Preview: The pain of recognition was acute for Wall Street on Tuesday, with major averages down sharply across the board.

Preview: It was not clear who would replace McCarthy, who was elected speaker in January after Republicans won control of the House in the 2022 midterm elections.

Preview: One-time bond king Bill Gross believes Treasury yields have the potential to shoot even higher in the short run.

Preview: Ripple said on Wednesday that it has obtained a full license to operate in Singapore, a strategic step toward growing its presence in the Asia-Pacific region.

Preview: This comes after Indonesia imposed a one-week deadline for TikTok to become a standalone app.

Preview: Former crypto titan Sam Bankman-Fried faces charges of fraud and money laundering related to the collapse of his crypto exchange, FTX.

Preview: Mortgage rates follow loosely the yield on the 10-year Treasury, which has been climbing this week.

Preview: Former President Donald Trump, who glared at NY Attorney General Letitia James on the tense first day of the trial, is present in the courtroom again for Day 2.

Preview: Friends, family members, and investors were all named in a list of potential witnesses.

Preview: Club holdings Meta Platforms and Apple made headlines Tuesday, and the reports suggest both tech giants are adapting to complicated operating environments.

Preview: • Fox-Dominion trial delay 'is not unusual,' judge says • Fox News' defamation battle isn't stopping Trump's election lies

Preview: The judge just announced in court that a settlement has been reached in the historic defamation case between Fox News and Dominion Voting Systems.

Preview: A settlement has been reached in Dominion Voting Systems' defamation case against Fox News, the judge for the case announced. The network will pay more than $787 million to Dominion, a lawyer for the company said.

Preview: • DeSantis goes to Washington, a place he once despised, looking for support to take on Trump • Opinion: For the GOP to win, it must ditch Trump • Chris Christie mulling 2024 White House bid • Analysis: The fire next time has begun burning in Tennessee

Preview: • 'A major part of Ralph died': Aunt of teen shot after ringing wrong doorbell speaks • 20-year-old woman shot after friend turned into the wrong driveway in upstate New York, officials say

Preview: Newly released body camera footage shows firefighters and sheriff's deputies rushing to help actor Jeremy Renner after a near-fatal snowplow accident in January. The "Avengers" actor broke more than 30 bones and suffered other severe injuries. CNN's Chloe Melas has more.

Preview: It's sourdough bread and handstands for Jake Gyllenhaal and Jamie Lee Curtis.

Preview: A tiny intruder infiltrated White House grounds Tuesday, prompting a swift response from the US Secret Service.

Preview: An arrest warrant has been issued for controversial Biden administration official Sam Brinton in connection with a second alleged theft at an airport in Las Vegas. Brinton, who works for the Department of Energy, was already placed on leave after he allegedly stole a woman’s luggage at Minneapolis-St. Paul (MSP) International Airport late last month. ...

Preview: Inside the Illinois State Capitol sits a display of several religious exhibits for the holiday season, which includes a Jewish menorah, the Christian nativity scene, and the “Serpent of Genesis” from the Satanic Temple, as reported by local radio media. Consisting of a leather-bound copy of astronomer Nicolaus Copernicus’ “De Revolutionibus Orbium Coelestium” — which ...

Preview: The latest release of the “Twitter Files” Thursday evening revealed that leftists at the highest level of the company, who have all since been fired or been forced to resign, targeted one of the most popular right-wing accounts on the platform with repeated suspensions despite the fact that they secretly admitted that she did not ...

Preview: The second installment of the so-called “Twitter Files” was released Thursday evening after the company turned over documents to a journalist who then started to publish the findings on the platform. Musk released internal company communications through journalist Matt Taibbi on Friday about the company’s censorship of the New York Post’s Hunter Biden laptop story ...

Preview: The transgender community has turned on a once revered surgeon specializing in sex change surgeries after a patient posted graphic photos of an allegedly botched operation. Dr. Sidhbh Gallagher, a Miami-based surgeon specializing in double mastectomy surgeries for transgender-identifying patients, has been heavily criticized for performing the elective surgery on minors. She has also earned ...

Preview: Video emerged Thursday afternoon of Brittney Griner being swapped on a runway for convicted Russian terrorist Viktor Bout after Democrat President Joe Biden agreed to the trade. The video showed Griner, who is wearing a red jacket, walking across the tarmac with three men while Bout walked toward her with a man standing next to ...

Preview: After a woman claimed to be the daughter of a serial killer in a recent interview, a search of the supposed location of buried remains has turned up nothing. Federal, state, and local authorities did not find any evidence or remains after scouring the earth for several days in Thurman, Iowa, a small town just ...

Preview: A FedEx contract driver strangled a 7-year-old girl after hitting her with his van in Texas late last month, according to arrest warrant documents. Tanner Horner, a 31-year-old from Fort Worth, has been arrested and charged with capital murder of a person under 10 years old and aggravated kidnapping in the death of Athena Strand, ...

Preview: Disabled veteran Congressman Brian Mast (R-FL) took issue with fellow Congresswoman Sheila Jackson Lee (D-TX) over the way she chose to transport her American flag while she was moving from one office to another. Mast, who lost both legs and his left index finger in 2010 when he stepped on an improvised explosive device (IED) while ...

Preview: Sen. Bob Menendez (D-NJ), chairman of the Senate Foreign Relations Committee, slammed President Joe Biden Thursday for releasing notorious terrorist Viktor Bout in exchange for Brittney Griner. Griner, who has a criminal record in the U.S. stemming from a domestic violence incident several years ago, was arrested in Russia back in February on drug charges, ...

Preview: MCCARTHY OUSTED (Main headline, 1st story, link) Related stories: HISTORIC REBUKE MAGA CHAOS GAETZ GETS A SCALP Drudge Report Feed needs your support!   Become a Patron

Preview: HISTORIC REBUKE (Main headline, 2nd story, link) Related stories: MCCARTHY OUSTED MAGA CHAOS GAETZ GETS A SCALP

Preview: MAGA CHAOS (Main headline, 3rd story, link) Related stories: MCCARTHY OUSTED HISTORIC REBUKE GAETZ GETS A SCALP

Preview: GAETZ GETS A SCALP (Main headline, 4th story, link) Related stories: MCCARTHY OUSTED HISTORIC REBUKE MAGA CHAOS Drudge Report Feed needs your support!   Become a Patron

Preview: Judge Gags Trump After Ex-President Attacks Law Clerk... (First column, 1st story, link) Related stories: Faces 30 Days Behind Bars If Violates... Violent rhetoric ramps up... The Don drops off FORBES list of wealthiest Americans... What's it like to be prosecuted by Jack Smith? Fulton floats plea deals to defendants...

Preview: Faces 30 Days Behind Bars If Violates... (First column, 2nd story, link) Related stories: Judge Gags Trump After Ex-President Attacks Law Clerk... Violent rhetoric ramps up... The Don drops off FORBES list of wealthiest Americans... What's it like to be prosecuted by Jack Smith? Fulton floats plea deals to defendants...

Preview: Violent rhetoric ramps up... (First column, 3rd story, link) Related stories: Judge Gags Trump After Ex-President Attacks Law Clerk... Faces 30 Days Behind Bars If Violates... The Don drops off FORBES list of wealthiest Americans... What's it like to be prosecuted by Jack Smith? Fulton floats plea deals to defendants...

Preview: The Don drops off FORBES list of wealthiest Americans... (First column, 4th story, link) Related stories: Judge Gags Trump After Ex-President Attacks Law Clerk... Faces 30 Days Behind Bars If Violates... Violent rhetoric ramps up... What's it like to be prosecuted by Jack Smith? Fulton floats plea deals to defendants...

Preview: What's it like to be prosecuted by Jack Smith? (First column, 5th story, link) Related stories: Judge Gags Trump After Ex-President Attacks Law Clerk... Faces 30 Days Behind Bars If Violates... Violent rhetoric ramps up... The Don drops off FORBES list of wealthiest Americans... Fulton floats plea deals to defendants...

Preview: Fulton floats plea deals to defendants... (First column, 6th story, link) Related stories: Judge Gags Trump After Ex-President Attacks Law Clerk... Faces 30 Days Behind Bars If Violates... Violent rhetoric ramps up... The Don drops off FORBES list of wealthiest Americans... What's it like to be prosecuted by Jack Smith?

Preview: Baltimore Police Department have confirmed that there is an active shooter situation near Morgan State University on Tuesday, October 3.

Preview: A Texas woman who poured boiling water on a young woman while also depriving her of food and blocking her from the outside world was sentenced to 75 years in prison.

Preview: A Florida man who killed two women he met at local bars during a multi-day crime spree was put to death Tuesday by lethal injection, officials said.

Preview: An 11-year-old Florida boy allegedly shot two of his Pop Warner football teammates after a fight over a bag of chips, authorities said Monday.

Preview: A Texas grandfather accidentally shot his grandson in the shoulder with a blank shot while officiating a wedding in Nebraska.

Preview: A Louisiana woman resigned from her position as a teacher last week and has since been arrested on allegations she gave birth to a student's baby.

Preview: Seattle, Washington, police are searching for a man wearing a dress and flip flops who allegedly attacked two people in their 60s with a hammer at a light rail station.

Preview: Analyses of shell casings found near the New Hampshire site of an alleged double homicide by Logan Clegg have taken center stage at his trial.

Preview: Two West Virginians have been arrested and charged with felony child neglect after their three adopted children were found living in deplorable conditions.

Preview: A 24-year-old Florida woman faces charges after police say she helped carjack a man she met on a dating app.

