In a statement, Simphal said he should have chosen his words at the time more carefully and did not wish violence on any of the company’s drivers. “In a context of confusion and violence, my words were sometimes hasty; but my intention was never to fuel violence,” Simphal wrote. “These crises as well as the trial I faced were very difficult experiences, but also real learnings that have taught me a lot.”
Reached for comment, Gore-Coty also expressed remorse, writing in an email: “I joined Uber nearly ten years ago, at the start of my career. I was young and inexperienced and too often took direction from superiors with questionable ethics. While I believe just as deeply in Uber’s potential to create positive change as I did on day one, I regret some of the tactics used to get regulatory reform for ride sharing in the early days. I have personally experienced the consequences of these decisions, including an ongoing trial in France.”
As Feb. 3, 2016, quickly neared, a group called AMT, which described itself as an association of non-taxi drivers, appeared to be arranging the protest. In public, AMT presented itself as an independent organization. But many drivers suspected Uber to be behind the group and its members.
AMT’s critics had good reason to be skeptical, the documents show. In internal messages, Uber executives described AMT as “our drivers union” and wrote that it would be “very useful for the next hours and weeks… ;)”. Uber executives said they were preparing a logo for AMT’s use, providing “political and media training” to the group’s leader and helping to coordinate the protest Kalanick had pushed for. In text messages, Simphal and others debate the time and location that was later promoted by AMT.
Uber’s role in helping to organize the protest was not reflected in its public communications. In a text on Jan. 31, Alexandre Quintard Kaigre, an Uber public-policy official in France, wrote to a colleague in French that Simphal “is aligned with our idea of Uber being the most absent” organization in the protest and communications in the days that followed.
AMT’s director at the time did not respond to a request for comment. Kaigre also did not comment when reached by The Post.
When the counterprotest got underway, there were far fewer than the “15,000 drivers” and “50,000 riders” Kalanick had hoped for in his texts days earlier. Only a few hundred drivers showed up, according to media reports at the time. After dark the next night, on the outskirts of the city, police intervened as taxi drivers and Uber-aligned protesters clashed.
The Rhode Island State House in Providence, R.I., is pictured on April 25, 2019. (photo: Lane Turner/The Boston Globe/Getty Images)
Progressive slates offer a state-level model for the left to overcome the stagnation of Biden’s presidency and the national Democratic Party.
The group, the Rhode Island Political Cooperative, is seeking to capitalize on the moment of weakness for conservative Democrats and backing 30 candidates in the state this cycle, for offices ranging from governor to state legislators. The group supports candidates who have committed to backing a Green New Deal, a $19 minimum wage, single-payer health care, and not taking money from lobbyists, fossil fuel companies, or corporate PACs.
“The left has been losing in states for 50 years,” organizer and Rhode Island Democratic gubernatorial candidate Matt Brown, of the cooperative, told The Intercept. “There are a lot of people on the left who have been resigned to that state for a while and are so used to the role of the left being pushing and pulling and pleading and pressuring bad governments to throw some crumbs to the people.”
The Co-op, as it is known, was formed in 2019 by state Senate candidate Jennifer Rourke — whose Republican opponent punched her last month at a protest following the Supreme Court’s decision to overturn Roe v. Wade — along with Brown and state Sen. Jeanine Calkin; the goal was to oust the state’s conservative Democratic leaders. In the 2020 cycle, the group elected 10 of its candidates and has since gained additional momentum following the assault against Rourke and several high-profile resignations within the state Democratic Party.
The Co-op is part of the Renew U.S. coalition, a progressive group that seeks to build local multiracial, working-class coalitions and scale them to establish governing majorities in states across the country in the near term. “One or two cycles, not 20 years,” Brown told The Intercept.
Brown is one of five candidates running for the Democratic gubernatorial nomination, including incumbent Gov. Dan McKee. Brown ran for the nomination in 2018 against then-governor and now-Secretary of Commerce Gina Raimondo, and got just under 40,000 votes to Raimondo’s 67,370. Two years later, Brown helped launch Renew, which backed more than 200 candidates in six states that cycle. The 129 Renew candidates who won across the country have since gone on to help pass legislation, like a bill passed last month in Massachusetts that allows undocumented immigrants to obtain a driver’s license and a modest Rhode Island climate justice bill that was signed into law last April.
This year, Brown is running again for the governor’s seat. And Renew is recruiting and backing 400 state and local candidates in Arizona, Connecticut, Georgia, Indiana, Maine, Massachusetts, Michigan, Minnesota, New Hampshire, North Carolina, and Vermont.
