The Morning Dispatch: Is Bannon Back?

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Quick Hits: Today’s Top Stories

• As of Thursday night, 2,189,128 cases of COVID-19 have been reported in the United States (an increase of 25,838 from yesterday) and 118,421 deaths have been attributed to the virus (an increase of 704 from yesterday), according to the Johns Hopkins University COVID-19 Dashboard, leading to a mortality rate among confirmed cases of 5.4 percent (the true mortality rate is likely much lower, between 0.4 percent and 1.4 percent, but it’s impossible to determine precisely due to incomplete testing regimens). Of 25,403,498 coronavirus tests conducted in the United States (465,621 conducted since yesterday), 8.6 percent have come back positive.

• In a 5-4 ruling, the Supreme Court barred the Trump administration from rescinding the Obama-era Deferred Action for Childhood Arrivals (DACA) program. “The dispute before the Court is not whether [Department of Homeland Security] may rescind DACA. All parties agree that it may,” Chief Justice John Roberts said, siding with the majority. “The dispute is instead primarily about the procedure the agency followed in doing so.”

• According to data from the Department of Labor, 1.5 million people filed for unemployment this week, marking the 13th week in a row that claims have exceeded 1 million. More than 20.5 million Americans received unemployment benefits last week in total.

• Facebook removed several posts by the Trump campaign for displaying a Nazi symbol, citing the ads’ violation of their policy against organized hate. Red inverted triangles, which appeared alongside text about Antifa in the Trump campaign ads, were used in Nazi concentration camps to identify political prisoners. The Trump campaign said the inverted triangle is “a symbol widely used by Antifa,” and “not in the ADL’s Hate Symbols Database.”

• California began implementing a statewide mask mandate in indoor public spaces yesterday, aiming to mitigate a recent increase in hospitalizations amid the state’s loosening of coronavirus restrictions.

• Sen. Marco Rubio introduced a bill yesterday that would require the NCAA to allow student-athletes to profit from their names, images, and likenesses.

• Mary Elizabeth Taylor, assistant secretary of state for legislative affairs who has served in the Trump administration since day one, resigned yesterday in response to President Trump’s handling of the George Floyd protests. “The President’s comments and actions surrounding racial injustice and Black Americans cut sharply against my core values and convictions,” she wrote.

• FiveThirtyEight debuted its weighted 2020 polling average yesterday. Joe Biden currently holds an 8.9 point lead over President Trump in the average.

Who Will Speak for America?

Unless you run in very well-informed foreign policy circles, the name Michael Pack will likely not mean very much to you. But he’s kicked off quite the controversy this week both in Foggy Bottom and on Capitol Hill.

Pack, a conservative filmmaker and acolyte of Steve Bannon, was nominated by President Trump to head the U.S. Agency for Global Media (AGM)—a government-funded but editorially independent organization that oversees Voice of America, Radio Free Asia, and Radio Free Europe, among other networks—in June 2018. But the Republican-led Senate sat on his nomination for years, amid questions about his background and tax filings. Pack wasn’t confirmed to the role until earlier this month, after the White House pressured Senator Jim Risch (R-ID), chairman of the Senate Foreign Relations Committee, to move the nomination forward. The vote was along party lines.

In just a few weeks, Pack has purged significant portions of the agency: The multilingual former ambassador Alberto Fernandez was ousted from his post as leader of the Middle East Broadcasting Networks while, Jamie Fly, a former National Security Council official and senior foreign policy adviser to Sen. Marco Rubio, was dismissed from Radio Free Europe/Radio Liberty. Emilio Vazquez and Libby Liu of the Office of Cuba Broadcasting and Open Technology Fund, respectively, also were let go. Pack further disbanded boards overseeing the networks, installing himself as leader and replacing members with political operators.

“We are going hard on the charge,” Steve Bannon—former strategist to President Trump, head of Breitbart, and champion of Pack’s nomination—told Vox. “Pack’s over there to clean house.” Bannon’s designs on the broadcasting networks are not new. CNN reported in 2017, shortly after Bannon left the Trump administration, that changes to the U.S. broadcasting operations would be “Bannon’s legacy.”

Founded in 1942, the mission of the U.S. AGM—and the stations that it manages—is to “disseminate factual, unbiased news to people who live in countries where freedom of the press is either strongly curtailed or nonexistent,” per this explainer by Alex Ward.

