MARY REICHARD, HOST: Good morning!
The Supreme Court considers the difference between credible testimony and persuasive testimony. The lawyer takes a unique approach.
NICK EICHER, HOST: That’s how the cookie crumbles today on Legal Docket.
Also the Monday Moneybeat: setting policy in the post-Covid Biden administration. Next up: raising taxes.
Plus the WORLD History Book. 115 years ago Lewis and Clark began their journey back to Missouri.
REICHARD: It’s Monday, March 22nd. This is The World and Everything in It from listener-supported WORLD Radio. I’m Mary Reichard.
EICHER: And I’m Nick Eicher. Good morning!
REICHARD: Time now for the news. Here’s Kent Covington.
KENT COVINGTON, NEWS ANCHOR: Mayorkas: The border is secure » Homeland Security chief Alejandro Mayokas made the rounds on several Sunday talk shows to assure the public the situation on the southern border is under control.
MAYORKAS: The border is secure. The border is closed. We’ve been unequivocal in that, and we are operationalizing our processes, executing our plans…
Officials are scrambling to build up capacity to care for some 14,000 migrants now in federal custody—with many more on the way.
Mayorkas concedes there are problems, and for that he again blamed the previous administration.
MAYORKAS: What we are seeing is the result of President Trump’s dismantlement of the safe and orderly immigration processes…
He also said the Biden administration is sending the message loud and clear to migrants: do not come to the border right now.
But Republicans say those words ring hollow. Ohio Sen. Rob Portman…
PORTMAN: The problem here is the Biden administration on day one made about a half-dozen changes, and since then have made several more, that encourage more people to come to the border, and they didn’t put anything in place to deal with it.
Mayorkas said when minors show up at the border, we have a responsibility to care for them.
But GOP Congressman Michael McCaul said Biden’s border policies are creating a much worse human trafficking crisis.
MCCAUL: The traffickers know they can take children from Central America, extort the families, exploit the children on the dangerous journey to the United States.
He called on President Biden to return to a policy of requiring asylum seekers to apply in their country of origin or in Mexico.
Report: Iran made threats against U.S. base, Army general » Iran has made threats to attack a U.S. general and an Army base in Washington D.C. That according to a new report from the Associated Press, citing two senior intelligence officials.
The report said the NSA intercepted communications in January that showed Iran’s Revolutionary Guard discussed mounting “USS Cole-style attacks” against Fort McNair.
The intel also revealed threats to kill Gen. Joseph M. Martin and plans to infiltrate and surveil the base. Fort McNair, one of the oldest bases in the country, is Martin’s official residence.
The Army has increased patrols along the shoreline, put up more restricted area signs and placed cameras to monitor the Washington Channel.
U.S. Defense Secretary arrives in Afghanistan » Defense Secretary Lloyd Austin arrived in Kabul on Sunday on his first trip to Afghanistan as Pentagon chief. He met with senior Afghan officials, including President Ashraf Ghani.
His visit comes amid swirling questions about how long American troops will stay in the country and Austin told reporters:
AUSTIN: It’s obvious that the level of violence remains pretty high in the country. We would really like to see that violence come down, and I think if it does come down, it can begin to set the conditions for some really fruitful diplomatic work.
The Trump administration struck a deal with the Taliban for a May 1st withdrawal of U.S. troops. President Biden said last week that it will be “tough” to meet that deadline.
But the Taliban is threatening consequences if U.S. troops aren’t gone by May 1st. A Taliban official said if the Pentagon misses the deadline, that would be a violation of the agreement and—quote—“Their violation will have a reaction.”
Demonstrators call for justice after Georgia shootings » Demonstrators gathered near the Georgia state Capitol over the weekend to demand justice for the victims in a recent string of shootings at massage parlors in the Atlanta area.
They gathered on Saturday, one day after President Biden and Vice President Kamala Harris spoke in Atlanta.
BIDEN: Another example of the public health crisis of gun violence in this country; eight people killed, seven women, six were of Asian descent.
A 21-year-old suspect confessed to the shootings, but he told police that the victim’s race was not a factor.
