Brownstone Institute
Tremendous Progress in Missouri v. Biden
From the Brownstone Institute
BY 
As I explained previously, the government appealed the district court’s preliminary injunction in Missouri v. Biden, which would prohibit the government from pressuring social media companies to censor Americans online. Two days ago, a three-judge panel in the 5th Circuit court of appeals heard oral arguments from both sides.
Alex Gutentag over at Public yesterday provided a great summary of the judge’s responses during the hearing:
Yesterday the Fifth Circuit court heard oral arguments in the Missouri v. Biden case, and the judges did not hold back. One judge suggested the government “strongarms” social media companies and that their meetings had included “veiled and not-so-veiled threats.”
Another judge described the exchange between the Biden administration and tech companies as the government saying, “Jump!” and the companies responding, “How high?”
“That’s a really nice social media company you got there. It’d be a shame if something happened to it,” the judge said, describing the government’s coercive tactics.
Attorney John Sauer, representing Louisiana, masterfully argued that the government had repeatedly violated the First Amendment. He pointed to specific evidence of coercion in the Facebook Files.
“You have a really interesting snapshot into what Facebook C-suite is saying,” Sauer explained. “They’re emailing Mark Zuckerberg and Sheryl Sandberg and saying things like… ‘Why were we taking out speech about the origins of covid and the lab leak theory?’” The response, Sauer said, was, “Well, we shouldn’t have done it, but we’re under pressure from the administration.”
He also cited an email from Nick Clegg, Facebook President of Global Affairs, that pointed to “bigger fish to fry with the Administration — data flows, etc.”
On Monday, Public reported that these “data flows” referred to leverage the Biden administration had over the company; Facebook needed the White House to negotiate a deal with the European Union. Only through this deal could Facebook maintain access to user data that is crucial for its $1.2 billion annual European business.
But Sauer also made it clear that coercion was not the only basis on which the court could rule against the Biden administration. Joint activity between the White House and social media platforms would also be unconstitutional.
Sauer compared what the government had done to book burning. “Imagine a scenario where senior White House staffers contact book publishers… and tell them, ‘We want to have a book burning program, and we want to help you implement this program… We want to identify for you the books that we want burned, and by the way, the books that we want burned are the books that criticize the administration and its policies.”
Daniel Tenny, the attorney for the Department of Justice, was left nitpicking and misrepresenting the record. In one instance, he denied that Anthony Fauci and Francis Collins had hatched a plan to orchestrate a “takedown” of the Great Barrington Declaration. Why? Because, Tenny said, according to their emails, they actually planned a takedown of “the premises of the Great Barrington Declaration.”
Tenny also stated that social media companies had not removed any true content. From the case’s discovery as well as the Facebook Files we know that is far from true. Facebook, against internal research and advice, did remove “often-true content” that might discourage people from getting vaccinated. Facebook’s own emails clearly suggest that the company only did this due to pressure from figures within the Biden Administration.
Tenny also claimed that when Rob Flaherty, the White House director of Digital Strategy, dropped the F-bomb in an exchange with Facebook it was not about content moderation. In fact, it was precisely about content moderation and occurred during a conversation about how Instagram was throttling Biden’s account. Ironically, the account couldn’t gain followers because Meta’s algorithm had determined that it was spreading vaccine misinformation.
Later, Sauer demolished an earthquake hypothetical that Tenny had introduced to justify state-sponsored censorship. “You can say this earthquake-related speech that’s disinformation is false, it’s wrong,” Sauer said. “The government can say it’s bad, but the government can’t say, ‘Social media platforms, you need to take it down.’ Just like a government can’t stand at the podium and say, ‘Barnes and Noble, you need to burn the bad books, burn the Communist books, whatever it is.’ They can’t say take down speech on the basis of content.”
Based on this hearing, the plaintiffs in Missouri v. Biden may have a strong chance of winning. Biden’s DOJ simply had no valid arguments to present. The evidence is clear: the administration brazenly engaged in an unlawful censorship campaign and instrumentalized private companies to do its bidding. This total disregard for fundamental civil liberties will be a stain on the Democratic Party for years to come.
Matt Taibbi’s reporting on this at Racket News yesterday was likewise excellent. I especially appreciated his colorful account of our brilliant lawyer, John Sauer. A few excerpts:
Early in the afternoon, a three-judge panel met to decide whether or not to revoke a stay of Judge Terry Doughty’s sweeping July 4th order barring a battery of government agencies from contacting social media companies about content moderation. Biden administration counsel Daniel Bentele Hahs Tenny was under fire from the jump.