Preview: Kevin McCarthy ousted as House speaker  The Washington Post House makes history, removes Kevin McCarthy as Speaker  KTLA 5 House Speaker fight is distracting from the national debt | Opinion  Deseret News Opinion: Matt Gaetz broke Kevin McCarthy for sport  CNN Opinion | Americans Deserve Better From the House of Representatives  The New York Times View Full Coverage on Google News

Preview: Baltimore police confirm multiple victims after an active shooter situation at Morgan State University  CNN At least four people shot on campus of Morgan State University in Baltimore, authorities say  Yahoo News Active shooter at Morgan State University in Baltimore: At least 4 people shot | LiveNOW from FOX  LiveNOW from FOX Multiple people shot at Morgan State University | PHOTOS  Baltimore Sun Active shooter situation at Morgan State University  FOX 5 Washington DC View Full Coverage on Google News

Preview: Suspect in kidnapping of 9-year-old Charlotte Sena in upstate New York identified  ABC News Ransom note leads authorities to kidnapped 9-year-old girl in while camping in New York  WRAL Senas doing well after Charlotte’s rescue: Family friend  NewsNation Now Charlotte Sena updates: Family, school rejoice as missing NY girl found  Democrat & Chronicle Corinth Central School District students wear orange to celebrate Charlotte's return  WRGB View Full Coverage on Google News

Preview: Judge in Trump's New York civil trial issues gag order after Trump posts about clerk  CBS News Judge issues gag order and rebukes Trump after social media post attacking his clerk  CNN Judge places Trump under gag order after social media attack on clerk  MSNBC Judge Issues Gag Order for Trump in Fraud Trial After Post Targeting Clerk  The New York Times It’s up to the judges to gag Trump now  The Hill View Full Coverage on Google News

Preview: Laphonza Butler sworn in as California's newest U.S. senator  Los Angeles Times Laphonza Butler Sworn In to Replace Dianne Feinstein  TIME Laphonza Butler sworn in as California’s newest senator  CNN Did Newsom dig a new hole by appointing Laphonza Butler to the Senate?  VC Star Gavin Newsom's Feinstein replacement was highlight reel of error  San Francisco Chronicle View Full Coverage on Google News

Preview: Migrant buses arriving in Chicago spark tensions  FOX 32 Chicago Illinois warned to prepare for up to 25 buses of migrants a day as state pleads for federal help  NBC Chicago Which cities are getting the most migrants bused to them?  NewsNation Now 'How dare you?': Chicago residents call out Johnson over proposed migrant housing at fieldhouse  FOX 32 Chicago Backlash to migrants grows in Latino community as new shelter opens  Chicago Tribune View Full Coverage on Google News

Preview: Philadelphia police say they have a person of interest in journalist's fatal shooting  NBC News Journalist killed Philadelphia: Police seek person of interest after journalist shot 7 times ID'd as Josh Kruger  WLS-TV Philadelphia police seek person of interest in murder of local journalist  6abc Philadelphia Josh Kruger: Police ID person of interest in murder of Philadelphia journalist  FOX 29 Philadelphia Philadelphia journalist shot and killed at home  NBC News View Full Coverage on Google News

Preview: New Mexico police officer charged with voluntary manslaughter  KOB 4View Full Coverage on Google News

Preview: Trump back in court for second day of New York civil fraud trial  Axios Judge brutally debunks Trump's claim that he threw out most of the NY fraud case against him  Yahoo News New trial hits Trump’s image as the ultimate winner  CNN Extra Time: Donald Trump blasts fraud lawsuit; student loan payments resume  WABC-TV Real estate insiders question how Trump fraud judge valued Mar-a-Lago  CNN View Full Coverage on Google News

Preview: As the president pushes gun safety, Hunter Biden will mount a Second Amendment defense  POLITICO Hunter Biden Pleads Not Guilty to Federal Gun Charges  WRAL Hunter Biden’s Legal Troubles, Explained: A Gun, Unpaid Taxes and More | WSJ  Wall Street Journal Hunter Biden enters plea to gun charges. What about his other suspected crimes?  Fox News Why a rare gun charge against Hunter Biden could misfire  Yahoo News View Full Coverage on Google News

Preview: Rep. Kevin McCarthy (R-Calif.) said he will "look" at remaining in Congress after a group of Republicans voted with House Democrats Tuesday to remove him as Speaker. ‘I’ll look at that,” McCarthy said when asked at a press conference if he will remain in Congress. McCarthy did rule out considering another position with leadership. "There's...

Preview: Presidential candidate Vivek Ramaswamy agreed with those attacking Republicans who removed Rep. Kevin McCarthy (R-Calif.) from the Speakership on Tuesday, but said the resulting chaos is actually a good outcome. “The point of removing the House Speaker was to sow chaos. That's what the critics of Matt Gaetz and everybody else is saying,” Ramaswamy said...

Preview: Rep. Matt Gaetz (R-Fla.) shot back at Rep. Kevin McCarthy (R-Calif.) after the former Speaker said the Republicans who voted to oust him Tuesday “don’t get to say they’re conservative because they’re angry and chaotic.” Gaetz led a group of eight Republicans who voted with all House Democrats to pass a motion to vacate the...

Preview: Former House Speaker Kevin McCarthy took a swing at Republicans who helped oust him from the Speakership Tuesday, saying at a press conference that "they are not conservatives." "They voted against, one, the greatest cut in history that Congress has ever voted for. They voted against work requirements. They voted against border security," McCarthy said....

Preview: Senate Republican Leader Mitch McConnell (R-Ky.) thanked former Speaker Kevin McCarthy (R-Calif.) for his service to the nation after the embattled ex-leader announced he would not run again to serve as Speaker. McConnell often broke with McCarthy on key policy and political questions, but in the end praised what he called their “close working...

Preview: Speaker Pro Tem Patrick McHenry (R-N.C.) ordered Speaker Emerita Nancy Pelosi (D-Calif.) to vacate her Capitol hideaway office so he could take it over, just hours after becoming acting Speaker, Pelosi’s office said Tuesday. McHenry became acting Speaker after Rep. Kevin McCarthy (R-Calif.) was ousted from the role Tuesday, the first time a Speaker has...

Preview: Rep. Tim Burchett (R-Tenn.) on Tuesday criticized how former Speaker of the House Kevin McCarthy led while serving in the role he was ousted from on Tuesday. “His style of leadership’s gotta change,” Burchett said in an interview on The Hill on NewsNation. Burchett was one of eight Republicans who voted for a motion to...

Preview: Rep. Troy Nehls (R-Texas) announced late Tuesday he will file paperwork to nominate former President Trump to be the next Speaker of the House. “This week, when the U.S. House of Representatives reconvenes, my first order of business will be to nominate Donald J. Trump for Speaker of the U.S. House of Representatives,” Nehls said...

Preview: Welcome to The Hill's Technology newsletter {beacon} Technology Technology The Big Story What to know about the federal emergency alert test The federal government is set to test its emergency alerts Wednesday, but there is no reason for alarm. © iStock U.S. televisions and cell phones will be bombarded with alerts Wednesday at 2:20 p.m....

Preview: The House voted Tuesday to oust Speaker Kevin McCarthy (R-Calif.), a vote that hasn't taken place in more than 100 years. Rep. Patrick McHenry (R-N.C.) became interim House Speaker. Rep. Matt Gaetz (R-Fla.) followed through on his promises and moved Monday to force a vote on a motion to vacate. On Tuesday afternoon, the chamber...

Preview: Patrick McHenry is coming under fire for targeting the former House speaker in one of his first moves.

Preview: Police say multiple people have been shot at Morgan State University in Baltimore.

Preview: The party's mascot may be the donkey, but Republicans tried to make them the scapegoats.

Preview: The layoffs at EMILY’s List led to criticism of the former labor leader.

Preview: After Rep. Matt Gaetz announced he planned to file a “ motion to vacate the chair,” McCarthy tweeted out three words: “Bring it on.”

Preview: The California Republican was suddenly removed from his post, the first time the House has voted its speaker out in the chamber's history.

Preview: Tennessee House Speaker Cameron Sexton led the movement to expel Jones, the lawsuit states.

Preview: The crude speculation comes days after a judge released the former NFL player from the Tuohys' conservatorship.

Preview: U.S. regulators have added another option for fall COVID-19 vaccination, updated shots made by Novavax.

Preview: Venice Mayor Luigi Brugnaro wrote on social media that the scene of the crash was “apocalyptic.”

Preview: Home prices rose in August, with New England states leading the pack, CoreLogic economist says.

Preview: New Zealand's central bank kept interest rates unchanged ahead of a national election later this month where cost-of-living pressures and economic management are top concerns of voters.

Preview: The Consumer Financial Protection Bureau faces a high-stakes legal fight.

Preview: ‘We don’t have savings or investments, except for my $10,000 money-market fund and his $10,000 money-market fund.’

Preview: Shares of MSP Recovery, which does business as LifeWallet, sank late Tuesday after the company said it would enact a 1-for-25 reverse stock split.

Preview: Hours after being ousted as speaker of the House, Rep. Kevin McCarthy said he was "at peace" with how it played out and that he "wouldn't change a thing."

Preview: Fight for the next speaker is better to hammer out now than on the eve of the next possible shutdown, analyst says

Preview: The U.S. House of Representatives approves a measure that removes Kevin McCarthy, a California Republican, from his position as the chamber's speaker.

Preview: "His daughter is extremely dependent upon him and his generosity."

Preview: ‘My grandfather was a successful investor and knew his children very well.’

Preview: Matt Gaetz ousted Kevin McCarthy on a motion to vacate, leaving Patrick McHenry as the temporary leader of the House until a new speaker election can be held.

Preview: Shortly before 1 p.m. ET on Tuesday, New York prosecutors finished their direct examination of Donald Bender, Donald Trump’s former lead accountant.

Preview: New revelations about the Alliance Defending Freedom highlight how eager Trump-appointed judges are to decide cases without interrogating the underlying facts.

Preview: J. Michael Luttig, the retired federal judge and Trump-era truth-teller, was not impressed with an editorial dismissing the prospect of the 14th Amendment barring Trump from holding office.

Preview: California Gov. Gavin Newsom fulfilled a vow to appoint a Black woman to Dianne Feinstein’s Senate seat. He chose a popular figure, but controversy remains.

Preview: Details like the ones revealed about a secret Cold War program in St. Louis aren’t new to those aware of the U.S.' history of unethical and often racist medical experiments.

