Today’s newsletter is free to all and follows up on Tuesday’s newsletter about Justice Gorsuch’s error in the vaccine/testing mandate case. As I did in a recent post, I did a roundup of some coverage of the error, with some analysis of where that coverage was either faulty, as well as where the coverage shed more light.

I also took on some arguments that had been sent to me by a law professor who shall go unnamed.

Teaser:

After all, if OSHA issues regulations that make it less likely for a worker to lose his fingers at work, those regulations will “affect” the worker at home as well . . . by giving him, inside his home, the use of fingers that he might not otherwise continue to possess but for the OSHA workplace regulation. Ah, but if the agency itself had already disclaimed any authority to issue regulations that will “affect workers’ lives outside the workplace” . . . .then that could be seen as a major concession. And Justice Gorsuch portrayed it as such — but it is a concession that OSHA had not actually made in its 2020 brief.

Coming soon: an analysis of the vaccine/testing mandate cases themselves. That one will be for paid subscribers. You may subscribe for free (or sign up to be a paid subscriber) here.

[guest post by JVW]

Well, I think a lot of us saw this coming. One of the things that I thought was most interesting about the 2020 election is that Democrats and their media allies absolutely hated Donald J. Trump, President of the United States, and insisted (correctly) that his personality was toxic and (questionably) that his agenda was the road to ruin. Yet the grand Democrat axis then coalesced around the candidate who is the most similar to the guy whom they purported to hate.

Worried that the President is too old and too white to lead a nation in which youth and diversity are fetishized? Yep.

Worried that the President is a lazy ignoramus blowhard with a penchant for making up things that sound assuring but simply aren’t true? Roger that.

Worried that the President is too flippant and off-the-cuff when discussing important international affairs and thus might frighten our allies and embolden our enemies? You betcha.

Worried that the President is lecherous and of low character, treating women with far too much familiarity? Uh-huh.

Worried that the President is a petulant bully who is too thin-skinned to take criticism and expects to receive a level of respect that he hasn’t done anything to deserve? Check.

Worried that the President treats the White House media — the “gatekeepers of our democracy” — with snide contempt and disdain? Surely.

Worried that the President has used his position to further the business interests of himself and his sleazy family? Can’t really argue and it’s nothing new.

Worried that the President is at heart an authoritarian who if given the chance would be glad to bypass democratic norms and rule by fiat? Right there with you.

Worried that the President plays to the most ignorant parts of his base by making grandiose promises which he almost certainly has no ability (or even willingness) to keep? Ten-four, good buddy.

Yesterday President Biden doubled down and demonstrated yet again that we traded the rightish version of Donald Trump for his leftish doppelgänger. At his press conference earlier today, when asked if his inability to pass the Democrats’ hyper-partisan election bill might render this November’s election illegitimate, the current occupant of 1600 Pennsylvania Avenue borrowed a page from the playbook of his predecessor:

Following the president’s big speech in Georgia, I asked if the press was ready to put this question to Joe Biden about his hyperbolic claims in support of the Democrats’ voting and elections bills: Does Biden truly believe that, if these bills do not pass, America will not have democratic elections in 2022? Will he reject their outcomes as illegitimate?

Well, today he was asked that question, and his answer was, basically, that it depends if Democrats win:

It all depends on whether or not we’re able to make the case to the American people that some of this is being set up to try to alter the outcome of the election. . . . I think it would easily be illegitimate. The prospect of it being illegitimate is in direct proportion to us not being able to get these reformed passed.

This does not seem accidental. It comes on the heels of Chuck Schumer’s saying about passing Electoral Count Act reforms, “That makes no sense. If you’re going to rig the game and say, ‘Oh, we’ll count the rigged game accurately,’ what good is that?” When the Senate majority leader says our elections are a “rigged game” and the president says “it depends” when asked if he’ll accept the outcome of the upcoming elections, that is a dire sign for the party in power’s respect for democracy.

Of course it was just fourteen short months ago that everybody who was Virtuous & True was huffing and puffing about how irresponsible it is for an elected official — let alone the friggin’ President of the United States — to suggest that an election loss which comes in a contest held under rules that you don’t like is therefore corrupt and illegitimate.

Yet the guy who was elected not because he was particularly bright or wise or perspicacious or competent but because he was allegedly far less of a total train wreck than Donald J. Trump turns out to be a great deal like President 45 indeed. The Biden Administration thus far has been one failure after another — no, I don’t count simply passing legislation as being indicative of success, especially when that legislation has failed to accomplish its objectives — and his approval rating is today at the levels of his predecessor at the same point in the Trump Presidency, perhaps even lower.

Joe Biden has responded to his obvious organizational sputtering with his usual mixture of blarney, ignorance, obliviousness, wish-casting, bad faith arguments, bullying, and divisiveness. Despite his press team doing their usual bit to walk back or otherwise blatantly lie about the dumbest things the boss recently said, and with most establishment Democrats practically begging him to change directions and tack back to the center, President Biden gives every indication that he is too dense and foolhardy to execute a policy pivot and will continue to court the approbation of the insurgents, at least until Ron Klain has a change of heart. It promises to be a long and ugly year ahead in the nation’s capital.