It was hard not to feel for Tenny. Sitting across from him was a packed table of anxious plaintiffs’ attorneys, including Missouri’s garrulous, tornado-like former Solicitor General John Sauer — the driving force behind the Missouri v. Biden legislation — as well as the current officeholder, a lean, plain-spoken lawyer with Jimmy Stewart vibes named Josh Devine. Tenny, an ashen, slouching figure, was alone. In a case of major historical import, likely headed to the Supreme Court, the federal government hadn’t even sent another lawyer to keep him company. Staring down at his table, he looked like Napoleon Dynamite at lunch.
Called first, Tenny read a speech. He made it through the first thirty seconds well enough, arguing that Doughty’s July 4th order would leave the government “powerless” to discourage social media companies from disseminating “untrue” statements in the event of a natural disaster. Then, almost right away, he stepped in it.
“To take another example,” Tenny went on. “If… a government official were to conclude that it was likely, although not certain, that posts on social media were part of a criminal conspiracy, for example regarding human trafficking… the government official would be powerless to bring those posts to the social media company’s attention.”
Judges Edith Brown Clement, Jennifer Walker Elrod, and Don Willett listened sleepily at first, but all three snapped awake at the words “criminal conspiracy.” Doughty’s July 4th order specifically exempted communications about “criminal activity or criminal conspiracies,” posts that “threaten the public safety,” and communications about things that are “not protected free speech.” Tenny’s remarks more or less immediately drove into this wall of exceptions.
“So you do not believe that either of those are covered by the exception or exclusion specifically contained in the injunction?” asked Elrod.
Things then went bad to worse for the government:
Before long judges were rattling off greatest hits of both the Missouri v. Biden evidence and Facebook Files material, the worst possible scenario. Elrod within minutes was referencing posts by officials like the White House’s Rob Flaherty expressing frustration that content like Tucker Carlson videos or Alex Berenson articles hadn’t been removed.
“What appears to be in the record are these irate messages from time to time from high ranking government officials that say, you didn’t do this yet,” she said. “It’s like ‘Jump!’ and ‘How High?’”
Tenny tried to reorient Elrod to the question of whether or not this constituted overt coercion. If you were coercing, he said, “You wouldn’t say, ‘I’m really mad.’ You would just say, ‘Do this or else,’ and the or else would be clear.”
Elrod, not buying it, launched into an extraordinary counter-argument, comparing the federal government to the mob:
If you’ll excuse me, it’s like if somebody is in these movies that we see with the mob or something. They don’t say and spell out things, but they have these ongoing relationships, and they never actually say, “Go do this or else you are going to have this consequence.” But everybody just knows…
I’m certainly not equating the federal government with anybody in illegal organized crime. But… there are certain relationships where people know things without always saying the “or else.”
Willett put the mob analogy in even plainer language, saying the government’s behavior was a “fairly unsubtle kind of strong-arming,” as in, “That’s a really nice social media platform you got there. It’d be a shame if something happened to it.”
Then our lawyer John Sauer’s took his turn delivering a barrage of evidence and pointed arguments like a caped crusader making short work of helpless thugs:
In the court gallery a few clerks winced at one another at certain points of Tenny’s address, the way people do at boxing matches when someone walks into a face shot. The effect got worse when Tenny walked off and a furious Sauer addressed the judges. While Tenny rambled and spoke in generalities, the loquacious, bespectacled Sauer — who appears descended from some ancient God of rage — tore into the government’s arguments with ferocity and specificity. Judges tried at various points to challenge him, but he kept hurling cites back so fast the queries got lost.
“I would direct the court’s attention to pages 70 to 75 and 80 to 86 of the District court’s opinion,” he’d say, “where he makes specific findings resulting in the conclusion that CISA and the Election Integrity Partnership were, quote, ‘completely intertwined…’”
Taibbi then placed the significance of this case into context, explaining why the case will almost certainly end up at the Supreme Court:
Missouri v. Biden is fast becoming the vehicle through which a diverse series of recent disclosures about government censorship, including the Twitter Files reports, is likely to be litigated at a national level. What was pooh-poohed as conspiracy theory even a year ago is now a cat-hair away from being addressed and potentially proscribed by the country’s highest court. For the issue to get there at all would in itself represent an incredible journey, but signs continue to accumulate that a rare major judicial reprimand of the intelligence and enforcement communities could actually happen, and soon, too.