Preview: Rep. Victoria Spartz is prepared to resign from Congress unless there's a debt commission. But we've already had plenty of such commissions, and they all failed

Preview: One of the most important questions in American constitutional politics is whether the 14th Amendment disqualifies Trump from holding the presidency again.

Preview: Tommy Tuberville boasted that “there’s nobody more military” than him on the Senate Armed Services Committee. Mark Kelly's pushback was important — and accurate

Preview: In the wide-ranging interview, Biden spoke of the threat Trump poses to democracy, as well as Alito’s claim that Congress can’t regulate the Supreme Court.

Preview: Josh Hart is 6-feet-4 but is comfortable fighting in the paint with giants, a task he’ll be required to undertake as the Knicks’ backup power forward.

Preview: A Florida man got more than he bargained for after his dating app match set him up to get carjacked, police said.

Preview: So much of the Giants’ issues were encapsulated on their failed "tush-push" play.

Preview: Jets running back Breece Hall shared on X, formerly known as Twitter, that a PlayStation user went after him for not scoring TDs "in real life."

Preview: The Nets have gone through so much it’s easy to forget that Jacque Vaughn never got a chance to have a training camp.

Preview: "It's a cargo van, so there are no seats back there. At some point, making a maneuver in the park, one of the passengers was ejected from the van and sustained serious severe head trauma."

Preview: Political action groups affiliated with former House Speaker Kevin McCarthy shelled out millions — to support the same Republicans who ousted him Tuesday.

Preview: The "Mr. Robot" actor and the "Crown" star beamed as they left Laurent restaurant together after a Miu Miu party during Paris Fashion Week.

Preview: It was easy to greet Kyle MacLean’s presence in the Islanders’ organization with an eye roll when he signed as an undrafted free agent.

Preview: Doc Antle must paw over thousands of dollars and stay away from exotic animals after he was sentenced Tuesday for illegally purchasing endangered lion cubs in Virginia.

Preview: A handful of far-right Republicans broke with their party and voted to remove Kevin McCarthy from his leadership post. He said he would not run again.

Preview: The glib Californian made many promises and paid a price when he was unable to fulfill them. But his demise also reflected the challenge of wielding a Republican majority that refuses to be governed.

Preview: In an overwhelmingly Republican district, Mr. Gaetz is admired for shaking up the House, but he also has plenty of critics.

Preview: The former president attacked Justice Arthur F. Engoron’s clerk in a social media post that soon disappeared. He was called to account behind closed doors, then chastised in court as the judge issued a limited “gag order.”

Preview: Recent incendiary statements by the former president come at a time when his supporters are already angry over his indictments.

Preview: The Justice Department has invoked a 200-year-old law to detain thousands of undocumented immigrants as witnesses in smuggling cases. Judges have locked up some for six months or more.

Preview: El Departamento de Justicia ha invocado una ley de 200 años de antigüedad para detener a miles de migrantes indocumentados a fin de que declaren en casos contra traficantes de personas. Algunos han estado privados de la libertad seis meses o más.

Preview: Even though it’s now part of NATO, a wary Finland still requires men to serve their country. Women can volunteer, and many do.

Preview: Military analysts say that Russian commanders have been using a tactic known as “elastic defense” to prevent Ukraine from holding villages and other positions as staging grounds for future attacks.

Preview: The struggle to save Gagauz, a Turkic tongue used by dwindling numbers of people in an ethnic enclave of Moldova, reflects the emotional power of language loyalties across the former Soviet Union.

Preview: A preview of the media circus to come—and clues about who will testify against Sam Bankman-Fried.

Preview: Stories about the new Supreme Court term, the FTX trial, Laphonza Butler, and more.

Preview: North Carolina Rep. Patrick McHenry will oversee a new speaker election—but it might not be quick.

Preview: A few conservatives appeared skeptical, too, if not as contemptuous as their liberal counterparts.

Preview: Wes Anderson’s Roald Dahl shorts are some of his most beautiful films, about some of his ugliest subjects.

Preview: Talking about two-week boyfriends and identity politics with guests HG Gruebmeyer and Leo Briggs.

Preview: There is once again much mess in Congress’ most colorful chamber.

Preview: Right-wing groups are constructing straw man plaintiffs to stand in for conservative interests, and the GOP-appointed justices are happy to play along.

Preview: Roxane Gay answers your questions.

Preview: Test your wits and see how you stack up on the leaderboard.

Preview: If Facebook et al. are pushing a "radical leftist narrative," why don’t they have a constitutional right to do that?

Preview: State v. Valdiglesias Lavalle, decided Thursday by the Washington Supreme Court (in a unanimous opinion written by Justice Sheryl Gordon McCloud), involved Washington's criminal solicitation law, which makes it a crime to, with intent to promote or facilitate the commission of a crime, … offer[] to give or give[] money or other thing of value…

Preview: Why Article I's residence requirement applies to appointees.

Preview: Away from the speeches of the party's presidential candidates, the Republican Huntington Beach city attorney talked up his efforts to thwart state zoning reforms.

Preview: The president voiced support for the union's goals on the picket line but companies are already struggling to build fuel-efficient cars that Biden wants to prioritize.

Preview: The libertarian-adjacent Kentucky congressman says he's against the effort to depose Speaker Kevin McCarthy.

Preview: FCC Chair Jessica Rosenworcel has initiated a new rulemaking that would enact what are largely the same net neutrality rules tried back in 2016.

Preview: Episode 474 of the Cyberlaw Podcast

Preview: [I'm reposting this because the linked article disappeared from SSRN's website soon after I posted it, until a copyright permission issue was resolved.] My article, Students for Fair Admissions and the End of Racial Classification as We Know It, has been published in the new Cato Supreme Court Review. Here is the abstract: The Supreme…

Preview: Plus: Donald Trump's creative accounting, those sneaky vegans, brain drain, and more...

Preview: See who's running

Preview: All four cases explained

Preview: The Crossword

Preview: Start the day smarter ☀️

Preview: After Hurricane Idalia made landfall on Wednesday, Florida communities are emerging to see its destruction with hopes and plans to recover.

Preview: Downgraded to a tropical storm, what had been Hurricane Idalia powered across Georgia and the Carolinas on Wednesday evening.

Preview: The 81-year-old Republican Senate minority leader struggled to answer reporters' questions in Kentucky, requiring help and drawing questions about his health

Preview: Nebraska volleyball set a women's sports attendance record Wednesday night as 92,003 fans descended on Memorial Stadium to watch the match vs. Omaha.

Preview: At least 73 people died when a fire ripped through a multi-story building in Johannesburg overtaken by homeless people, authorities said Thursday.

Preview: As the storm moves away from the shore, it can cause an additional life-threatening hazard: inland flooding. Georgia and the Carolinas are at risk.