He claimed to have a sexual addiction that caused him to lash out at what he saw as sources of temptation. Police have said they’re still working to establish a motive. Prosecutors will then determine whether hate crimes charges are warranted.
Miami Beach cracks down on rowdy spring break crowds » Many resort areas in Florida are trying to rein in large spring break crowds. In Miami Beach, crowds got so out of hand that authorities had to call in SWAT teams on Saturday. Officers in bulletproof vests dispersed pepper spray balls to break up a rowdy crowd.
Thousands descended on South Beach, trashing restaurants and flooding the streets without masks or social distancing.
The city enacted a temporary emergency curfew from 8 p.m. til 6 a.m. South Beach Mayor Dan Gelber…
GELBER: We’re going to obviously have to always put public safety above all else.
A military style vehicle rolled down Ocean Drive during curfew hours as officials urged tourists to stay inside their hotels.
I’m Kent Covington.
Straight ahead: testimonial credibility.
Plus, the birth of a great American playwright.
This is The World and Everything in It.
MARY REICHARD, HOST: It’s Monday, March 22nd, 2021. Welcome back to another week of The World and Everything in It! Good morning to you. I’m Mary Reichard.
NICK EICHER, HOST: And I’m Nick Eicher. Today, the U.S. Supreme Court resumes oral arguments after the justices took a short break.
The plan is to finish up all arguments by the end of next month, April.
Now, if you’ve been listening each week since October—and stick with it—you’ll hear something about each oral argument the justices hear this term.
That’s our money-back guarantee. We cover them all.
REICHARD: Today, two oral arguments.
The underlying claims are quite harrowing in the first one, which is a consolidated case.
One man from Mexico and the other from China seek asylum in the United States. Each claims fear of persecution if returned to their home countries.
The man from Mexico has been in the United States for most of his life since the age of 8. He suffers from schizophrenia and says his life will be miserable in Mexico. Much of his family is here in the United States.
The man from China fears involuntary sterilization if he returns. He told immigration judges that in 2009, five Chinese officials entered his home and forced his wife to have an abortion. That was when China still had in place its one-child policy. The man tried to stop them from killing his child, and when he did, officers beat him, detained him, and deprived him of food and water for days.
EICHER: So those are the claims on the record.
Now, to show eligibility for asylum, the law places the burden of proof on the alien.
A word about that term—alien. It is a legal term and it refers to any individual who does not have U.S. citizenship and is not a U.S. national. The two men are aliens in the eyes of the courts.
Immigration judges were not convinced by the testimony of the aliens based upon conflicting evidence they gave. The court denied asylum for both men.
The Board of Immigration Appeals agreed with that denial.
But the U.S. Court of Appeals for the 9th Circuit overturned those denials of asylum. The appeals court said the immigration judges failed to specify whether the men gave credible testimony.
REICHARD: So the government appealed to the Supreme Court. The government says the appeals court can’t just presume an alien’s testimony is credible after the immigration judges found him not credible. That, even if the immigration judges wrote nothing about the credibility of the men.
Assistant Solicitor General Colleen Sinzdak argued for the government that an appeals court should only review the evidence in front of it. You might believe a person’s sincerity, and yet find the evidence doesn’t align with what he says.
She had a tough time getting that idea across.
Listen to this lengthy exchange with Justice Clarence Thomas. You can hear him chuckling in the background.
Not usually a good sign for your case.
SINZDAK: I think we can all imagine scenarios where someone might be credible but not persuasive. A lawyer might be credible in his arguments but not persuasive. My six-year-old son might be credible when he tells me he didn’t eat the cookies, but I may not ultimately find that persuasive if I find crumbs all over his room. So I think there is a distinction between the terms …
THOMAS: Well, it would seem to me that if you saw the crumbs, it would undermine credibility.
SINZDAK: Well, I think that if you think of credible as just capable of being believed, I can imagine explanations for the crumbs. I can imagine perhaps that the crumbs are there because his sister was framing him, but I don’t ultimately find his account persuasive. So maybe it’s capable of being believed, but it doesn’t have the power to persuade.