It would be a mistake to read too much into hearings like yesterday’s. One never knows how judges will rule, even when they appear to show emotion and inclination in court. Sometimes, they’re playing Devil’s advocate. The appellate panel, charged with deciding whether or not to reinstate Doughty’s sweeping order, could easily surprise those who attended and rule against the plaintiffs. Either way, an answer is expected soon. Attorneys present gave estimates ranging from a few weeks to two months for the panel to rule on yesterday’s issue.
A crucial fact of this case, however, is that Doughty’s July 4th order has created a motivation for both sides to push forward to the Supreme Court as soon as possible. Doughty’s ruling, which described the current Internet censorship regime as “arguably… the most massive attack against free speech in United States history,” essentially said that the damage from current government-influenced content moderation schemes may be so extreme that they must be completely enjoined until courts can determine how bad they are. That ruling was a major victory for the plaintiffs, and if the July 14th stay by the Fifth Circuit Court of Appeals remains in place, the plaintiffs will almost certainly appeal right away to a higher court in hopes of restoring their big win.
If the plaintiffs prevail, on the other hand, Doughty’s order will go back in force and the government will essentially be barred from meddling in the speech landscape. The administration has already argued on paper that this can’t be tolerated for any length of time, as any inability to pursue these “initiatives to prevent grave harm to the American people and our democratic processes,” causes the state “irreparable harm.” A more cynical interpretation might be that the “irreparable harm” is the prospect of the administration going without nuclear opinion-managing tools heading into an election year. Either way, a loss on the stay question will similarly motivate the administration to push for immediate Supreme Court consideration.
That’s all for now, folks. I will update you as soon as we get a ruling from the 5th Circuit. I remain optimistic that an eventual win at the Supreme Court will be the first major step toward completely dismantling the government’s censorship leviathan and restoring First Amendment free speech rights for all Americans.
Thank you for your continued support.
Reprinted from the author’s Substack
Author
From the Brownstone Institute
By 
Who Controls the Administrative State?
President Trump on March 20, 2025, ordered the following: “The Secretary of Education shall, to the maximum extent appropriate and permitted by law, take all necessary steps to facilitate the closure of the Department of Education.”
That is interesting language: to “take all necessary steps to facilitate the closure” is not the same as closing it. And what is “permitted by law” is precisely what is in dispute.
It is meant to feel like abolition, and the media reported it as such, but it is not even close. This is not Trump’s fault. The supposed authoritarian has his hands tied in many directions, even over agencies he supposedly controls, the actions of which he must ultimately bear responsibility.
The Department of Education is an executive agency, created by Congress in 1979. Trump wants it gone forever. So do his voters. Can he do that? No but can he destaff the place and scatter its functions? No one knows for sure. Who decides? Presumably the highest court, eventually.
How this is decided – whether the president is actually in charge or really just a symbolic figure like the King of Sweden – affects not just this one destructive agency but hundreds more. Indeed, the fate of the whole of freedom and functioning of constitutional republics may depend on the answer.
All burning questions of politics today turn on who or what is in charge of the administrative state. No one knows the answer and this is for a reason. The main functioning of the modern state falls to a beast that does not exist in the Constitution.
The public mind has never had great love for bureaucracies. Consistent with Max Weber’s worry, they have put society in an impenetrable “iron cage” built of bloodless rationalism, needling edicts, corporatist corruption, and never-ending empire-building checked by neither budgetary restraint nor plebiscite.
Today’s full consciousness of the authority and ubiquity of the administrative state is rather new. The term itself is a mouthful and doesn’t come close to describing the breadth and depth of the problem, including its root systems and retail branches. The new awareness is that neither the people nor their elected representatives are really in charge of the regime under which we live, which betrays the whole political promise of the Enlightenment.
This dawning awareness is probably 100 years late. The machinery of what is popularly known as the “deep state” – I’ve argued there are deep, middle, and shallow layers – has been growing in the US since the inception of the civil service in 1883 and thoroughly entrenched over two world wars and countless crises at home and abroad.
The edifice of compulsion and control is indescribably huge. No one can agree precisely on how many agencies there are or how many people work for them, much less how many institutions and individuals work on contract for them, either directly or indirectly. And that is just the public face; the subterranean branch is far more elusive.