Preview: FTC chair Lina Khan gained widespread notoriety for criticizing how Amazon uses its power to harm competition and consumers. | Vox; Chip Somodevilla/Getty Images The Federal Trade Commission, led by longtime Amazon critic Lina Khan, finally makes its move. The Federal Trade Commission thinks the Everything Store is an illegal monopoly, and it’s suing the company to stop it — which could mean breaking up the company. In its lawsuit filed on September 26, the antitrust agency, joined by 17 states, accuses Amazon of interlocking anti-competitive actions that, it says, have inflated prices for consumers, harmed third-party sellers in Amazon’s marketplace, and made it nearly impossible for other e-commerce platforms and retailers to compete. The complaint includes 20 charges, including monopoly maintenance of the online superstore market and the online marketplace services market, unfair methods of competition, and violations of various state antitrust laws. It’s a significant milestone in the antitrust reform movement led by FTC Chair Lina Khan, which has zeroed in on Big Tech and the business practices of some of the biggest companies in the world. This is the first case filed under her leadership that takes on those practices and one of those companies. It just so happens that it’s the company she built her career on criticizing. “These tactics enable Amazon to protect its monopoly power from competitive checks,” Khan said in a briefing with reporters. “And Amazon is now exploiting that monopoly power to harm its customers, both the tens of millions of families that shop on Amazon’s platform and the hundreds of thousands of sellers that use Amazon to reach them.” She later added: “The stakes here are high.” If the FTC is successful, it could have huge implications for Big Tech and e-commerce alike. It will show that government agencies can take these companies on and win. Amazon could be subject to penalties up to being forced to break up into smaller companies to handle its separate lines of business. That may create a more level playing field for sellers that currently just can’t compete with Amazon’s reach, resources, and control. People who support the case believe it will mean lower prices and a better shopping experience, as Amazon will have more competitors for people’s business. Consumers, third-party sellers, and other e-commerce platforms would benefit from that. But opponents say it will be bad for consumers, who won’t be able to get all of the Amazon services they’ve become so used to and may even pay higher prices. “If we succeed, competition will be restored and people will benefit from lower prices, greater quality, greater selection as a result,” Khan said. An FTC loss, on the other hand, would indicate that Big Tech companies aren’t doing anything wrong in the eyes of current US antitrust law. That could set the antitrust reform movement back even further and embolden Big Tech companies. “The practices the FTC is challenging have helped to spur competition and innovation across the retail industry, and have produced greater selection, lower prices, and faster delivery speeds for Amazon customers and greater opportunity for the many businesses that sell in Amazon’s store,” David Zapolsky, Amazon senior vice president of global public policy and general counsel, said in a statement. “If the FTC gets its way, the result would be fewer products to choose from, higher prices, slower deliveries for consumers, and reduced options for small businesses — the opposite of what antitrust law is designed to do.” Lawmakers who have criticized Amazon and Big Tech more generally hailed the move. “Dominant digital platforms like Amazon increasingly use their power to increase prices, preference their own products and services, and harm small businesses. These anti-competitive practices are bad for consumers, entrepreneurs, and businesses, and I commend the Federal Trade Commission for taking action,” Sen. Amy Klobuchar (D-MN), who recently headed up an attempt to pass antitrust laws that address Big Tech companies, said in a statement. Sen. Elizabeth Warren, who made “break up Big Tech” a campaign slogan during her 2020 presidential run, tweeted that the lawsuit is “a by-the-book example of reining in monopolistic behavior. FTC has a responsibility to enforce our antitrust laws.” The case against Amazon Much of the lawsuit centers around how Amazon essentially forces third-party sellers who use its Marketplace platform — which accounts for about 60 percent of Amazon’s sales — to purchase additional services from Amazon. Amazon’s critics say the company has gotten greedier over the years, resulting in sellers having to cut their profit margins or raise prices to consumers to account for Amazon’s ever-increasing charges and fees. The FTC says that many sellers pay nearly 50 percent of their revenue to Amazon when all of the fees are combined, and those costs can be passed on to the consumer. One way it does this, the suit says, is through search ads, which allow sellers to have their products placed prominently in customer searches, above products that organically earned a top spot. The lawsuit alleges that Amazon has increased the number of ads in search results over the years, making sellers feel that the only way potential customers will see their products at all is if they pay Amazon for ads. This makes the shopping experience worse for consumers who have to wade through them to find organic results. “These ads have been enormously lucrative for Amazon, but shoppers face less relevant results and are steered toward more expensive products, while sellers face an additional set of fees,” Khan said. The lawsuit also addresses Amazon’s “buy box.” When several sellers offer the same product, Amazon picks which one gets the sale when a customer clicks to make a purchase — whether “add to cart” or “buy now.” That’s the buy box. Everyone else is relegated to an “other sellers” section, which is farther down the page. Most customers don’t bother or even know to check it, which makes that buy box placement crucial for sellers. But Amazon has certain conditions that make it more likely that the seller will get that buy box — or, if they don’t comply with them, make it impossible to get it at all. Those conditions often mean giving Amazon more money. Qualifying for Prime is one of them, but sellers pretty much have to use Amazon’s “Fulfilled by Amazon” logistics and shipping service in order to be eligible for it. Amazon has technically allowed sellers to use other fulfillment services, but it’s exceedingly difficult for any third-party fulfillment service to meet Amazon’s requirements, and Amazon closed off enrollment to the Seller Fulfilled Prime option years ago. A few months ago, however, Amazon announced it would re-open enrollment “later this year.” Notably, it has also changed some of these practices in the European Union recently as part of a settlement to end an antitrust case there, including adding a second buy box and allowing seller-fulfilled Prime. The lawsuit also takes on Amazon’s “fair pricing” agreements, which say that sellers can’t offer their products for “significantly” less in other stores, or else risk being suppressed in search results or having their sales stopped entirely, a move that Amazon frames as protecting its customers from predatory pricing. But the FTC says it means that Amazon sets an artificially high price floor, since sellers incorporate Amazon fees into their prices and won’t offer lower prices anywhere else for fear of incurring Amazon’s wrath. This also means other online platforms can’t offer lower prices to compete with Amazon. California and Washington, DC, sued the company over these agreements, but they’ve fared quite differently in the courts: One judge threw DC’s case out, and another allowed California’s to continue. These are different courts, different judges, and different state antitrust laws, which explain the different outcomes. There’s also a section detailing how Amazon prohibits first-party sellers — companies that sell products wholesale to Amazon, which Amazon then sells to consumers — from offering goods to competitors at lower prices, but the details are heavily redacted. Another almost entirely redacted section addresses something called “Project Nessie,” which is some kind of algorithm. The Wall Street Journal claims to have seen the complaint behind those redactions, and reports that Project Nessie was designed to raise Amazon’s prices as much as possible and see if competitors matched. That would increase everyone’s profits while making customers pay more. (Winner Sells All, by former Vox reporter Jason Del Rey, says that Project Nessie was used to prevent price-matching “death spirals” with competitors by not matching prices if it determined that they were too low.) Amazon says that sellers set their own prices, though the company has “tools and education to help them offer competitive prices,” something that other retailers also do. The end results, the company says, is that consumers are paying lower prices, not, as the FTC alleges, higher ones. While the FTC’s case highlights seller complaints (many of which are redacted) over Amazon’s rules for them, Amazon says it has helped thousands of sellers reach millions of customers and grow their businesses beyond what they could do on their own. Finally, the suit accuses Amazon of using its Prime service — which bundles many disparate services across Amazon’s vast empire together, from shipping to streaming — to cement its dominance and lock consumers in. Prime forces users to sign up for several services, from streaming to shipping, in one subscription (the lawsuit notes that Prime Video can be purchased on its own but says Amazon makes that difficult to do). This, the suit says, is a deliberate attempt by Amazon to stop consumers from using competitors, since they’re already paying for something that gives them so many unrelated services, and few companies have the means to offer everything that Amazon does. Amazon maintains that it’s only offering Prime users more and better services, which they want and which isn’t an antitrust violation: “Our customers love Prime because it’s such a great experience — which makes it hard to understand why the FTC attempts to paint the value of Prime as somehow anti-competitive. Antitrust laws encourage companies to compete vigorously by offering the best deals they can for consumers. We’ve done that with Prime.” Can the FTC win? Antitrust cases are hard to win the in United States, where the law and the judiciary’s interpretation of it is friendly to businesses and makes “consumer welfare” — usually shown through how much consumers have to pay for things — the basis for whether a company is illegally monopolizing a market or not. Amazon’s detractors have long said that the harmful effects of Amazon’s monopolistic business practices extend well beyond how much things cost. “Amazon is, in my view, the biggest threat to the health of the economy and to our democracy of any of the major corporations,” Stacy Mitchell, co-director of the Institute for Local Self-Reliance, an advocate for independent businesses, who has long criticized many of the Amazon practices that made it into the FTC’s suit. Mitchell called it a “watershed moment in the fight for a fair economy,” which she says Amazon now has an inordinate amount of control over. The lawsuit calls for penalties “including but not limited to structural relief,” which would mean breaking the company up. When asked if the FTC would pursue that course of action, Khan demurred, saying that the agency is focused on establishing liability first. But she and John Newman, the deputy director of the FTC Bureau of Competition, repeatedly said that Amazon’s allegedly illegal business practices work together and reinforce each other to further increase harm, which makes it likely that they will say, if they win the lawsuit, that breaking Amazon up is the only way to prevent its business practices. Adam Kovacevich, who heads up the Chamber of Progress, a tech industry group that is largely funded by Big Tech companies, including Amazon, believes the FTC will struggle to make the case to the courts and consumers that Amazon is doing anything wrong when its many customers are largely very happy with its services. “I think it’s got a lot of legal problems. I also think it’s a huge political misjudgment,” he said. “When the Biden administration is putting a strong emphasis on pocketbook economics, it seems like a strange time to target something that helps millions of Americans purchase things more easily.” He also pointed out that the relatively small number of state attorneys general joining in the suit — only two of which, from New Hampshire and Oklahoma, are Republican — indicates that most states either don’t agree with the FTC’s take on Amazon, or don’t want to join a case headed up by Khan, who has become a lightning rod for Republican criticism. “A lot of elected policymakers are going to be wary about taking on a service as popular as Amazon Prime,” he said. The FTC’s investigation into Amazon’s business practices does predate Khan’s tenure. It began looking into the company in 2019, during the Trump administration, but it’s still safe to say that Big Tech companies and antitrust hawks alike have been waiting for this lawsuit since Khan’s surprise appointment to chair the agency in June 2021. Khan is best known in antitrust circles for her law journal article “Amazon’s Antitrust Paradox,” a 96-page analysis of how the company amassed and used its power to harm competition and consumers in the multiple markets it dominates. “There are very few people who understand Amazon as well as she does,” Mitchell said. This lawsuit, which goes after some of the very practices Khan criticized, seemed like it was only a matter of time. Google and Meta are in the middle of their own antitrust fights aimed at their core business models, but Google’s is in the hands of the Department of Justice, while Meta’s was initially filed before Khan’s time. The Amazon case, then, may well be what defines Khan’s FTC legacy. It remains to be seen if that legacy will be one of success or failure, however. Khan’s efforts to curb Big Tech’s dominance and alleged anticompetitive behavior haven’t borne much fruit so far. The FTC did not challenge Amazon’s acquisitions of MGM or One Medical. Its attempt to block Meta’s purchase of VR developer Within failed. The agency sued to block Microsoft’s massive acquisition of Activision, only for a judge to refuse to grant an injunction to stop the merger before a court could hear the FTC’s case, which the agency subsequently withdrew. But Khan’s FTC has been victorious in other, less headline-grabbing ways. The number of mergers and acquisitions decreased in 2022 after they hit a record high in 2021. While there are several factors that contributed to this decline, including a worsening economy, companies may also be less willing to test an increasingly aggressive FTC’s resolve. Even if they win the lawsuit, it will be time-consuming and expensive to fight. The FTC and the Department of Justice, which splits antitrust enforcement duties with the agency, have also challenged more mergers in the first two years of the Biden administration than in the first two years of the previous two presidencies. Of the 22 mergers the agencies challenged, according to Reuters, they’ve stopped 15, largely because the companies involved decided not to go through with it. Nvidia decided not to acquire Arm, for example. This also isn’t the first fight Khan has picked with Amazon at the FTC, two of which it’s already won. The consumer protection side of the agency got more than $30 million in settlements with Amazon over privacy issues with Ring doorbells and its smart assistant, Alexa. It also sued the company over how difficult it is to cancel Prime memberships in June, and added three Amazon executives to the suit last week. And we’re still waiting to see if the FTC challenges Amazon’s acquisition of Roomba vacuum maker iRobot, which was announced over a year ago but has yet to go through. Assuming the suit isn’t dismissed or dropped before it reaches a trial, it will likely take several years to play out in court, which means it’ll be years before we know what the impact of it will be. At that point, we’ll likely have decisions in the Google and Meta antitrust trials as well, and maybe an Apple antitrust lawsuit still to be fought. Big Tech may look a lot smaller when they’re all said and done. But it may be even bigger. Update, October 3, 5:30 pm ET: This story was originally published on September 26 and has been updated multiple times, most recently to include reports about Project Nessie.

