October 2022

The victory of Luiz Inácio Lula da Silva in Sunday’s Brazilian presidential election was greeted with relief by world leaders desperately looking for some good news on climate change.

The incoming president, widely known as Lula, used his victory speech to lay down a marker, promising an attempt to end deforestation in the Amazon rainforest, a crucial resource for regulating global CO2 levels.

“Brazil is ready to resume its leading role in the fight against the climate crisis, protecting all our biomes, especially the Amazon forest,” said Lula, who was returned to power with a narrow 50.9 percent to 49.1 percent margin, 12 years after first leaving the presidency.

With the U.N. COP27 climate talks due to start in Egypt in one week, multiple crises have diverted attention away from efforts to stave off further warming. The Egyptian hosts have issued dour warnings about the prospects of major progress at the talks.

But the defeat of incumbent Jair Bolsonaro, who has criticized global climate efforts and overseen surging deforestation of the Amazon, means a major new ally for countries pushing for a more ambitious global agenda.

Leaders including Germany’s Olaf Scholz, Canada’s Justin Trudeau, Australia’s Anthony Albanese, European Commission President Ursula von der Leyen and Spain’s Pedro Sánchez all said they were looking forward to working with Lula on protecting the global environment.

A shift in Brazil’s stance could add pressure on other members of the BRICS alliance of major emerging economies — Brazil, Russia, India, China and South Africa — said Laurence Tubiana, France’s former lead climate diplomat and head of the European Climate Foundation, raising the prospect of “a total realignment, maybe, of emerging countries.”

Bolsonaro, who had not conceded defeat on Monday, viewed international concern about the state of the Amazon as an unwelcome encroachment on Brazil’s territorial sovereignty. In four years in power, he stripped away protections from the forest and the indigenous tribes that manage vast areas of the Amazon basin. Into the void came ranchers, loggers and miners, leading to an increase in violent land conflict and loss of forest cover.

Lula, whose first two terms as president from 2003 to 2010 saw a sharp decline in forest loss, has promised to expand protected areas and rebuild policing capabilities. It is estimated that these moves could cut deforestation by 89 percent.

“When an indigenous child dies murdered by the greed of the predators of the environment, a part of humanity dies along with it,” Lula said. “Therefore, we will resume monitoring and surveillance of the Amazon, and fight any and all illegal activities.”

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PRAGUE — U.S. Trade Representative Katherine Tai traveled more than 4,000 miles to prevent a transatlantic trade war over electric vehicles, but her EU counterparts signaled on Monday that they would be a tough crowd to win round.

The growing spat hinges on U.S. legislation that encourages consumers via tax credits to “Buy American” when it comes to choosing an electric car.

At a time when the U.S. and Europe want to present a united front against Russia, this protectionist measure has triggered outrage in many EU countries, including France and Germany, two leading European carmaking nations. Beyond the EU, China, Japan and South Korea have also voiced concern.

After speaking with Tai at a meeting of EU ministers in Prague, the bloc’s trade chief Valdis Dombrovskis predicted it would be difficult to resolve the dispute.

“It will not be easy to fix it  — but fix it we must,” he said.

Among the 27 EU countries, anxiety about the U.S. measure is growing. Sweden’s new trade minister, Johan Forssell, whose country takes over the presidency of the Council of the EU in January, told POLITICO on Sunday that aspects of the U.S. legislation were “worrying” and “not in accordance with [World Trade Organization] rules.” 

Another senior official stressed: “It’s not only one or two member states, which are concerned … It’s also the small ones; they will have no access at all” to the U.S. market.

French President Emmanuel Macron and German Chancellor Olaf Scholz agreed over lunch last week that the EU should retaliate if Washington pushed ahead with the controversial bill. Macron floated the idea of a “Buy European Act” to strike back. 

The new tax credits for electric vehicles are part of a huge U.S. tax, climate and health care package, known as the Inflation Reduction Act, which passed the U.S. Congress in August.

The idea is that a U.S. consumer can claim back $7,500 of the value of an electric car from their tax bill. To qualify for that credit, however, the car needs to be assembled in North America and contain a battery with a certain percentage of the metals mined or recycled in the U.S., Canada or Mexico. 

Czech Trade Minister Jozef Síkela, whose country currently holds the presidency of the Council of the EU, said that European carmakers wanted to qualify for the scheme, just as the North Americans do.  