THOMAS: Well, it would seem as though, if the crumbs were around his mouth, you would think that that wasn’t quite credible, so it seems that the existence of the crumbs could be both, go to credibility and to persuasiveness.
Sinzdak pointed to other evidence in the record that supports denial of asylum. Outside of credibility.
Justice Thomas pressed for details. Dai is the Chinese man’s name.
SINZDAK: Even though Dai said that his wife had been persecuted along with him in China, there was evidence demonstrating that his wife had voluntarily returned to China just about two weeks after his family came. So that evidence that his wife voluntarily returned undermines the persuasiveness of his testimony about his family’s persecution. And when the asylum officer asked Dai for the real story behind his travel to the United States, he said to make a better life for his child and because he didn’t have a job. He did not reference the persecution.
But Dai’s lawyer argued when an immigration lawyer decides someone is not credible, that finding has to be made explicit. It was not made explicit, so the benefit of the doubt belongs to his client.
Here’s lawyer David Zimmer:
ZIMMER: Dai gave extremely detailed testimony about the abuse the Chinese government inflicted on him for his resistance to their forced abortion of his child. He testified that the police are looking for him in China. And he testified about the continuing threats he faces. There is simply nothing that undermines that, and the agency never found that that testimony was noncredible. And we therefore would urge this Court to affirm.
And lawyer for the man from Mexico argued that all the angst over distinctions in word meaning is pointless. He urged the court: Simply require immigration judges to explain themselves.
Lawyer Neil Katyal said the immigration judge’s opinion was like a bad law-school exam:
KATYAL: It lays out the facts on both sides, but it never applies them to explain how it resolved this case. And that would be bad in general, but particularly when there’s a presumption of credibility coming in. That’s where the agency fell down.
Katyal cited case precedent in support of his side. Other agencies don’t just ignore credibility and the Supreme Court wouldn’t accept it if they did.
They have to give reasons.
Perhaps Justice Stephen Breyer got to the nub of what several justices were thinking, in this exchange with Sinzdak for the government.
BREYER: My point I don’t get right now is the distinction between credible and true. See, my wife told me her mother was dying in China and that’s why she went back, she said.
Okay? That’s the testimony. And you say it’s credible. Now how could it not be true if it’s credible?
SINZDAK: Well, I think the—the easiest way to understand this for me is to think about a scenario where a credible witness says that the light was red and three credible witnesses say that the light was green. You may decide that, in fact, the light was green. That doesn’t mean the first witness didn’t credibly testify that the light was red.
I heard a podcast by Malcolm Gladwell about memory. That sometimes we let our minds fool us into believing things that are not true. He used the example of journalist Brian Williams who famously claimed that the military helicopter he’d been riding in for a reporting assignment had been shot down in Iraq in 2003.
It turned out he was not even on that helicopter, and Williams called his saying he was on it “a mistake.”
I don’t think the justices found the government either credible or persuasive on the distinctions between truth, credibility, persuasiveness.
But Justice Samuel Alito did say outright that the 9th Circuit botched the legal analysis, so perhaps that’ll win the case for the government.
Any decision in this case will affect immigrants who don’t want to be sent back to their home countries. So clarity on what immigration officials must say when they decline asylum requests is sorely needed.
I’ll put a “nerd alert” on our final oral argument today.
This one involves intellectual property and patents. But how it’s resolved may give us a clue about where the new conservative majority stands on how much power the administrative state ought to have.
What I mean by administrative state is that layer of government that doesn’t change much from administration to administration. Over the last several decades, Congress has ceded lots of authority to it and a school of legal thought says Congress can’t legitimately do that under our constitutional system.
Now about this case: the question presented asks whether one of these “alphabet soup” agencies is constitutional—the U.S. Patent Trial and Appeals Board, the P-TAB, as it’s called. Congress created the P-TAB in 2011 to speed up the process when someone sues you for patent infringement. Now, patent holders don’t care for this process because the P-TAB has the power to throw out their patents.
And that’s what happened in this case: the losing side of a patent dispute now argues the administrative-law judges on the P-TAB are illegitimate because they didn’t receive Senate confirmation.