The revolt against them all came with the Covid controls, when everyone was surrounded on all sides by forces outside our purview and about which the politicians knew not much at all. Then those same institutional forces appear to be involved in overturning the rule of a very popular politician whom they tried to stop from gaining a second term.
The combination of this series of outrages – what Jefferson in his Declaration called “a long train of abuses and usurpations, pursuing invariably the same Object” – has led to a torrent of awareness. This has translated into political action.
A distinguishing mark of Trump’s second term has been an optically concerted effort, at least initially, to take control of and then curb administrative state power, more so than any executive in living memory. At every step in these efforts, there has been some barrier, even many on all sides.
There are at least 100 legal challenges making their way through courts. District judges are striking down Trump’s ability to fire workers, redirect funding, curb responsibilities, and otherwise change the way they do business.
Even the signature early achievement of DOGE – the shuttering of USAID – has been stopped by a judge with an attempt to reverse it. A judge has even dared tell the Trump administration who it can and cannot hire at USAID.
Not a day goes by when the New York Times does not manufacture some maudlin defense of the put-upon minions of the tax-funded managerial class. In this worldview, the agencies are always right, whereas any elected or appointed person seeking to rein them in or terminate them is attacking the public interest.
After all, as it turns out, legacy media and the administrative state have worked together for at least a century to cobble together what was conventionally called “the news.” Where would the NYT or the whole legacy media otherwise be?
So ferocious has been the pushback against even the paltry successes and often cosmetic reforms of MAGA/MAHA/DOGE that vigilantes have engaged in terrorism against Teslas and their owners. Not even returning astronauts from being “lost in space” has redeemed Elon Musk from the wrath of the ruling class. Hating him and his companies is the “new thing” for NPCs, on a long list that began with masks, shots, supporting Ukraine, and surgical rights for gender dysphoria.
What is really at stake, more so than any issue in American life (and this applies to states around the world) – far more than any ideological battles over left and right, red and blue, or race and class – is the status, power, and security of the administrative state itself and all its works.
We claim to support democracy yet all the while, empires of command-and-control have arisen among us. The victims have only one mechanism available to fight back: the vote. Can that work? We do not yet know. This question will likely be decided by the highest court.
All of which is awkward. It is impossible to get around this US government organizational chart. All but a handful of agencies live under the category of the executive branch. Article 2, Section 1, says: “The executive Power shall be vested in a President of the United States of America.”
Does the president control the whole of the executive branch in a meaningful way? One would think so. It’s impossible to understand how it could be otherwise. The chief executive is…the chief executive. He is held responsible for what these agencies do – we certainly blasted away at the Trump administration in the first term for everything that happened under his watch. In that case, and if the buck really does stop at the Oval Office desk, the president must have some modicum of control beyond the ability to tag a marionette to get the best parking spot at the agency.
What is the alternative to presidential oversight and management of the agencies listed in this branch of government? They run themselves? That claim means nothing in practice.
For an agency to be deemed “independent” turns out to mean codependency with the industries regulated, subsidized, penalized, or otherwise impacted by its operations. HUD does housing development, FDA does pharmaceuticals, DOA does farming, DOL does unions, DOE does oil and turbines, DOD does tanks and bombs, FAA does airlines, and so on It goes forever.
That’s what “independence” means in practice: total acquiescence to industrial cartels, trade groups, and behind-the-scenes systems of payola, blackmail, and graft, while the powerless among the people live with the results. This much we have learned and cannot unlearn.
That is precisely the problem that cries out for a solution. The solution of elections seems reasonable only if the people we elected actually have the authority over the thing they seek to reform.
There are criticisms of the idea of executive control of executive agencies, which is really nothing other than the system the Founders established.
First, conceding more power to the president raises fears that he will behave like a dictator, a fear that is legitimate. Partisan supporters of Trump won’t be happy when the precedent is cited to reverse Trump’s political priorities and the agencies turn on red-state voters in revenge.
That problem is solved by dismantling agency power itself, which, interestingly, is mostly what Trump’s executive orders have sought to achieve and which the courts and media have worked to stop.
Second, one worries about the return of the “spoils system,” the supposedly corrupt system by which the president hands out favors to friends in the form of emoluments, a practice the establishment of the civil service was supposed to stop.
In reality, the new system of the early 20th century fixed nothing but only added another layer, a permanent ruling class to participate more fully in a new type of spoils system that operated now under the cloak of science and efficiency.