In its current form, the bill is “unacceptable,” and “is extremely protective against exports from Europe,” said Síkela as he walked into Monday’s meeting. “We simply expect that we will get the same status as Canada and Mexico.” 

“But we need to be realistic,” Síkela told reporters later. “This is our starting point in the negotiations and we’ll see what we’ll manage to negotiate at the end.”

In a bid to soothe tensions, a joint task force was set up last week by the European Commission and the U.S. The task force is supposed to meet at the end of this week, although the exact date isn’t yet fixed, according to the senior official. 

Asked whether Brussels would retaliate should no agreement be struck with Washington, Dombrovskis took a cautious approach: “Setting up this task force is already … a response of us, raising those concerns … At this stage, we are focusing on a negotiated solution before considering what other options there may be.” 

The midterm elections in the U.S., where President Joe Biden’s Democrats look likely to lose ground, compound the difficulties. 

It doesn’t seem like the tensions will be eased by the next Trade and Technology Council, which takes place between U.S. and European negotiators in early December. 

Dismay over the U.S. subsidies has overshadowed the preparatory work for the next TTC meeting, for which the EU and businesses on both sides of the Atlantic want to see rapid concrete results to avoid the perception that the format is simply a talking shop.

Tai herself had no immediate comment in Prague, but later released a statement on her meeting with Síkela that gave no hint of a breakthrough.

“Ambassador Tai and Minister Síkela discussed the ongoing work of the Trade and Technology Council, and the importance of achieving meaningful results for the December TTC Ministerial and beyond.  They also discussed the newly-created U.S.-EU Task Force on the Inflation Reduction Act,” the statement said.  

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The new 6-3 conservative majority on the Roberts Court is emboldened. The court overturned Roe v. Wade, jettisoning women’s reproductive freedom, for example, while constitutionalizing gun owners’ prerogative to carry concealed weapons in public spaces. In these and other cases, archconservatives like Justices Clarence Thomas and Samuel Alito wield originalism — the conservative-favored theory that constitutional meaning should be determined by what the Constitution’s original drafters or ratifying generation would have understood particular words to mean. Tethering constitutional interpretation to founding historical understanding is a highly debatable proposition that imposes the views of enslavers and the few, white, land-owning males who were allowed to participate fully as citizens then on “We the People,” now.

But when conservatives seek to impose color blindness on the 14th Amendment, they are tossing aside their beloved originalism and ignoring the original intent of the Radical Republicans who championed it. Led by Congressman Thaddeus Stevens, these avowed radicals were committed to the immediate, permanent end of slavery and rendering Black Americans full and equal citizens, a necessarily race-conscious project.

At today’s oral argument, Justice Amy Coney Barrett conceded that there was some original evidence of race-consciousness by the framers of the 14th Amendment. Other conservative justices focused on contemporary arguments about whether race-conscious admissions constituted racial discrimination and whether a temporal limit on such affirmative action is legally required. Oddly, the petitioners that brought these cases against Harvard and the University of North Carolina rely on the pro-integration Brown v. Board of Education case to press their demand of color blindness.

But a sincere originalist inquiry shows that petitioners have not met their burden of showing why multiple precedents should be overturned and race never be allowed to be considered.

Ever since the court’s ruling in the Bakke case in 1978, Harvard had been a poster child for how institutions of higher education may achieve robust diversity without discriminating against individuals. Bakke made it clear that no university may use rigid racial quotas as did the University of California Davis medical school when it set aside 16 places in a class of 100 for racial minorities. Justice Lewis Powell, the crucial swing vote in the case, voted against quotas, but cited “the Harvard College Admissions Program” as a model of moderation that would survive the strict scrutiny applied to policies that consider race. In ensuing decades, Harvard and other institutions constantly experimented, trying a range of tactics to achieve diversity without too much emphasis on race, while liberals and conservatives on the court battled over the meaning of equal protection as applied to university admissions.

Justices Sandra Day O’Connor and, later, Anthony Kennedy refused to accept the argument of conservatives to the right of them that the Equal Protection Clause required color blindness. The court upheld programs from the University of Michigan School of Law and University of Texas that emulated the flexibility of the Harvard model. But it struck down a Michigan undergraduate admissions program that assigned an extra 20 points to minority applicants as too rigid.