In Rhode Island, the Co-op has mounted the challenge at a time when the state Democratic Party, like the national party, is undergoing a major upheaval. Top officials, including the Democratic state Senate majority leader and state Senate Judiciary Committee chair, have announced their retirement in recent weeks. The party’s chief strategist, whom the Providence Journal has described as its de facto executive director, resigned late last month, less than three months before the upcoming September 13 primaries. Elections for governor and the state legislature could dramatically change the political balance in an election cycle where issues like abortion, guns, and the climate crisis are at their most urgent, and some of the party’s most conservative Democrats are being pushed to clarify their positions.
Democrats have long struggled to overcome the stranglehold that Republicans have on the majority of the country’s state legislatures. Republicans hold more than 54 percent of the country’s state legislative seats and fully control state government in 23 states, whereas Democrats have trifectas in 14.
And while Democrats control both the White House and Congress, Biden has abandoned several of his campaign promises on oil and gas drilling, student debt, and gun control, with conservative Democrats in the Senate blocking the bulk of his agenda. Republicans are poised to make major gains in the upcoming midterm elections.
Organizers like those involved in the Co-op see these problems as linked. With no compelling local message, Democrats lose state-level elections. Then with no powerbase or bench in the states, they are unable to win in national elections — or unable to get things done when they do win.
“This will build the pipeline for federal power. The way I put it is, members of Congress don’t go home and run for the state legislature, it’s the other way around,” Brown said. “So if we build multiracial, progressive power in 25, 30, 40 states over the course of this decade, we’re gonna have a pipeline of federal candidates for decades to come.”
Rhode Island, where conservative Democrats dominate the party’s majority and block popular legislation, is a microcosm of the problem — and it isn’t unique, said Dálida Rocha, the executive director of Renew. “We see that that is the case in a lot of states, where the Democrats are the majority and we’re still not getting the legislation that we need to get done to meet this urgent moment.”
Insurgent, grassroots slates have reshaped recent elections in other states: a progressive slate took over the Nevada Democratic Party last March, ousting acolytes of the machine built there by former Senate Majority Leader Harry Reid. In 2020, progressives seeking to oust establishment Democrats up and down the ballot in New Jersey put up the first organized challenge in recent memory to the state’s notoriously corrupt Democratic Party. This year in West Virginia, a new slate of candidates put together after more than six years of organizing took control of the state Democratic Party to oust its leadership and weaken the grip that conservative Democratic Sen. Joe Manchin has held on politics in the state.
As with Manchin, conservative Democrats in Rhode Island are facing stronger opposition. Rourke, who had challenged the incumbent in her race twice before and slowly chipped away at his lead, losing by 31 percentage points in 2018, and 16 points last cycle.
This year, unexpected events cleared Rourke’s path to a victory. Rourke’s Republican opponent, Jeann Lugo, a Providence police officer, dropped out of the race after video surfaced of him punching Rourke during a protest against the overturning of Roe v. Wade. Two days later, Rourke’s Democratic opponent, Senate Majority Leader Michael McCaffrey, announced he would not seek reelection after 28 years in office. McCaffrey and other Democratic leaders in the state, which has been solidly blue since 2014 but is home to some of the country’s most staunchly conservative and anti-abortion Democrats, had faced criticism in the past for failing to codify Roe and again more recently by their opponents in the wake of the decision to end protections for abortions.
Rourke will face Michael Carreiro, the president of the Warwick firefighters local union, in the September Democratic primary. Carreiro announced his campaign late last month and filed paperwork on Tuesday with the state board of elections. Until recently, his Facebook page featured a photo of him in blackface, dressed, per the caption, as James Brown. Some time since last month, the photo was longer publicly viewable on the page. (Carreiro did not respond to a request for comment.) Before Carreiro joined the race, Rourke was running unopposed and set to face Lugo, the former Republican candidate, in November.
The Co-op hopes to build this year on its success last cycle, when it won eight seats in the state legislature and two on the city council, and ousted several top Democrats including the powerful chair of the state Senate Finance Committee, former state Sen. William Conley Jr. The legislature has since passed bills that raised the minimum wage to $15 and legalized recreational marijuana with automatic expungement of past convictions.
“They immediately had to cave on things that they had been white-knuckling for a while,” said state Sen. Cynthia Mendes, who ousted Conley Jr. in 2020 by 23 points as part of the Co-op’s slate. “If this can happen with 10 people on the first try, [who] never did this before, what can happen now?”
Last Friday, the Co-op announced that three new candidates had joined its slate: Senate candidate Jenny Bui, a mother and first-generation Vietnamese American; House candidate and nurse Jackie Anderson; and Pawtucket City Council candidate and homeless outreach worker Nicole LeBoeuf. Bui is challenging an anti-abortion Republican; Anderson is challenging the Democratic state House Speaker; and LeBoeuf is running for one of three at-large seats on the city council, alongside two incumbents and at least one other candidate.
The model slates aren’t just concerned about winning seats in local and state elections; they’re testing theories of change that could help rebuild a Democratic Party that has struggled to define itself for the last seven years. They hope to chart a path forward for the left.