These networks are, of course, intended to be pro-America and tell the United States’ perspective to people of the world who might not otherwise hear it—but they have built a reputation of being politically independent. Democrats and other critics of the Trump administration worry Pack’s purges at the AGM—and the mid-level Trump political appointees he is replacing them with—could irreparably damage the institution by turning it into a more blatant mouthpiece for Trump.

“Trump appointing a Steve Bannon associate, Michael Pack, to the parent agency of Voice of America is a big [story] that will only get bigger,” tweeted Walter Shaub, former director of the United States Office of Government Ethics under President Obama. “This is the Breitbartization of U.S. government media.”

“As feared, Michael Pack has confirmed he is on a political mission to destroy the USAGM’s independence and undermine its historic role,” Sen. Bob Menendez, ranking member of the Senate Foreign Relations Committee, said in a statement. “The wholesale firing of the Agency’s network heads, and disbanding of corporate boards to install President Trump’s political allies is an egregious breach of this organization’s history and mission from which it may never recover.”

The White House, which did not respond to a request for comment, had grown increasingly frustrated with Voice of America’s coverage.

“Journalists should report the facts, but VOA has instead amplified Beijing’s propaganda,” an April 10 post on the White House website read. “This week, VOA called China’s Wuhan lockdown a successful ‘model’ copied by much of the world—and then tweeted out video of the Communist government’s celebratory light show marking the quarantine’s alleged end.”

“If you heard what’s coming out of the Voice of America, it’s disgusting. What—things they say are disgusting toward our country,” President Trump said during an April 15 press conference. “And Michael Pack would get in and do a great job.”

But even Republicans lawmakers sympathetic to Trump’s critique of the VOA were concerned about the purge, with many calls to the White House and the State Department expressing frustration and seeking explanation.

‘I Think the Conservative Legal Movement Has an Issue’

So says Josh Blackman, a law professor at the South Texas School of Law in Houston.

After Monday’s opinion that included sexual orientation and gender identity under Title VII’s prohibition on sex discrimination, yesterday the Supreme Court left in place the Obama administration’s Deferred Action for Childhood Arrival (DACA) immigration program. Sarah and David tackled all the legal nerdery surrounding this case on the latest Advisory Opinions podcast, but we also have an excerpt of David’s Thursday French Press (🔒):

The short version of what happened is this—the Obama administration enacted a substantive change in immigration law through a memorandum that defied immigration statutes and the Administrative Procedure Act, a statute that requires the executive branch to go through a specific rulemaking process before enacting substantive regulations.

The DACA program did two things—first, it exercised “prosecutorial discretion” to permit illegal immigrants who arrived in the United States as children to receive a two-year forbearance of removal. Second, those granted forbearance then became eligible for “work authorization and other federal benefits.”

The second element of the program made DACA quite different from a simple exercise of prosecutorial discretion. It would be entirely proper for an administration to use its limited resources to prioritize for deportation other unlawful immigrants—for example, illegal immigrants who commit additional crimes in the United States (beyond unlawful entry).

But as Justice Roberts noted, “the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief.”

And what did the court say about all this?

The majority did not hold that DACA is lawful. It did not hold that the Trump administration can’t revoke DACA. Instead, it held that the Trump administration’s explanation and justification for revoking the policy was legally incomplete … So, at the end of the day, an Obama policy announced by a short memorandum could not be withdrawn by a memorandum—unless that memorandum was more detailed.

On the one hand, Roberts made clear that an administration could rescind DACA if it were done in a very particular way. “It struck me as a pretty narrow opinion and not necessarily something that is going to radically change administrative law,” said Daniel Epps, a law professor at Washington University in St. Louis School of Law.

But within conservative legal circles, it signaled a larger problem with the Roberts Court. “He did this in the Obamacare case, he did this in the census case, and now he did it in the DACA case. It’s the same playbook. And in each case, he relies on an argument that no lower court adopted and none of the parties advanced,” offered Blackman. “How is Attorney General Sessions supposed to know three years ago what the exact thing Roberts wanted? … It’s a standard no agency can comply with.”

Perhaps Justice Alito summarized it best:

“What this means is that the Federal Judiciary, without holding that DACA cannot be rescinded, has prevented that from occurring during an entire Presidential term. Our constitutional system is not supposed to work that way.” 