The Constitution says the president must appoint these judges with Senate confirmation because they are in a class of officers known as “principal officers.” That’s distinct from “inferior officers” who don’t need Senate confirmation.
Lots of back and forth over where to draw lines to see just who is a “principal officer.”
Here’s a key exchange between Justice Alito and the lawyer for the company who wants to keep the P-TAB as it is. This lawyer is Mark Perry.
Before we hear it, two initialisms to toss into the alphabet soup: APJs— these are administrative patent judges. APJs preside over IPRs, meaning inter-partes review. An IPR is what the P-TAB calls a trial.
Here we go.
ALITO: Your brief has a very interesting metaphor. You say that the test here is a Goldilocks test. Is it — is it too hot? … and you also in your brief tick off all the ways in which there is control over these APJs.
So I’m going to go through your list and eliminate them one by one, and you tell me when to stop, when we get to the point where we’ve crossed the line and there’s no longer sufficient control. All right.
So let’s say that the director does not control whether to institute IPRs in the first place.
Justice Alito goes through several aspects of actions a judge—that APJ might take during the course of an IPR—the trial:
ALITO: He does not decide whether to dismiss an entire APJ proceeding rather than allow a panel’s decision to become final. Where along that line did we cross the Rubicon?
PERRY: Your Honor, of course, the director has all those powers, and any one of them might be removed…
ALITO: But you can’t tell me where along that line is the magic divider?
PERRY: Your Honor, if you want a magic divider, I would suggest it is the—the relationship to the President. An officer three steps removed from the President is—is never or almost never going to be a principal officer because he is a subordinate.
The ruling in this case has the potential to be very big. Meaning, the justices could invalidate the entire P-TAB system.
Whatever they end up doing, it’ll give us a peek into what the majority conservative justices think about the administrative state and the appointments clause of the Constitution.
And that’s this week’s Legal Docket.
NICK EICHER, HOST: Last year, Senate Democrats blocked a police reform bill authored by the GOP. And earlier this month Republicans uniformly opposed a Democrat-sponsored police reform bill in the House.
Well, almost uniformly. One Republican crossed party lines, voting with Democrats: Congressman Lance Gooden of Texas.
Many of his GOP colleagues were quite surprised, but no one was more surprised than Congressman Gooden himself.
In a Tweet, he explained that he accidentally pressed the wrong button during the congressional vote. Gooden then submitted a handwritten request to change his vote.
Hmm. Wonder how much care he’ll take if the House ever votes on—I dunno—vote fraud?! Too soon?
It’s The World and Everything in It.
MARY REICHARD, HOST: Next up on The World and Everything in It: the Monday Moneybeat.
NICK EICHER, HOST: Financial analyst and advisor David Bahnsen joins us now for our weekly conversation. David, good morning.
DAVID BAHNSEN, GUEST: Well, good morning. Good to be with you, Nick.
EICHER: I am curious what you thought was the big story emerging this week. Seemed like a light week.
What’s top of mind for you?
BAHNSEN: You know, I think the conversation about where the Biden administration is headed on tax increases is probably the big story of the week. The fact they are now in active conversations about where they want to go on tax policy. It isn’t very different from what he campaigned on and what was sort of the understanding of where they were going to go, but it’s now here. The stimulus is passed and I would imagine that’s one of the bigger economic developments. But it’s not going to be a short term story because it’s going to take them awhile to put it together. And then whatever they do end up passing is very likely to not be in effect until 2022.
But then it may very well be attached to an infrastructure bill. So we could be looking at another multi trillion dollar spending package. Although in this case they would be trying to pay for it with tax increases as opposed to 100-percent debt financing like the other COVID packages.
So these are just interesting times as we kind of get into these early stages of a post-COVID Biden administration world.
EICHER: It is early, but maybe give us a primer on tax policy, David. When we think of taxes, tax rates, ostensibly to collect revenue, we know the laws of economics tell us that not all taxes are created equal. Some of them collect revenue and create incentives for economic growth and some of them inhibit economic growth and wind up failing at the stated goal, which is to raise revenue.
But start the conversation on tax policy for us.