Preview: Then-House Minority Leader Kevin McCarthy (R-CA) attends a House Republican Conference news conference on January 20, 2022 in Washington, DC. | Kent Nishimura / Los Angeles Times via Getty Images The House voted to remove McCarthy as speaker. California Rep. Kevin McCarthy has been removed as speaker of the House. Tuesday, a total of eight Republicans joined all present Democrats in voting for a motion to vacate the speaker’s chair. Rep. Patrick McHenry (R-NC) was appointed interim speaker as Republicans work to figure out who will lead their caucus, and the House, from here. The historic removal was the result of a charge led by Rep. Matt Gaetz (R-FL) to strip McCarthy of the speakership after he cut a deal with Democrats to fund the government for another 45 days — just before it would have otherwise shut down. Gaetz brought a motion to vacate on the House floor Monday night, a procedural move that has never before been successfully used to oust a speaker. This time, however, was different. Although McCarthy had most of his caucus behind him, he needed a majority of the House to vote against his removal to stay in power. At the moment, the GOP has a four-vote majority, making the eight Republicans who voted against him more than enough to depose the now-former speaker. McCarthy needed Democratic support to retain the speakership, and Democrats — even those with good working relationships with the GOP — decided they wouldn’t come to his rescue. House Minority Leader Hakeem Jeffries gave several reasons for backing McCarthy’s ouster in a letter to his colleagues, including issues with how the majority party set up the chamber’s rules, McCarthy’s legislative practices, and the decision to launch an impeachment inquiry of President Joe Biden. Congressional Progressive Caucus Chair Rep. Pramila Jayapal (D-WA) put it more simply when speaking to reporters Tuesday: “We’re not voting in any way that would help Speaker McCarthy … Nobody trusts Kevin McCarthy, and why should they?” Ahead of the vote, some Democrats suggested they’d be willing to support McCarthy in exchange for concessions. But the California lawmaker quickly ruled out that possibility. Such concessions could have included passing funding for Ukraine — which had become a sticking point in the spending fight amid waning public support for continuing to aid the country’s war efforts against Russia — or ending the Biden impeachment inquiry. Offering even small concessions would have further weakened McCarthy’s standing among the GOP, however, potentially adding to the list of Republican lawmakers planning to vote for his ouster. But his reluctance to deal with Democrats ultimately led to his demise. “Unless a Republican is willing to work on a consistent basis with Democrats, then the far-right wing, who are more interested in burning the place down than getting something done, will retain control,” said Whit Ayres, a Republican pollster. “It’s a more viable path than bending the knee to people who have no interest whatsoever in governing.” Now that McCarthy is ousted, the House will need to remain in session until any potential successor is decided. There are three main contenders to replace him: Reps. Steve Scalise (R-LA), Tom Emmer (R-MN), and Rep. Elise Stefanik (R-NY), though all three have voiced their support for McCarthy. It’s not clear any of them would accept a speakership nomination, and it’s also unclear who else the party might rally around. That raises the question of whether there’s actually a viable alternative to McCarthy at all. Who could be the next speaker? Ousting McCarthy as speaker likely won’t bring an end to Republican infighting, or a quick resolution to ongoing budget negotiations, Ayres said. “It’s virtually an impossible position as long as the far-right crazies continue to make life miserable for whoever is in that chair,” he said. “I can’t imagine wanting that job under the current circumstances.” Scalise, the Republican majority leader, was the heir apparent to the speakership, but a cancer diagnosis could derail those plans. He did announce in September that he has pursued an aggressive treatment for his multiple myeloma, which has significantly improved his long-term prognosis. Gaetz, for his part, has said that he would support Scalise. Scalise was among multiple people who were injured when a gunman fired at lawmakers on a baseball field in 2017. Otherwise, that leaves Emmer, the majority whip, and Stefanik, the conference chair. Emmer has publicly fumbled his whip duties on multiple occasions, allowing McCarthy to bring bills to the floor that didn’t have enough votes to pass. His critics have contrasted his performance with that of his Democratic predecessor Rep. Jim Clyburn (D-SC) who, along with then Democratic leaders Reps. Nancy Pelosi (D-CA) and Steny Hoyer (D-MD), was known for being excellent at counting and keeping members in line on votes. Colleagues praised Emmer in a recent Washington Post piece about the possibility of him being nominated to be speaker, but it’s not clear he could get the 218 votes necessary to replace a fallen McCarthy. Stefanik rose to prominence as a MAGA firebrand during the Trump presidency. Unlike McCarthy, Scalise, and Emmer — who have declined to issue endorsements in the Republican presidential primary so far — Stefanik has endorsed the former president for 2024. That may win her support among the party’s right flank, but would likely prove disqualifying among Democrats, meaning she would need nearly every Republican to support her to win the speakership. She’s seen as a good fundraiser, and has been focused on expanding — and diversifying — the GOP caucus over the past few years, including by targeting traditionally blue areas. It could be a long and tedious task to identify a new speaker, especially given it’s not clear who might be able to garner the support of both GOP moderates and its far-right members. And should there be a new speaker, they will immediately be plagued by the same Republican disarray, with just weeks left to hash out a deal with Democrats to fund the government and avoid a shutdown. Ayres predicts that, given the way that the spending fight has gone so far, debates over funding the government will likely “go up to the very last minute again before somebody pulls a rabbit out of a hat.” This is a developing story and will be updated as new information becomes available.