It makes sense that some consideration of race is constitutional. The framers of the 14th Amendment designed it to overrule the Dred Scott decision in which African Americans, free and enslaved, were deemed unworthy of American citizenship. The majority in Dred Scott tried to freeze in place a racial order, white supremacy, and the “peculiar institution” it justified, slavery, for all time — judicial despotism that accelerated civil war.

The Radical Republican architects of Reconstruction were trying to end a system of racial caste — slavery — and reconstruct American society so that Blacks and other non-whites were placed on a plane of civil and political equality with whites. Eighteen Civil War and Reconstruction historians submitted a “friend of the court” brief in the pending affirmative action case to underscore the 14th Amendment framers’ race-conscious intentions. They pointed to the Civil Rights Act of 1866, which declared that all persons would have the same rights “enjoyed by white persons,” including the power to own property and enter and enforce contracts. And the Freedmen’s Bureau Act, they noted, offered a phalanx of goods and services to Black Americans in order to facilitate the transition from slavery to full citizenship but gave white Civil War refugees more limited assistance. None of this legislation was color blind — it was expressly designed to treat the races differently in the service of making them more equal and adopted over President Andrew Johnson’s vetoes and cries of reverse-racism against whites.

Southern white supremacists and the Supreme Court itself viewed these efforts in zero-sum terms. An effort to confer equal civil rights on violently suppressed Black Americans unfairly made them the “special favorite” of the laws the court stated when it refused to uphold the Civil Rights Act of 1875. It took nearly another century, after Black Americans mounted a civil rights revolution, to gain the right to sit and eat where they wanted and to not be discriminated against in employment and housing and have those rights enforced by the courts.

Before then, the Supreme Court largely rendered the 14th Amendment a nullity for Black people, with formalistic ideas like “separate-but-equal,” refusing to see and name the real meaning of Jim Crow segregation for decades. Judicial hostility and a willed blindness to Black subordination ensured that the 14th Amendment, ratified in 1868, did not begin to broadly enforce racial equality against massive white resistance until the Warren Court, in a series of cases from Brown v. Board to Loving v. Virginia, breathed life into its words. The 14th Amendment became a well of rights and equality not only for Black Americans but also women seeking gender equality and reproductive freedom, and interracial couples and LGBTQ people seeking marriage equality, among other aspirants for fairness. In sum, the 14th Amendment framers contemplated and tried to deliver pluralistic, universal equality rather than white patriarchal dominance.

Since then, a political movement to reshape the judiciary in a conservative mold has borne fruit and normalized judicial doctrines like originalism, textualism and color blindness on behalf of people who seem uncomfortable with American social and cultural change. A new hostility to the project of racial reckoning has taken hold. Led by Chief Justice John Roberts, the court has undermined school integration, gutted the Voting Rights Act, refused to reign in extreme partisan gerrymandering which is de facto racial gerrymandering, and now seems poised to end affirmative action in college admissions and continue undermining American democracy. This, too, is contrary to the radical vision, embodied in the 15th Amendment, of conferring voting rights on non-whites in order to enable them to protect their equal status through politics.

When Kennedy was on the court, he straddled these tensions. He was a judicial conservative. He disliked and voted against public policies that, in his view, placed too much emphasis on the race of individuals. But he acknowledged our nation’s legacy of segregation in education and housing, the racial inequality that resulted, and the need for state actors to continue through race-conscious means to redress racial isolation. He preferred to apply the Equal Protection Clause with strict scrutiny in individual cases rather than impose a complete prophylactic ban on any consideration of race. Perhaps Barrett, an adoptive mother of Black children, is inclined toward this middle position.

Kennedy’s former law clerk, Justice Brett Kavanaugh, engages in race and gender conscious affirmative action in hiring law clerks. It would be ironic and unfortunate if he and Kennedy’s other former law clerk, Justice Neil Gorsuch, undermined the legacy of their former boss.

The lower court in the Harvard case applied four decades of settled precedent to the copious evidence in this case and concluded that Asian applicants to Harvard had not been discriminated against, nor had constitutional principles been violated. It found that Harvard “valued all types of diversity, not just racial diversity, it considered race as part of holistic review process and, without considering race, its share of students of particular races would significantly decrease.”

The willingness of the Roberts Court to overturn long established precedent undermines its legitimacy. Before the Civil War, the court enabled and protected the interests of enslavers. After the war, the court was hostile to the first Reconstruction; the Roberts Court is hostile to the second one, which began with the civil rights revolution.