– JVW

Here we go again: a favorite writer of mine is misinterpreting laws against the new wokeism. Last time it was David French. This time it is Allahpundit, whose post is titled Does a new Florida bill prohibit schools and businesses from causing whites “discomfort” or “guilt”? and begins by answering the question in this way:

That’s how the Associated Press’s deliberately inflammatory headline frames the stakes here. Are they right?

Short answer: Not really, but sort of?

Longer answer: The bill is facially neutral as to race. It doesn’t bar schools and businesses from causing “discomfort” or “guilt” to whites specifically during instruction or training. It bars them from causing discomfort or guilt on the basis of race with respect to any race. If you uncork a white supremacist rant while addressing your staff or your classroom, you’d face consequences under this law.

That’s my bold emphasis, there to indicate that the part in bold is wrong. The Associated Press is wrong, all right, but not because the bill applies to all races and not just whites. It’s wrong because the bill itself does not bar schools and businesses from “causing discomfort or guilt on the basis of race with respect to any race” (to quote Allahpundit’s mistaken characterization). Rather, it bars schools and businesses from teaching people that they should feel discomfort or guilt because of their race.

That’s a different concept.

Don’t take my word for it. Allahpundit quotes the relevant provisions. See for yourself:

The ban here is not on instruction that causes whites (or any race) to feel guilt or discomfort. The ban is on instruction that tells whites (or any race, color, sex, etc.) that they should feel guilt or discomfort on account of their race. Specifically, the law bans instruction that any individual “should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race, color, sex, or national origin.” I emphasize the word “should” because that is the key word.

There is a meaningful distinction between banning instruction that might cause people anguish due to the color of their skin, and teaching them that they should feel anguish due to the color of their skin. The former teaching is a potential consequence of any teaching about our country’s history of racism. The latter teaching is un-American.

The error permeates Allahpundit’s post. He says (my bold emphasis):

Where does all of that leave us? If a teacher tells his students that “white people oppressed black people for hundreds of years in the United States,” is that actionable under this statute? It might cause white students “discomfort” or “guilt” to hear whites indicted as a race that way. But how else should it be put? Saying that certain whites oppressed certain blacks wouldn’t capture the extent to which African-Americans were subjugated systematically and institutionally before the civil rights era. You can see why Dems worry that some parents acting in bad faith might try to steer schools away from teaching ugly chapters of American history altogether for fear of inadvertently landing in legal jeopardy under the bill.

The answer is no: it would not be actionable. Teaching about race that “might” cause white students to feel discomfort or guilt is not the same as teaching white students that they “should” feel discomfort or guilt due to their skin color. Teachers can manage to explain to their students that white people oppressed blacks throughout most of this nation’s history, without the need to add the observation that as a result of this history, the white kids in the class should feel bad for being white.

Allahpundit errs again when discussing the workplace restrictions:

At what point does the First Amendment protect a boss’s right to cause “discomfort” to his employee by stating a political opinion, particularly if he has facts to back it up? I’m guessing we’re eventually going to find out.

But the issue here is not an employer’s right to cause discomfort, but his right to tell his employee that the employee should feel discomfort because of the employee’s race. To me, the latter (which is what the law actually bans) is a form of race discrimination itself — but to the extent that this is unclear under current law, this bill makes it crystal clear. Such statements have no place in the workplace.

Regular readers will recall that this is the same error David French, Kmele Foster, Thomas Chatterton Williams, and some partisan lefty made in their New York Times piece on so-called “anti-CRT laws.” As I explained at the time:

If French, Foster, Williams, and Stanley were accurately characterizing the laws, I would be in agreement with them here. Our kids simply must be taught the history of slavery and Jim Crow, just like German kids need to be taught about the Holocaust. No sane person disagrees. And an accurate account of that history of governmental oppression of one race no doubt “could” and likely “would” cause many kids to feel anguish. Banning laws that “could” or “would” cause kids such anguish cannot possibly stand.

Here’s the thing, though: that’s not what the laws say. Instead, they make a very important distinction by banning teachers from teaching kids that individuals “should” (not could, not would, but should) feel anguish on account of their race or sex. In other words, the laws target the project of some anti-racists to make white people feel guilty simply because of the color of their skin.

I continue to admire David French, and I consider Allahpundit to be the best writer on the Web. But they are both misinterpreting, in a similar fashion, laws designed to fight the scourge of racism that currently operates under the misleading banner of “anti-racism.” No reasonable person wants to ban teaching about the history of racism, even though such teaching might have the incidental effect of causing some whites to feel guilt as a result of their ancestors’ actions. That is quite different from teaching people that they should feel guilt for their “white privilege” — a concept that is at the heart of a best-selling book, and which is far more prevalent than critics give it credit for.