“Democrats, the left are kind of in a panic death spiral, politically,” Brown said, remarking on the party’s failure to field an adequate response to the rise of Donald Trump and the rightward lurch of the Republican Party.
“People are just panicked. And so, in that panic, are just consumed only with Washington,” he said. “What we’re saying is, yes, we have to fight it out as best we can to win power in Washington. But given the level of crises, given that our democracy is at risk, given that the planet is at risk, given the suffering that people are going through in this country, we have to be able to do two things at once now. We have to do federal politics, and we finally have to do what we should have done a long time ago, which is deep state politics.”
Medical marijuana plants grow at LifeLine Labs in Cottage Grove, Minn., June 17, 2015. (photo: Jim Mone/AP)
“That doesn’t legalize marijuana?” Republican Sen. Jim Abeler asked after state lawmakers OK’d products with hemp-derived THC.
A law took effect earlier this month allowing anyone at least 21 years old to purchase edibles or beverages with up to 5 milligrams of hemp-derived THC per serving. Those relatively low potency products with up to 50 milligrams per package still pack enough of a psychoactive punch to get most users plenty high.
But some key lawmakers who approved the significant change in drug policy were seemingly confused about what they’d done.
Marijuana legalization has been a divisive issue in the Minnesota Legislature for years. The Democratic-controlled House passed legislation last year that would allow anyone at least 21 years old to legally purchase and possess the drug, but the GOP-controlled Senate has remained staunchly opposed to recreational legalization. Yet a legalization provision was adopted during a marathon conference committee meeting in May without debate or objection.
“That doesn’t legalize marijuana?” Sen. Jim Abeler, the Republican chair of the Senate Human Services Reform Finance and Policy Committee, asked after it was adopted by a voice vote. “We didn’t just do that?”
Democratic Rep. Tina Liebling took the opportunity to needle her GOP counterpart: “Are you kidding? Of course you have.”
Liebling quickly made it clear that the provision that sparked confusion wouldn’t actually legalize weed in the state. “We’ll do that next,” she joked.
Abeler referred questions to a Senate GOP spokesperson who did not respond to a request for comment.
However, he told the Minneapolis-based Star Tribune that he thought the provision would only legalize Delta-8 THC products, which were already widely sold in Minnesota, not Delta-9 THC products that remain illegal on the federal level. Delta-8 products occupy a hazy legal status under federal law because they’re derived from hemp with less than 0.3 percent THC, which was legalized by Congress under the 2018 farm bill.
“I thought we were doing a technical fix, and it winded up having a broader impact than I expected,” Abeler told the newspaper.
Creating guardrails
It all underscores the confusion around how the state ultimately loosened its restrictions on cannabis.
Democrats say they were fully aware of what the hemp legislation would do. They point out that the bill received three committee hearings in the Democratic-controlled House. In addition, they argue that it’s a much-needed public health improvement, given that there were already intoxicating Delta-8 products being sold across the state without any rules or regulatory oversight. Such products have proliferated across the country over the last two years, particularly flourishing in states that still have tough restrictions on marijuana use.
“The substances were being sold all over the place anyway,” Liebling said in an interview. “My main interest … was to put some guardrails around it.”
Legalization advocates who worked on the bill back the assertion that it received significant vetting before it was added to a massive omnibus health care bill at the end of the legislative session.
“There was not enough clarity in our laws to make sure that consumers purchasing these products were safe,” said Maren Schroeder, policy director for Sensible Change Minnesota, which supports marijuana legalization. “We talked a lot about what is intoxicating and what is non-intoxicating, and really needing to quantify that in some way, shape or form.”
But Senate Republicans are far less willing to discuss the bill and whether they realized it would permit intoxicating cannabis products.
GOP Sens. Michelle Benson, who chairs the Senate Human Services Licensing Policy Committee, and Mark Koran, a key player on cannabis issues, also referred questions to the caucus spokesperson.
House Majority Leader Ryan Winkler, a Democrat who has championed marijuana legalization, said Abeler and other GOP lawmakers should have been fully aware of the ramifications of the hemp provision.
“Either he was not paying a lot of attention or asking very good questions, or he knew and just doesn’t want to have his fingerprints on it,” Winkler said in an interview. “I’m not sure which is the case.”
Kevin Sabet, CEO of the anti-legalization group Smart Approaches to Marijuana, called it an “embarrassing blunder” for Minnesota.
“I’m not sure if it was on purpose, but if so then it is very sneaky and likely unconstitutional,” he said in an email. “We will be working to amend this. We’re already hearing reports of parents worried about kids accidentally ingesting it.”
‘Lines out the door’
Consumers appear to be enthusiastic about the new market for intoxicating edibles and beverages, and undoing the change would likely prove highly unpopular given the strong support for marijuana legalization both in Minnesota and nationwide.