The 14th Amendment, by definition, was a race-conscious effort to end structures of white supremacy, as an honest, originalist inquiry reveals. If judicial originalists want to stay true to their originalist values, they should be supporting rather than undermining that reckoning.

“I won’t do anything like that ever again,” he said. “It’s really embarrassing.”

Young’s testimony provided jurors with a firsthand account of the Oath Keepers’ preparation to travel to Washington ahead of Jan. 6 and their decision to join the crowd that surged past police and into the Capitol. He is one of the prosecutors’ key witnesses in the seditious conspiracy trial of Oath Keepers founder Stewart Rhodes and four associates, Kelly Meggs, Kenneth Harrelson, Jessica Watkins and Thomas Caldwell.

The five Oath Keeper leaders are charged with plotting to violently oppose the transfer of power from Donald Trump to Biden.

Young’s testimony was the second time a member of the group who pleaded guilty to participating in the conspiracy took the stand against his former colleagues. Jason Dolan, another Florida Oath Keeper, testified earlier in the month.

Dolan and Young both described struggles amid the Covid pandemic, combined with a deluge of pro-Trump media that fueled their beliefs that the 2020 election had been stolen. Young described an unhealthy diet of Facebook and YouTube content that he said left him “ginned up” about the election results. He withdrew from his family and became consumed by national politics, which led him to join the Oath Keepers in the weeks after Election Day 2020. His sister, Laura Steele, a fellow Oath Keeper, is awaiting trial for her part in the alleged obstruction conspiracy.

Young recalled first meeting some members of the group when he joined a security detail for Roger Stone, a longtime political adviser and ally of Trump, in December 2020.

Young described feeling deflated as Jan. 6 approached, that the anger of the Oath Keepers wouldn’t be enough to overturn the 2020 election, and he raised those concerns in Signal chat groups that included other Florida Oath Keepers and Rhodes, the national leader of the group. But he said Rhodes “re-galvanized” him by suggesting he might have a direct line of contact with Trump and urging the group to take a stand in Washington.

In Washington, Young joined a security detail for one of the speakers at Trump’s Jan. 6 “Stop the Steal” rally before heading to the Capitol with other Oath Keepers. On the way, he heard from Meggs that the Capitol had been breached.

“Unfortunately for me, at the time, it meant I felt it as like a Bastille-type moment in history, where in the French Revolution it was that big turning-point moment,” Young said. “It was exhilarating. I felt like I was going to be an important or an integral part of what was happening.”

Young recalled talking with Harrelson and other Oath Keepers about the “apparent equipment the police had on.”

“They had on plastic armor covering, we talked about how effective or ineffective that would be against weapons, firearms,” Young said.

At this point, Young said he and his sister began feeling concerned about the group’s intentions and their potential legal exposure. The two of them left for Steele’s house in North Carolina, where they burned their gear, he said.

“My sister and I were solidly in freakout mode and scared,” he said, adding, “That’s when the embarrassment about the whole thing kicked in … I’m going to have to tell my mom.”

Rhodes’ attorney grilled Young about whether any of the group’s leaders ever explicitly told him to storm the Capitol or described the objectives of the conspiracy. Young said he viewed it as an implicit plan. Young also agreed that as part of his plea negotiations with the government, he hopes to receive a relatively lenient sentence in exchange for his cooperation.

Europe has its own message for Elon Musk that it hopes will sink in: He’s about to face some of the world’s toughest online moderation rules and Brussels isn’t going to back down.

Musk, who made headlines by bringing a sink to Twitter HQ as he took over the major social media platform, has European policymakers up in arms, with officials and lawmakers lining up to warn the billionaire that he’ll have to abide by the bloc’s terms and activists leaning on Brussels to review his acquisition.

The Digital Services Act entered the EU’s official rulebook last week and allows authorities to order digital companies to take down illegal content based on EU and national law, and demands that platforms review content flagged by users. 

Musk — who is mostly known as the CEO of electric-car manufacturer Tesla, but now goes by “Chief Twit” in his Twitter bio — has repeatedly said he will abide by local laws, and stressed that no changes were made to Twitter’s current content-moderation policy. 

But Europe is well aware of Musk’s positioning as a “free-speech absolutist.” Whatever Musk is up to with Twitter, his advent as its boss will function as a stress test for the EU’s content-moderation policy: It’s one thing to draw up rules for a safer internet; it’s another to enforce them. 