Opting Out of Political Ads

Sick of politicians leering out at you from autoplay videos as you scroll down your social media feeds? Wish we could just skip past the months-long song and dance of election season and go ahead and get this thing over with? Facebook, CEO Mark Zuckerberg announced Wednesday, is rolling out an opt-out feature for political ads on its platform, “for those of you who’ve already made up your minds and just want the election to be over.”

The announcement comes after months of growing scrutiny over the way Facebook and other social media giants handle the spread of disinformation on their platforms—during which time the company has struggled not to become a political football between the Trump and Biden campaigns. The Biden campaign has been publicly lobbying Facebook to crack down on untrue ads since last October, when in the midst of a Congressional impeachment inquiry into President Trump’s relations with Ukraine, the Trump campaign released an ad claiming Biden had conditioned aid on the country firing a prosecutor investigating a company with ties to his son.

Biden and company have renewed those calls in recent weeks, particularly after President Trump posted a series of inflammatory messages on social media during the aftermath of the death of George Floyd, including a foreboding threat that “when the looting starts, the shooting starts.”

But while criticism of Facebook on this issue has tended to revolve around how social media companies’ policies affect the president and the presidential race, the real impact of changes like this one is likely to be felt much more acutely further down the ballot.

“This doesn’t hurt Donald Trump, and it doesn’t hurt Joe Biden,” Eric Wilson, an expert on digital campaigns who was digital director for Marco Rubio during his 2016 campaign, told The Dispatch. “It hurts all of the thousands of local campaigns who rely on Facebook to reach their voters. There aren’t local media outlets covering local elections. And so campaigns are responsible for updating their voters themselves, and Facebook is shutting that down.”

Many Americans have a justifiable general suspicion of paid speech like political ads. But Wilson argued that the incentive structure of social media is such that relying purely on organic distribution of content is a sure way to ensure the most radical, explosive voices are pushed to the fore.

“The way you get really crazy organic reach is by being extreme and having really charged rhetoric,” he said. “That’s going to be one of the only ways you can reach people who opt out of Facebook ads.”

“It’s going to lead to a decline in civic participation and engagement, and really make it more difficult for candidates that don’t have a lot of money to make an impact and get their voices heard.”

Worth Your Time

• Monday’s Supreme Court decision on LGBTQ rights in the workplace has underscored the tensions between constitutional protections of religious practice and anti-discrimination laws. In a New York Times opinion piece, Dr. Russell Moore makes an impassioned case for religious freedom, for the sake of believers and non-believers alike. The founders, according to Moore, enshrined religious protections in the First Amendment not because of their personal faith, but because of their recognition that creating a state powerful enough to uproot its citizens’ most sacred values would invariably lead to tyranny. “Like it or not, millions of people hold views that some consider wrongheaded or ridiculous,” he writes, “Any attempt to bulldoze over such convictions would invite a kind of constitutional apocalypse — and would harm not just so-called religious conservatives, but those who oppose them.”

Something Existential

Presented Without Comment

Also Presented Without Comment

Also Also Presented Without Comment

Toeing the Company Line

• It’s been an eventful few days for followers of the Supreme Court. Tune into Thursday’s Advisory Opinions to listen to David and Sarah break down the week’s most consequential rulings—DACA and Title VII—before discussing the legal fight surrounding John Bolton’s book.

• If you haven’t already, be sure to check out Wednesday’s episode of The Remnant. Jonah chats with Brown University’s David Skarbek about his research on the inner workings of our nation’s prison gangs. The two discuss the ways in which social order can emerge naturally from situations of decentralization.

• On the site today, Bob Driscoll, a former deputy assistant attorney general for civil rights with the Department of Justice, analyzes the various proposals put forth for police reform, and shares his experience on working with law enforcement and local officials in 2001 after several officer-involved shootings led to protests. “It wasn’t whatever policies we from DoJ mandated … that did the trick, it was the process and eventual trust among the community members and police that built up over time.”

Let Us Know

We might start seeing a whole lot fewer political ads now that we can opt out of receiving them, at least on Facebook. For posterity, send us the best (and/or worst) political advertisement you’ve ever seen.

Bernie Sanders’ 2016 ad—“America”—makes a strong case to be included in the former category.

Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Sarah Isgur (@whignewtons), Charlotte Lawson (@charlotteUVA), Audrey Fahlberg (@FahlOutBerg), Nate Hochman (@njhochman), and Steve Hayes (@stephenfhayes).

Photograph by Alex Wong/Getty Images.