BAHNSEN: Yeah, I mean, I think that from my vantage point as a supply-sider—and this is a philosophical statement—I have always believed and history has, I think, reasonably validated that the government has been able to achieve greater revenue when it enacts supply-side reforms that create economic growth. And so they might have lower rates generating more revenue for more economic activity. And you’re getting, you know, if you’re taxing income you’re getting more income created when there’s more incentive to create income. And yet the very tax on income is itself a disincentive. And so that’s what the supply-side movement is based on is reorienting policy around this thing called incentives and the belief that incentives matter in economics. And so I do think lower marginal rates can create higher revenues.
But I also believe, Nick, and this is really important, that a lot of the things that would be necessary to do to really raise revenue no one wants to talk about. So, at the end of the day it is true that I’m opposed to higher and higher still and higher still marginal rates on wealthy taxpayers.
A lot of that is because I think it’s wrong. I think a lot of it, though, is it doesn’t generate any revenue. They’re not going to increase revenue to treasury simply by taking one percent of the taxpayers and pushing the rate that they’re paying up a few percent.
So, really sizeable increase in revenue is only going to come from middle-class tax increases, which are totally and completely politically unacceptable.
Something like a value added tax where they’re adding a whole dimension of taxation that is not seen by taxpayers but is felt by consumers by taxing various aspects of the supply chain along the way or higher taxes on consumption. That’s another way they could meaningfully move the needle, generate a lot of revenue. But again comes at a huge cost.
So, there’s not a serious conversation in this country about tax policy. It is either on one hand the certain group on the right that is always and forever “government doesn’t need more revenue, government doesn’t need more revenue.” And of course I agree in theory that what we mean by that is the government shouldn’t be so big that it needs more revenue. But to the extent that it is this big to need more revenue, as far as a conversation about how to get it, I would like to see something that doesn’t disincentivize economic growth.
Unfortunately from the left, most of the conversations are centered more around class warfare.
EICHER: Before we go, David, economic indicators. I saw the retail sales report was a downer, but what did you see in the data this week that was telling?
BAHNSEN: Yeah, no, it was not actually a very good week for economic data and we haven’t had that many where I would say that. For the most part, it’s really just been a pretty steady beat of economic data that was good and even a bit better than expected across a whole multitude of categories. And this week there was disappointing numbers on retail sales, on the jobs number, on industrial production. None of them were severe, but none of them were really overly optimistic. I think the 10-year bond yield moving all the way to 1.75 percent, again, is still the economy pricing in much higher economic growth expectations. The Fed had been anticipating four percent real GDP growth this year. They’ve upped their estimate to six and a half percent. My guess is that they’re wrong by at least one to two percent. I think you’re going to comfortably get above seven percent, if not eight or nine, real economic growth this year, which is monstrous.
EICHER: Monstrous, in a good way, Roaring back, like a good monster. David Bahnsen, financial analyst and advisor. Sounds like you’re roaring back, too, from your strep throat. Glad you’re better. Have a great week!
BAHNSEN: Well, appreciate it, Nick. Good to be with you.
[MUSIC: WEREWOLVES OF LONDON]
NICK EICHER, HOST: Next up on The World and Everything in It: The WORLD History Book. Today, Lewis & Clark begin their journey home. Also, the birth of playwright Tennessee Williams, and the first international women’s sporting event. Here’s senior correspondent Katie Gaultney.
SONG: “LEWIS & CLARK: THE GREAT JOURNEY WEST” SOUNDTRACK
KATIE GAULTNEY, SENIOR CORRESPONDENT: Explorers Lewis and Clark and their team began their journey home on March 23rd, 1806, after traveling through the Louisiana Purchase and reaching the Pacific Ocean.
During a 2017 Walnut Creek Library Association presentation, Lewis and Clark enthusiast Mark Jordan read from President Jefferson’s letter to Lewis that charged him with his chief goal:
JORDAN: The object of your mission is to explore the Missouri River, its communication with the waters of the Pacific Ocean that may offer the most direct and practicable water communication across the continent, for the purposes of commerce.
Along the way, they also studied the region’s geography, flora, and fauna. After reaching the Pacific, they headed back on the Columbia River, using Clark’s new map. A National Geographic documentary on the expedition explains how they owed their mission’s success to the support of the American Indian tribes they had encountered.