“We have spoken [about the DSA], we have done it, now we have to apply,” Sandro Gozi, one of the lead lawmakers on new political advertising rules, said Monday. 

Elon’s escapades

Musk has made no secret that he regards Twitter as a “public town square,” where all speech, no matter how divisive or questionable, should be allowed — saying in March that failing to do so could even “undermine democracy.”   

In private texts made public during legal proceedings with Twitter over Musk’s attempts to call off the acquisition, Musk expressed concerns about the EU’s decision to ban Russian state media websites, such as RT, after Russia invaded Ukraine in February. 

“We [SpaceX, Musk’s space company providing satellite internet] have been told to block [RT’s] IP address. Actually, I find their news quite entertaining. Lot of bullshit, but some good points too,” Musk wrote to venture capitalist Antonio Gracias in March 2022. “Free speech matters most when it is someone you hate spouting what you think is bullshit.”

On the other hand, Musk stated in a March tweet that he opposed restrictions on free speech that go “far beyond the law” — in other words, content moderation should stick to the letter of each country’s regulation. In an open letter to Twitter advertisers last week, Musk reiterated that point, adding that the platform will not become a “free-for-all hellscape” and that he aims to make Twitter “warm and welcoming to all” — besides merely being lawful. 

Yet Musk’s frequent social media escapades, ranging from the arch to the outrageous, might give regulators pause.

Just days ago, Musk tweeted out a link to a conspiracy-theory website, suggesting that the October 28 assault of Paul Pelosi, husband of U.S. Speaker of the House Nancy Pelosi, was carried out by a male prostitute. On Sunday, when the New York Times reported on Musk’s tweet, the magnate implied that the U.S. newspaper was “false news.”

European compliance

Going forward, scrutiny will shift from Musk’s Twitter antics to the platform’s revamped content-moderation policy — and how it will live up to the bloc’s rules, which will start to roll out gradually in the next few months. 

EU executives and lawmakers involved were quick to make clear that whatever Musk’s approach to content moderation is, it will have to adhere to Europe’s rules. 

“In Europe, the bird will fly by our European rules,” EU industry chief Thierry Breton tweeted — referring to a clip from an earlier meeting with Musk, in which the business tycoon said the EU’s plans were “exactly aligned with my thinking.” The meeting happened in May when the DSA was still far from completion and Musk’s plans to buy Twitter were already known but were about to run into trouble. 

Musk reached out to Breton late last week to once again assure Brussels he will comply with the DSA, an EU official confirmed to POLITICO on Monday, after a prior Reuters report. A new meeting between the two could take place in the coming weeks.

Lawmakers involved echoed Breton’s line over the weekend, well aware that the law, after its publication in the bloc’s Official Journal on Thursday, now faces a crucial next phase: implementing the rules and enforcing them. 

Green MEP Kim van Sparrentak took aim at Musk’s promise to advertisers to show users “highly relevant ads” — referring to a provision in the DSA that rules out targeting users with ads based on certain sensitive data. 

“Musk says he’s buying Twitter out of charity, but at the same time, he wants to keep offering hyper-personalized ads. Fuzz stays part of the business model,” she tweeted — adding that under the DSA, targeting ads based on data like religion or sexual preference is no longer allowed.

Content council

Besides restrictions on targeted advertising, the DSA gives national authorities the ability to order platforms to take down what is illegal under their specific national laws, while also giving users the chance to flag content they suspect of being illegal — which platforms will have to review. 

Musk’s new “content moderation council” — which will have “widely diverse viewpoints,” he said — will have to take all of this into consideration. Twitter’s content-moderation policy also faces some EU deadlines: By February, it needs to disclose the number of its users. Based on the size of its EU user base, it will have to comply with the rules by either summer 2023 or February 2024.

But NGOs are already crying foul far ahead of those deadlines, based on the first media reports of Musk’s Twitter reign, putting pressure on the effective eventual implementation of the DSA. 

In a letter sent to the presidents of the European Commission, Council and Parliament, 12 NGOs asked for “an urgent security and regulatory review” of Musk’s Twitter takeover — citing the impact on “online standards and safeguards” as one of the reasons to do so. 

“The announcement of major staff cuts, the lifting of account bans and the rejection of content moderation is directly contrary to the letter and spirit of new EU legislation adopted earlier this year that seeks to make big tech companies take greater responsibility for hate speech and disinformation on their platforms,” the NGOs wrote.

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