Shawn Weber, managing director of Crested River Cannabis Company in rural southwestern Minnesota, said his business hasn’t seen a big uptick in retail sales since the law took effect, pointing out that they were already selling more potent Delta-8 products than are permitted under the new law. However, wholesale business has picked up considerably.
“Other retail locations have literally sold out. They’ve had lines out the door,” Weber said. “In the bigger towns there was a bigger consumer rush to the stores. All of our customers in our local area knew that these products already existed.”
Tom Whisenand, CEO of Minneapolis-based Indeed Brewing Company, points out that his company previously produced a non-intoxicating seltzer called Lull with 10 milligrams of CBD. However, it halted production last year after being told by the Minnesota Department of Agriculture that the product was illegal.
“We knew we were kind of in a gray area then with that beverage, because CBD was not explicitly legal in Minnesota,” Whisenand said. “But there were tons of products being sold.”
The company now hopes to take advantage of the new law and have a reformulated cannabis beverage on the market by Aug. 1, this time with 2 milligrams each of THC and CBD. Whisenand said Lull was very popular, and he expects there to be significant demand for the new product, which is called Two Good.
“We certainly have enough capacity to hit expected initial demand,” he said. “It depends on how popular it is.”
A pair of Spix's macaws in an aviary in Schöeneiche, eastern Germany. The species disappeared from the wild more than 20 years ago. (photo: DPA/AFP/Getty Images)
The Spix macaw, a bird that had once vanished in the wild, is now thriving in its South American homeland after a successful breeding programme
But thanks to a remarkable international rescue project, Spix’s macaws – with their grey heads and vivid blue plumage – have made a stunning comeback. A flock now soars freely over its old homeland in Brazil after being released there a month ago. Later this year, conservationists plan to release more birds, and hope the parrots will start breeding in the wild next spring.
“The project is going extremely well,” said biologist Tom White, of the US Fish and Wildlife Service and a technical adviser to the rescue project. “It’s almost a month since we released the birds and all of them have survived.
“They are acting as a flock; they are staying in the vicinity of their release and they are beginning to sample local vegetation. It’s going as well as it possibly could.”
The Spix’s macaw – named in honour of the German biologist Johann Baptist Ritter von Spix, who first collected a specimen in 1819 – became the victim of a double environmental whammy that began in the 19th century. As farming spread across South America, the parrot’s homeland – in an area of shrubland and thorn forest known as the Caatinga in north-east Brazil – was overgrazed by goats and other livestock. The land was severely eroded, and macaw numbers dropped as their habitat was destroyed.
“That loss in numbers had a very unfortunate secondary effect,” said White. “As soon as an animal becomes endangered, collectors want to have one. And that is what happened to the Spix’s macaw. They became rare and, as a result, unscrupulous individuals decided to try to take the few that remained in the wild for their private collections.”
The future for the species looked dismal until the bird’s fortunes were revived by, of all things, an animated film. Rio, the story of a domesticated male Spix’s macaw called Blu, who is taken to Rio de Janeiro to mate with a free-spirited female, Jewel, was released in 2011. The film, and its sequel, Rio 2, earned almost $1bn. Crucially, the films revealed the threat facing the species to a global audience.
Later, in 2018, Michel Temer, then president of Brazil, signed a decree that established a macaw wildlife refuge in the north-eastern state of Bahia, while a breeding programme, using parrots from private collections, was established at various centres across the world. A key player in this collaboration was the German-based organisation the Association for the Conservation of Threatened Parrots.
The growing sophistication of modern genetics also played an important role in saving the Spix’s macaw, said White.
“When you are trying to build up numbers of animals from a very small surviving population, inbreeding can be a real problem. However, the techniques used to check the genetic status of these birds were very, very sophisticated and allowed breeders to match birds very carefully.
“Artificial insemination has also made it easier to produce offspring from birds.”
As a result, several hundred Spix’s macaws have now been bred in captivity, and eight of these were taken in June to Bahia for release. And they had company: along with the Spix’s macaws, eight Illiger’s macaws were also let loose on 11 June.
White said: “The Spix’s macaws that we now possess are the end result of generations of captive breeding, and that will have taken the edge off some of their instinctive survival skills.
“However, by mixing them with Illiger’s macaws – who were basically just wild birds brought briefly into captivity – the Spix’s benefit by associating with a native species that is sharp and alert, and can show them where they get food and alert them to potential predators.”
The birds, each tagged with radio transmitters, are now being monitored carefully. “We will release another 12 Spix’s macaws in December if everything goes well,” added White.
“These birds will all be of reproductive age. We have also ensured there are several nest cavities, some natural and artificial, in the area to encourage the birds to begin mating next year and eventually establish breeding territories in the area.
“It’s ambitious but so far things are going well.”
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