NARRATOR: They had passed among some 50 tribes without whose help they might never have returned. None played a greater role in their success than the young woman at their side…
Shoshone Sacagawea stayed behind with her family. She had delivered her firstborn son a few weeks after she first encountered the expedition, then kept the infant with her throughout the rest of her time with Lewis, Clark, and their “Corps of Discovery.”
Their journey to the Pacific took two years, but the return trip only lasted six months. Carolyn Gillman spoke to PBS in 2006 on behalf of the Missouri History Society about what a surprise it was when they returned to St. Louis via the Missouri River.
GILLMAN: Everybody had more or less forgotten about them. There had been no news from them since the spring of 1804, so it had been two years since any word had been heard from them. Everybody had kind of given them up for lost.
So family, friends, and federal officials alike were thrilled not only that they returned, but that they accomplished the mission: reaching the Pacific, establishing a legal claim to the land, and making a map of the new territory.
Moving from the Louisiana Purchase now to Tennessee. Tennessee Williams, that is.
BRANDO: Hey, Stella!
That’s Marlon Brando delivering the quintessential line of Williams’ play-turned-film, A Streetcar Named Desire. It was just one of a string of successful stage productions. In addition to Streetcar, Williams was the mind behind The Glass Menagerie, and Cat on a Hot Tin Roof.
CLIP: I feel all the time like a cat on a hot tin roof!/ Then jump off the roof, Maggie, jump off it.
But before he adopted the pen name “Tennessee,” he was just Tom, a little boy born in Columbus, Mississippi on March 26th, 1911.
Williams had a hard upbringing, with a largely absent, alcoholic father, and he had difficulty fitting in with kids his age. He also suffered serious illnesses as a child, including rheumatic fever and diphtheria. In 1974, Williams told interviewer Dick Cavett the condition removed any fear he had of death.
WILLIAMS: When you’ve lived with it that long, and been told if you were lucky, you’d live to 40, you get kind of used to the idea, it ceases to terrify you…/ Every year after 40 has been a bonus then./ Yes!
For all his success and literary brilliance, Williams made destructive life choices. He died of a drug overdose at age 71. But his plays live on. He won two Pulitzer Prizes for drama and is widely regarded as one of America’s finest playwrights.
SONG: MAIN TITLE, A STREETCAR NAMED DESIRE
We end today with a milestone in women’s sports. The first international women’s sporting event took place 100 years ago, with the Women’s Olympiad on March 21, 1921.
SONG: “FIVE FOOT TWO, EYES OF BLUE,” ERNIE GOLDEN & HIS ORCHESTRA
Note that’s “Women’s Olympiad,” not Olympics. The distinction is important—Olympic organizers at that time only allowed women to compete in events like archery, sailing, tennis, and figure skating. Women’s sports pioneers Alice Milliat and Camille Blanc unsuccessfully lobbied the International Olympic Committee to create women’s-only track events in the Olympic Games.
NARRATOR: Fears were expressed that athletic competition could physically damage the weaker sex.
With that rejection, they decided to come up with their own version of the Olympics. Their event took place in the gardens outside the famed casino in Monte Carlo.
One hundred participants from five nations—France, Italy, Switzerland, the United Kingdom and Norway—competed in track and field events. The tournament also featured exhibitions in women’s basketball and gymnastics, and an old-fashioned game called “pushball,” where players pushed a 50-pound, 6-foot-diameter ball around a field. France and England dominated the medal count.
The combination of athletics and performance-style dance gymnastics made the event a smashing success with the public and the press. Other international women’s sporting events followed, and in 1928, the Summer Olympics featured track and field events for women for the first time.
That’s this week’s History Book. I’m Katie Gaultney.
NICK EICHER, HOST: Tomorrow: repurposing farm land. Wealthy investors are buying up America’s fields to plant a new crop. We’ll tell you what that is.
And, we’ll take you to France, where a new law targeting Muslim extremism has Christians worried.
That and more tomorrow.
I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard.
The World and Everything in It comes to you from WORLD Radio.
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