Preview: An Amazon driver delivers some Prime packages. Amazon’s shipping service is one of several things the FTC says Amazon uses to squeeze sellers and raise prices for customers. | Tom Williams/CQ-Roll Call, Inc. via Getty Images Why the FTC is going after your Prime subscription (and a few other things). The Big Tech antitrust reform movement has come for Amazon. On September 26, the Federal Trade Commission and 17 states sued the Everything Store for “illegally maintaining monopoly power.” This comes after two different antitrust lawsuits against Google from the Department of Justice — one of which is currently on trial — and another one against Meta from the FTC. Like the others, this lawsuit gets at the heart of some of the defendant’s business practices and how they work in concert to reinforce its dominance. In this case, Amazon is accused of using its monopoly on online shopping to make it impossible for other platforms to compete; force the many companies that sell products through Amazon to pay various fees and follow rules designed to enrich Amazon and disadvantage everyone else; and inflate prices on Amazon and beyond. Something called “Project Nessie” is thrown in there, too. It will be years before the case goes to trial and even longer before we get a final resolution, assuming it isn’t dropped or settled first, so we’re only at the beginning of a long process. If the FTC wins, Amazon may be forced to do business differently or even be broken up. That might mean some changes to how you shop, too. If you’re wondering what exactly Amazon is accused of doing wrong and how all of this could affect you, we have some answers. 1) Why is the FTC suing Amazon? The FTC is accusing Amazon of abusing its monopoly, harming competition, businesses that sell products through Amazon’s platform, and consumers. (The FTC is one of two agencies that enforces antitrust laws in the US. The other is the Department of Justice, which has its own Big Tech antitrust cases to fight.) The FTC’s main argument targets Amazon Marketplace, where outside businesses, or third-party sellers, sell their products to Amazon customers. This platform has vastly increased the number of products Amazon can offer to consumers and accounts for the majority of Amazon’s sales. And Amazon, the FTC says, has implemented various rules and fees that sellers have no choice but to follow and pay. That has enriched Amazon at the expense of the sellers and consumers, who are paying inflated prices not just on Amazon but everywhere else, too. —Sara Morrison 2) What? How could I be paying higher prices on Amazon, a company that famously offers the lowest prices? The FTC’s case is that the low prices on Amazon are a mirage, and the company is using several interconnected business lines to create it. There are two parts to this. The first is that Amazon knows it has tremendous leverage over third-party businesses, whose survival depends on being allowed on the platform and having visibility to their customers. Over time, it has implemented rules and fees that sellers feel compelled to follow and pay. Those include search ads, commissions on sales, and using Amazon’s warehouses and shipping services. Amazon has put more and more ads on search results pages, which means sellers feel compelled to buy ads if they want to get in front of customers. It has also made Prime an integral part of the shopping and selling experience. Lots of customers have Prime, so they look for products sold through Prime to save on shipping and get their subscription money’s worth. Amazon gives Prime products much more prominent placement on product pages, so sellers have to qualify for Prime if they want people to see and buy their products. But Amazon also makes sellers use its warehouse and shipping service, Fulfillment by Amazon, to qualify for Prime. This has resulted in sellers paying as much as 50 cents on every dollar in sales to Amazon, the suit says. To maintain their profit margin or make any profit at all, sellers have to pass those costs onto consumers. But here’s the second part of all this: Amazon’s “fair pricing” policies say that sellers can’t really offer their products for less anywhere else. Sellers are afraid to run afoul of Amazon, which could mean their listings are suppressed or they’re kicked off the platform entirely. So even if a seller incurred fewer expenses and could price their products for less and maintain the same profit margin on another platform, they won’t. The lawsuit also alleges Amazon makes it difficult for first-party sellers, or retailers that sell products to Amazon that Amazon then sells to consumers, to offer lower prices elsewhere. But it’s less clear how Amazon is allegedly doing this, as those sections are heavily redacted. Kena Betancur/VIEWpress/Corbis via Getty Images The FTC says that Amazon pressures sellers to use its shipping service, leading to higher prices and hurting competition. Amazon says sellers can choose whether to use its shipping service and that its policies are in the customers’ best interests. All these factors combined, the lawsuit says, mean that customers are paying more everywhere, sellers are being squeezed, other stores can’t compete with Amazon on prices, and Amazon doesn’t have to lower the various fees it charges sellers. So while Amazon may have the lowest prices out there, those aren’t necessarily the lowest prices possible. —SM 3) What does Amazon say about all this? David Zapolsky, Amazon’s general counsel and senior vice president of global public policy, released a statement in response to the FTC lawsuit, calling the suit “misguided” and arguing that, if successful, the lawsuit would increase prices, lead to slower deliveries, and hurt the small businesses that use Amazon Marketplace. The statement responds to a couple of the FTC complaint’s arguments directly. One repeated theme throughout Amazon’s response is this: While Amazon might encourage sellers to, say, sign up for their Fulfillment by Amazon service or create listings that meet certain conditions in order to be prominently featured, they don’t actually require sellers to do any of those things in order to list there. And, they argue, giving merchants multiple ways to sell on Amazon increases competition and is good for businesses. Amazon also argues that the FTC’s characterization of Amazon’s market share is too large because it doesn’t include physical retail stores as competition. —A.W. Ohlheiser 4) Who is Lina Khan and why does she matter? Lina Khan is the current FTC chair, a position she’s held since 2021. As Vox has previously explained, Khan was best known at the time of her appointment for her law school paper titled “Amazon’s Antitrust Paradox,” and was a prominent advocate for antitrust reform who was known, specifically, for criticizing Amazon’s business practices. If you’re wondering how Amazon feels about Khan’s tenure as FTC chair, well ... after Khan’s appointment, Amazon petitioned the FTC with a complaint, arguing that Khan should recuse herself from participating in any actions that regulate Amazon as a company due to her past criticism. —AO Ting Shen/Bloomberg via Getty Images FTC chair Lina Khan at a recent media appearance. 5) What is “Project Nessie?” I love cryptozoology, so how can something that sounds so cool be bad? Details about Project Nessie, which is mentioned several times in the complaint, were mostly redacted, other than the fact that it was some kind of algorithm. According to subsequent reporting from the Wall Street Journal, lurking just below the surface of those redactions were allegations that Amazon was using this algorithm to test how much it could raise prices on items and have competitors follow suit, thereby maximizing Amazon’s profit and inflating prices for consumers everywhere. A recent book about Amazon written by former Vox reporter Jason Del Rey quoted a company spokesperson who described Project Nessie as an algorithm designed to avoid price-matching competitors when they went too low, thereby avoiding a price-matching “death spiral.” When the company found it wasn’t increasing its own profits, the project ended. According to the Wall Street Journal report, Amazon stopped using the algorithm in 2019. While it remains partially shrouded in mystery, we may get more details in the weeks to come as Amazon will have to justify these redactions to a judge, who will ultimately decide what should be kept from the public. —SM 6) What does “Fulfillment by Amazon” mean? And what the heck is a “buy box?” As the lawsuit indicates, there are a couple of different ways products are sold on Amazon. There are things sold and shipped by Amazon — whether they are products produced under an Amazon brand or purchased wholesale by Amazon from another company — and there are products sold by third parties through Amazon Marketplace. Third-party sellers are exactly what you might guess: people or businesses that are not directly affiliated with Amazon using the retail site’s enormous platform to sell their products. Generally, third-party sellers control their own listings. Some third-party merchants on Amazon ship their products directly to customers. Others tap into Amazon’s infrastructure a little more deeply. Enter the Fulfillment by Amazon service, where sellers can, for a fee, send their inventory directly to an Amazon warehouse and let Amazon process and ship the order. These products are generally eligible for Prime shipping. (It’s exceedingly difficult to get Prime shipping without using Fulfillment by Amazon.) Being a third-party seller on Amazon doesn’t necessarily mean that your products will be visible to a wide audience of Amazon shoppers. Amazon encourages sellers to list their products in specific ways in order to maximize visibility. For instance: Third-party sellers who list the same item for purchase in Amazon Marketplace are competing with each other to show up in the “buy box” (also called the “featured offer”). The buy box is the box on an Amazon listing that contains the “add to cart” and “buy now” buttons, a.k.a. where you are generally going to click as a consumer if you want to buy the product. In Amazon’s guide to getting a product featured in the buy box, it encourages sellers to price “competitively” or “at or below the lowest priced alternatives,” and to offer “fast and free shipping,” either through their own merchant shipping process or by signing up for the Fulfilled by Amazon service. A product is also more likely to show up in the buy box if it’s eligible for Prime shipping. —AO 7) Why should I care what Amazon does to third-party sellers? It’s important to remember that Marketplace sales account for the majority of sales on Amazon and that these third-party sellers are paying fees to Amazon in order to sell there. Signing up for Fulfillment by Amazon comes with additional costs to the merchant. When Amazon raises those fees, consumers will generally have to pay more for that item going forward. Amazon’s policies can also raise the prices of items on other sites. Because the company’s fair pricing policy gives them leeway to punish merchants who list a product on Amazon at a higher price than they might elsewhere — say, on a platform that does not charge the same fees Amazon does — sellers are incentivized to raise their prices everywhere in order to account for Amazon’s fees. —AO Peter Macdiarmid/Getty Images One of the many warehouses Amazon has all over the world. 8) What will happen to Amazon if it loses the FTC lawsuit? How will it affect me? In interviews with the press, Khan has been careful not to say much about what remedies the FTC will pursue if it wins the case. But the agency is asking the court to stop Amazon from engaging in illegal practices, issue monetary penalties, and provide any relief necessary to prevent Amazon from violating the law again in the future — up to structural relief, which means breaking the company up. That doesn’t mean that an FTC win will break up Amazon, and we don’t know what that breakup would look like even if it did. A judge would make that decision, and we’re a long way away from even the possibility of it. The fact that the FTC played up the interconnected and interlocking nature of Amazon’s alleged violations in its complaint, though, indicates that the agency would say there’s no way to truly solve the problem if the company remains in one piece. This also means it’s impossible to say, right now, how things would change for you, the customer. If Amazon isn’t broken up, it may well have to stop or significantly change its Prime service, which is one of the alleged weapons Amazon wields over sellers. The FTC will say that an agency victory will mean lower prices for you and more competition that will force Amazon to have to offer a better product or give you more or better shopping options elsewhere. The very fact that Amazon is now fighting a lawsuit could have a chilling effect on some of the ways it does (or wants to do) business, as was the case for Microsoft in the late ’90s and early ’00s. That said, Amazon isn’t going to do anything drastic unless it absolutely has to. —SM 9) But will Amazon lose? I mean, come on. Really? We here at Vox don’t have a crystal ball, but history shows that antitrust cases are hard to win. Courts are business-friendly and have only become more so since the last Big Tech antitrust case against Microsoft. Khan’s FTC has had some high-profile losses with Big Tech so far. But those were about acquisitions and not, as this case is about, existing business practices. This case does have something other cases against Meta and Google don’t: physical goods that, the FTC says, consumers are paying more for than they should. That’s something that courts, which have come to embrace the “consumer welfare standard” as a deciding factor in whether or not a company’s monopoly is harmful, will pay attention to. That still doesn’t mean the FTC will be able to convince them that Amazon is doing anything wrong. —SM

Preview: Even in orbit, no dumping rules apply. | PM Images/Getty Images The FCC is cracking down on space litterbugs, starting with Dish Network. We are surrounded by trash, and the Federal Communications Commission is trying to do something about it. Since we’re talking about the FCC, which regulates communications and airwaves, we’re not talking about the more well-known trash in the oceans and on the ground. This is the garbage way, way up in the sky: space debris, an ever-increasing problem thanks to all of the things we shoot up into the air, much of which won’t come back down anytime soon. Included in this category — and under the FCC’s purview — are communications satellites. The FCC doled out a first-of-its-kind fine to Dish Network for failing to uphold a debris mitigation plan for its EchoStar-7 satellite. Dish will now pay $150,000 and implement various measures to ensure that its other satellites don’t meet the same fate. The penalty may be a sign of things to come, both the increased scrutiny from the FCC and the need for it, due to the rapidly growing amount of space debris up there. FCC Enforcement Bureau chief Loyaan A. Egal heralded the move as a “breakthrough,” saying in a statement that it made “very clear the FCC has strong enforcement authority and capability to enforce its vitally important space debris rules.” This comes a few months after the agency established a dedicated Space Bureau charged with overseeing space-based communications. Previously, this was done by an International Bureau, which has now been split into the Space Bureau and the Office of International Affairs. It also comes as satellites have become a more viable and common means of accessing the internet, thanks in part to Elon Musk’s Starlink, which brought high-speed, lower-latency internet to the most remote locations in the world and the front lines of Russia’s war in Ukraine. With its network of thousands of small satellites in low orbit, it’s also brought concerns about light pollution, crowding, and trash. As orbits get more crowded with junk that can’t be controlled or moved out of the way, it becomes more likely that this debris will collide with stuff that isn’t trash. As Vox’s Rebecca Heilweil noted in 2021 after Russia shot down an old satellite with a missile, spreading debris everywhere: These shards are spinning at incredibly fast speeds and risk hitting active satellites that power critical technologies, like GPS navigation and weather forecasting. Space debris like this is actually so dangerous that national security officials are worried it could be used as a weapon in a future space war. ... These risks have only heightened concerns that we’re far from solving the space junk problem, especially as private companies and foreign governments launch thousands of new satellites into orbit — inevitably creating even more space junk. It’s estimated that there were at least 100 million pieces of space debris larger than a millimeter surrounding the Earth. There are far fewer ways to clean it up. While the area around the Earth is vast, making collisions unlikely for now, it’s only getting more crowded up there, especially in the lower orbits that Starlink satellites occupy, which also have less free space. But notably, the FCC’s first space debris enforcement action wasn’t taken against SpaceX, the company that belongs to notoriously rule-flouting Musk, but an older company with older satellite technology. The Dish satellite in question was launched in 2002, and the debris mitigation plan dates back to 2012. The satellite reached the end of its life last year, and the plan was to use its last remaining fuel to move 300 kilometers, or about 190 miles, above its current orbit. But Dish miscalculated how much fuel was left and was only able to get the satellite 122 kilometers, or a piddly 75 miles, above that orbit. Dish’s satellite differs from Starlink’s much newer satellites in several ways. First of all, it’s a lot bigger: The EchoStar-7 weighed just over 9,000 pounds at launch, while Starlink satellites weigh between 575 and 1,750 pounds. The EchoStar’s 20-year life span is also longer. Starlink satellites average about five to seven years, after which they’re moved into the atmosphere to burn up into very small particles, which hopefully isn’t dangerous to us but about which scientific research is lacking. Different types of satellites also have very different orbits. Starlink satellites create an interconnected web over the Earth in a relatively low orbit about 350 miles above us. That means the time it takes to send signals between them and the planet is shorter, allowing for low latency times. Dish’s satellites are much higher up — 22,000 miles above Earth — and move with the rotation of the planet to stay in the same spot at all times. All this means that Dish only needs a few satellites to cover one area, but the latency time is too long to support streaming, gaming, and video conferencing (this particular satellite was for TV broadcasting). That also puts them too high up to simply steer themselves down into the atmosphere to burn up like Starlink’s satellites. Instead, they move up into a “graveyard orbit,” out of the path of functional satellites, where they’re left to float around in space for hundreds of years. With the FCC ready, willing, and able to regulate the inner and outer reaches of space, Starlink may well be heading for a collision of its own. Not with space junk, but with a government agency and regulations. Those are two things Elon Musk doesn’t care for (unless he’s getting a subsidy that keeps his business afloat), so it will be interesting to see just how closely Starlink followed the agreements it made with the FCC to be allowed to throw thousands of satellites into the sky. Dish told Vox in a statement that the FCC did not find that its satellite “poses any orbital debris safety concerns,” adding that it “has a long track record of safely flying a large satellite fleet and takes seriously its responsibilities as an FCC licensee.” As for that $150,000 penalty, while it may be the first of its kind, it’s also peanuts to Dish, which had a net income of nearly $1 billion in 2022.