Honestly, can we really compare the petty thievery of Tammany Hall to the global depredations of USAID?
Third, it is said that presidential control of agencies threatens to erode checks and balances. The obvious response is the organizational chart above. That happened long ago as Congress created and funded agency after agency from the Wilson to the Biden administration, all under executive control.
Congress perhaps wanted the administrative state to be an unannounced and unaccountable fourth branch, but nothing in the founding documents created or imagined such a thing.
If you are worried about being dominated and destroyed by a ravenous beast, the best approach is not to adopt one, feed it to adulthood, train it to attack and eat people, and then unleash it.
The Covid years taught us to fear the power of the agencies and those who control them not just nationally but globally. The question now is two-fold: what can be done about it and how to get from here to there?
Trump’s executive order on the Department of Education illustrates the point precisely. His administration is so uncertain of what it does and can control, even of agencies that are wholly executive agencies, listed clearly under the heading of executive agencies, that it has to dodge and weave practical and legal barriers and land mines, even in its own supposed executive pronouncements, even to urge what might amount to be minor reforms.
Whoever is in charge of such a system, it is clearly not the people.
Author
From the Brownstone Institute
By
“People are reacting because they hear things about me that aren’t true, characterizations of things I have said that are simply not true. When they hear what I have to say, actually, about vaccines, everybody supports it.”
Robert F. Kennedy, Jr. has been confirmed as Secretary of the US Department of Health and Human Services.
Within hours, my news feed was populated with angsty articles hand-wringing about the future of vaccines under Kennedy, whom legacy media and the establishment are certain would confiscate life-saving vaccine programs, raising the spectre of mass waves of illness and death.
In particular, this quote from Senator Mitch McConnell (R-KY), the only Republican who voted against Kennedy’s confirmation, appeared over and over again:
“I’m a survivor of childhood polio. In my lifetime, I’ve watched vaccines save millions of lives from devastating diseases across America and around the world. I will not condone the re-litigation of proven cures, and neither will millions of Americans who credit their survival and quality of life to scientific miracles.”
Yet, I could not find one piece of mainstream coverage of this quote that mentioned the astonishing fact that 98% of polio cases in 2023, the most recent year for which we have full data, were caused by the polio vaccine.
You read that correctly. In 2023, 12 wild polio cases were recorded (six in Afghanistan, six in Pakistan), with a further 524 circulating vaccine-derived cases, mostly throughout Africa. This trend is in keeping with data from the previous several years.
An important contextualising detail, wouldn’t you think?
The cause of this polio resurgence is that the world’s poor are given the oral polio vaccine (OPV), which contains a weakened virus that can replicate in the gut and spread in feces, causing vaccine-derived outbreaks.
People in rich countries get the inactivated polio vaccine (IPV), which does not contain live virus and therefore does not carry the risk of spreading the very disease it’s vaccinating against.
The World Health Organization (WHO) and vaccine-promoting organisations say that the way out of the problem is to vaccinate harder, as the argument goes that outbreaks only occur in under-vaccinated communities.
This may be well and good, but the total omission of the fact from media coverage that the goalposts have shifted from eradicating wild polio (not yet complete but nearly there, according to the WHO) to eradicating vaccine-derived polio (the main problem these days) underscores that this is why hardly anyone who knows anything trusts the media anymore.
A member of my extended family has polio. It’s nasty and life-altering and I wouldn’t wish it on anyone.
That’s why I would hope that any vaccines given would be safe – contracting polio from the supposedly preventative vaccine is the worst-case scenario, second only to death.
This is Kennedy’s expressly stated aim.
“When people actually hear what I think about vaccines, which is common sense, which is vaccines should be tested, they should be safe, everyone should have informed consent,” he said at his confirmation press conference.
“People are reacting because they hear things about me that aren’t true, characterisations of things I have said that are simply not true.
“When they hear what I have to say, actually, about vaccines, everybody supports it.”
Grown-ups who support vaccines can walk and chew gum. From the point of view of the public health establishment, the polio vaccine has prevented millions of cases and has nearly eradicated the disease.
At the same time, the world’s poorest are afflicted with polio outbreaks which we can work to prevent, and the safety of all polio vaccine products on the market should be subject to the rigorous standards applied to all other medicines.
Unless you think that poor people don’t matter, in which case the status quo might suit you fine.
Republished from the author’s Substack
Author
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