Preview: Taylor Swift and the NFL, the ultimate capitalist crossover event. | Elsa/Getty Images The NFL (Taylor’s version) is extremely good for business. Whether or not Taylor Swift and Travis Kelce are a match made in heaven, Taylor Swift and the NFL certainly are, commercially speaking. As Swift makes appearances at Kansas City Chiefs games and rumors swirl that the pop star is dating the tight end, a marketing gold mine has sprung up. The buzz is inescapable, whether you’re a Taylor Swift fan, an NFL fan, both, or neither. Kelce’s jersey sales have spiked, as has the number of his Instagram followers. Game viewership has jumped as Swift fans tune in to catch a glimpse of her, and NFL games are already the most-watched programs on TV anyway. The social media chatter is endless. The media coverage is breathless. Seemingly everyone has weighed in, including, inexplicably, Donald Trump, though he is saying what a lot of people are thinking — wish them the best, but also, is this even real? Conspiracy theories about whether this is a publicity stunt aside, it’s a win-win-win for everyone involved. The NFL makes inroads with younger and female viewers, putting the influencer campaign it’s been engaged in for years on overdrive. Kelce expands his celebrity further outside of football, which is something plenty of NFL players could use — football doesn’t guarantee you’re rich forever, and careers are often short. And Swift further expands her empire, sells some more concert and movie tickets, and gathers fodder for her next album. Taylor Swift is great at translating attention and loyalty into money. The NFL is great at turning attention and loyalty into money. Their combined forces equal ... well, you get the point. It’s a cultural phenomenon. It’s a capitalistic spectacle. It’s fun. It’s also fraught. “It’s like a business bonanza that just appeared for two brands that have some of the biggest brands in the world,” said Andrew Brandt, a former Green Bay Packers executive and the director of the Moorad Center for the Study of Sports Law at Villanova University. It’s not clear either needed more attention here, but they got it. It’s a cultural phenomenon. It’s a capitalistic spectacle. It’s fun. It’s also fraught. When Taylor Swift lends her brand to the NFL and vice versa, what exactly does that mean, and what is it in service of? And for either of these gigantic entities, it is even necessary? Did you see who won the Taylor Swift Show on Sunday? If you didn’t catch the Chiefs game against the New York Jets on Sunday, I’ll give you a rundown of what you missed, per Front Office Sports. Kelce appeared in three commercials; the Chiefs quarterback, Patrick Mahomes, was in two; and its coach, Andy Reid, got one. As for cutaways to Swift, there were 17, as the cameras repeatedly zoomed in on her watching from a box alongside a cadre of fellow celebrities, including Blake Lively, Ryan Reynolds, and Hugh Jackman. Injured Jets quarterback Aaron Rodgers, making his first appearance at a game since said injury was sustained, was also shown quite a bit, though not as much as Swift. (Also, the Chiefs won, though the game was a lot closer than anybody expected.) Two separate spots for Swift’s upcoming film of her Eras tour, out October 13, were shown, so on top of seeing Taylor and company in the box, audiences got to see Taylor onstage and be reminded to get tickets. Television personality Carson Daly made a taped appearance at the top of the night, explaining the game to the Swifties tuning in as the song “Welcome to New York” played. It conveniently doubled as an ad for The Voice, which premiered in September on NBC. First it was Swift, but then the network, advertisers, and the NFL itself swooped in to try to cash in, too. The circles of capitalist behemoths benefiting just rippled out. The whole thing felt like a three-hour over-the-top ad for a variety of interested parties on primetime TV. Jake from State Farm appeared in the insurance company’s commercials, as is par for the course. What is less par for the course is that hours before, he had appeared in real life alongside Donna Kelce, Travis Kelce’s mom, at a Philadelphia Eagles game to watch Travis’s brother, Jason Kelce, play. Jason Kelce is currently starring in a documentary about what he thought would be his last year in the NFL airing on Amazon Prime, titled Kelce. Amazon has the exclusive rights to Thursday Night Football. Also on Sunday, the NFL changed its Twitter background to Swift reaction shots and its Instagram profile to note the Chiefs were 2-0 as Swifties. (It has since changed both back to more normal NFL content.) It has put out various Taylor-themed videos and other content, hoping the Grammy winner’s presence at some games pays off — which it has. Ian Trombetta, senior vice president of social, influencer, and content marketing at the NFL, told Vox that the NFL is seeing record views of its videos on platforms like TikTok. “In some cases, we’re seeing close to 200 million views on Travis and Taylor-related content just over the last week alone,” he said. NBC’s audience for the game peaked at 29 million viewers, including an increase of about 2 million female viewers. The Chiefs’ game against the Chicago Bears the weekend prior saw a giant bump, too. “The interest is tremendous,” Trombetta said. What everyone is getting out of this is more fame and money, whether or not they need it It’s no secret that the NFL is a commercial endeavor. The league made $12 billion in 2022, not to mention the money it makes for networks and retailers and even advertisers who shell out big bucks for a Super Bowl ad. Swift is a commercial endeavor as well, or at least at the helm of one. At this point, it’s like she’s an economy all on her own. Given that, it makes sense that they would find their way together in what feels like the ultimate crossover event. Of course, there are Swift fans who like football and vice versa, but these are two larger-than-life entities getting access to demographics they don’t already dominate, gaining market share where many might have thought none existed. Or, at least, the potential inroads weren’t expected to look like this. “What that really opens up for us is the opportunity for us to engage more casual fans, especially young women” The NFL has been pushing for the last several years to engage influencers and celebrities to reach a younger generation of fans, said Kavitha Davidson, a correspondent for Real Sports With Bryant Gumbel on HBO. Swift, the ultimate influencer, is delivering the kinds of results right now NFL marketers could only dream of. “If this is something that fell into the NFL’s lap, then this was absolutely the kind of marketing blitz we were going to see,” she said. “What that really opens up for us is the opportunity for us to engage more casual fans, especially young women, and educate them a little bit about football,” Trombetta said. He acknowledged that “naturally” some of the level of conversation and interest around Swift and the NFL will start to die down, but they’re trying to put out educational content for new fans to hopefully get them to stick around. “It’s important for us to make sure the game is approachable.” Swift goes back on tour in November, so the clock is ticking. The excitement may very well fade before then anyway — that’s assuming she keeps showing up at games and whatever romance is going on with Kelce continues. “My question is, one more game of this, two more games of this, three more games of this? But ultimately, it’s going to be up to the networks, too,” Brandt said. “Are they going to show the box less?” Some NFL fans would like them to; normies and Swift fans not so much. It’s not like the NFL was struggling with viewership in the first place, or Swift with selling movie tickets. She’s already broken presale records at AMC and the NFL accounted for 82 of the top 100 television broadcasts Americans watched last year. But in capitalist America, enough is never enough. “The NFL’s business is just fine, the NFL’s bottom line is just fine, but they, just like every other corporation in America, are constantly seeking growth year over year. It’s seen as a failure even if there was a small dip,” Davidson said. The NFL saw a decline in ratings after Peyton Manning’s retirement in 2016 — in part because people were tuning in so much to watch his last season in 2015. Might a future Taylorless game cause a bit of a dip mirage, too? What we’re not looking at when we’re looking at Taylor Swift The more you think about this situation, the knottier it can quickly become in ways that are quite uncomfortable. The NFL could use some reputation management, and who better to help deliver that than a beloved bombshell blonde? To tune in to an NFL game because Taylor Swift is there or you like the sport or whatever is already a bit of a moral compromise. Football is incredibly dangerous, which is why youth participation in the sport is declining. It does enormous amounts of physical damage to players, including severe, lifelong brain injuries, which the league has continually tried to sweep under the rug. In January, fans were shocked when Buffalo Bills defensive back Damar Hamlin collapsed on the field mid-game after a collision that caused his heart to stop. He played his first regular-season game back with the team on Sunday, the same day as the Chiefs-Jets. Swift going to a Chiefs game is a headline the NFL would much prefer to many of the others it is often the subject of, including when it comes to women. The league has a longstanding problem with domestic violence among some of its players. Quarterback Deshaun Watson has been at the center of more than 20 sexual assault allegations, which he has denied and in most cases settled. He was penalized by the league; he’s also currently the starting quarterback for the Cleveland Browns. The NFL has made sincere efforts to do better with the treatment and promotion of women, not in the pink everyone sports on the field for Breast Cancer Awareness Month in October but in actually promoting women and including them in programs. It says it’s increasing penalties for sexual misconduct in the wake of the Watson case. The excitement around Swift’s fandom at the moment papers over some aspects of the league that are quite ugly and that turn off younger and female viewers — aspects that maybe a couple of weeks ago some of her followers would have said they were disturbed by. There’s also the question of the way the NFL approaches its players and how many of them are treated as disposable. Unlike many other sports in the United States, NFL players are sort of secondary to the league itself, and they’re often not as famous as players in other professional sports. Their season is shorter, and they wear helmets, so you can’t even see their faces. Players’ careers are often not long, and if they’re injured or are cut for another reason, their contracts generally aren’t guaranteed. You can’t really blame Swift for putting her red lipstick on the NFL pig Many players need to strike while the iron is hot to try to ensure some financial security. It’s something Travis Kelce has been good at, whether in hosting a podcast or appearing on SNL or showing up in ads, including for people to get vaccinated. The same goes for his brother. Not everyone can date one of the world’s most famous pop stars or get a documentary on Amazon, but they do want to find ways to stand out off the field. “A lot of athletes are realizing that they need to use these moments where they are on primetime national television to boost their platform as influencers to set themselves up to do something once they retire, whether they retire out of choice or not,” Davidson said. “Football especially is a really tenuous game, and nobody’s careers are guaranteed here.” You can’t really blame Swift for putting her red lipstick on the NFL pig. She seems to like the guy, she wants to go see him play, and famous people go sit courtside at Knicks and Lakers games all the time. Plenty of women are NFL fans. (Personally, I like Taylor Swift and football.) The whole “football is for boys and Taylor is for girls” thing is generally boring and stereotypical. Sports are fun! There’s a reason so many people watch them. Still, there’s something about the spectacle of all this that’s jarring. Taylor Swift’s latest (potential) romance doesn’t need to be turned into an opportunity to sell football tickets and movie seats and convince viewers to tune in to The Voice. It doesn’t merit the amount of media coverage it’s getting. (I am aware I am part of the problem here.) But the capitalist machine recognizes an opportunity when it sees one. And who are two better capitalist mechanics than the NFL and Taylor Swift?

Preview: Justices Amy Coney Barrett, left, and Ketanji Brown Jackson visit before President Joe Biden delivers his State of the Union address in 2023. | Chip Somodevilla/Getty Images Justices considering a case against the CFPB seem unlikely to trigger a second Great Depression. Imagine that the Supreme Court of the United States spent an entire morning debating whether penguins are the primary cause of colon cancer or whether John F. Kennedy was assassinated by aliens from the planet Venus. That’s more or less the quality of arguments that former Trump Solicitor General Noel Francisco presented to the Court on Tuesday, as part of a quizzical effort to convince the justices to declare an entire federal agency unconstitutional. The good news is that the Court appears unlikely to buy what Francisco is selling. All three of the liberal justices took turns beating up Francisco, with an exasperated Justice Sonia Sotomayor telling Francisco at one point that she is trying to understand Francisco’s argument and is at a “total loss.” Sotomayor appeared to be joined in her frustration by Justices Brett Kavanaugh and Amy Coney Barrett, two Trump appointees who showed little patience for Francisco’s attacks on the Consumer Financial Protection Bureau (CFPB), the agency that Francisco is urging them to strike down. Like Sotomayor, Barrett also repeatedly pressed Francisco to explain how, exactly, his proposed interpretation of the Constitution would actually work. By the end of the argument, even Justice Clarence Thomas — ordinarily the most conservative member of the Court — appeared fed up with Francisco’s inability to articulate a coherent argument. It seems very unlikely, therefore, that the Court’s decision in Consumer Financial Protection Bureau v. Community Financial Services Association will end in the CFPB being struck down — and that’s a very good thing. As the banking industry warned in a brief to the justices, striking down the CFPB would mean striking down the agency that writes the rules telling them how to comply with federal laws governing mortgages. Without these rules in place, the entire US mortgage market could seize up — taking out about 17 percent of the US economy in the process. A decision against the CFPB, in other words, could usher in the kind of economic ruin that hasn’t been seen in the United States since the Great Depression. Francisco also spent much of the Tuesday morning argument reiterating positions he took in his brief, which could invalidate a wide range of federal programs — including Social Security and Medicare. At various points, for example, Francisco seemed to argue that the CFPB is unconstitutional because a federal law gives it “perpetual” funding, meaning that it is funded until Congress passes a new law withdrawing that funding. But nearly two-thirds of all federal spending is perpetual, including major social programs like Medicare, Medicaid, and Social Security. The Community Financial case is before the justices because the United States Court of Appeals for the Fifth Circuit, an increasingly rogue court dominated by far-right Republicans, last year bought the argument that the CFPB is unconstitutional. The one good thing that can be said about that decision is that it now appears very likely to be reversed. Even the current very conservative Supreme Court appears to recognize that the Fifth Circuit’s approach would sow far too much chaos and that it would give far too much power to judges. So what is the constitutional case against the CFPB? Francisco claims that the CFPB exceeds Congress’s power under a provision of the Constitution which provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” As the Supreme Court said in Cincinnati Soap Co. v. United States (1937), this provision “means simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.” So, before the federal government spends any money, Congress must pass a law permitting it to do so. The problem with Francisco’s argument is that Congress did pass a law, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, which funds the CFPB. So, under well-established law, Francisco’s arguments are flat-out wrong. Notably, before the Fifth Circuit’s decision in this case, no court had ever held that any act of Congress violates the Constitution’s Appropriations Clause. As several justices repeatedly pointed out during their increasingly frustrating interrogation of Francisco, Trump’s former solicitor general had a difficult time pinning down why, exactly, he thinks the CFPB is unconstitutional. But he did seem to be arguing for two novel new limits on Congress’s power to spend money. At various points, for example, Francisco seemed to fault Congress for not appropriating a “fixed” sum of money to the CFPB. Instead, Congress passed a law that allows the CFPB to spend up to a certain amount of money. In 2022, the total amount of money CFPB was allowed to spend was capped at $734 million, and this cap increases each year with inflation. But, as both Solicitor General Elizabeth Prelogar and many of the justices pointed out, there are gobs of federal laws — both modern and historical — that permit a federal agency to spend up to a specified cap. The 2022 legislation providing most agencies with their annual funding, for example, contains more than 400 provisions that appropriate funding “not to exceed” a certain amount. At other points, Francisco criticized the fact that the CFPB has a “perpetual” funding stream. Again, this is a common feature of US appropriations that also stretches back 230 years. Most federal spending is perpetual, including Social Security and Medicare. In fairness, Francisco didn’t actually urge the justices to invalidate the majority of federal spending. At various points, he tried to argue that the CFPB’s funding bill is unique in some way that would allow the justices to strike down this one agency without also invalidating most of the rest of the government. But his attempts to limit the scope of his argument produced baffled responses from many of the justices, several of whom were quite open about the fact that they couldn’t even understand the lines Francisco was trying to draw — hence Sotomayor’s comment that Francisco’s arguments left her at a “total loss.” Barrett, for her part, asked several questions trying to pin down how, exactly, Francisco’s proposed rules would work. If Congress cannot enact a “perpetual” appropriation, for example, then how long may an agency be funded before that funding goes on for too long? If Congress must provide agencies with specific instructions about how much money it can spend, how specific is specific enough? And which actual words in the Appropriations Clause impose the limits on Congress that Francisco proposed? Kavanaugh, meanwhile, was largely quiet throughout the argument, but he did pipe up a few times to ask why the CFPB’s funding is constitutionally problematic, so long as Congress retains the power to repeal that funding at a future date. When Francisco complained that the president could veto such a repeal bill, Kavanaugh pointed out that Congress could threaten to defund other agencies (which receive annual appropriations) in order to pressure the president to agree to a law changing the CFPB’s funding structure. Indeed, while some members of the Court’s right flank initially appeared open to Francisco’s arguments, their patience seemed to thin as the argument went on. In his last exchange with Francisco, for example, Thomas asked the former Trump solicitor general to complete a sentence for him: “Funding of the CFPB violates the Appropriations Clause because ...” In response, Francisco criticized Congress for “delegating to the director” of the CFPB the power to decide how much money the agency will spend in a given year, subject to the congressionally imposed cap. But that’s nothing more than a restatement of his earlier argument that Congress must specify a “fixed” amount of spending in its appropriations bills. In any event, when one of the justices who is most inclined to agree with a lawyer’s policy views needs that lawyer to explain what, exactly, he is arguing — and when that question comes more than an hour into an oral argument — that’s a bad sign for that lawyer. By the time the argument was over, only Justice Samuel Alito appeared to be a certain vote for Francisco’s poorly articulated position. And Alito, who is typically the most reliable Republican partisan on the Supreme Court, was reduced to incoherence himself — complaining at the end of the oral argument that he is concerned the Court’s decision in Cincinnati Soap does not impose a sufficiently aggressive “limiting principle” on Congress. So the good news is that a truly awful legal argument, one that has no basis in constitutional text and that would have catastrophic consequences if it were embraced by the Supreme Court, appears unlikely to win more than three or four votes even on this very conservative Court. And it may not win more than one or two. It appears, at the very least, that there is some real daylight between the median justice and the arsonists on the Fifth Circuit.

Preview: Google’s office in New York City. | Spencer Platt/Getty Images Which search engine do you use, and why is it Google? A judge will soon decide. The first big trial of the modern Big Tech antitrust movement is here: On September 12, the Department of Justice’s lawsuit against Google’s search engine monopoly began. What’s at stake? Oh, nothing much — just the future of the internet. Or maybe the future of antitrust law in the US. Maybe both. This is the first antitrust trial that goes after a Big Tech company’s business practices since the DOJ took on Microsoft in the late ’90s, and it’s the first in a set of antitrust lawsuits against dominant tech platforms from federal and state antitrust enforcers that will play out in the next few months. Those include the DOJ and state attorneys general’s lawsuits against Google over its ad tech business, the FTC’s case against Meta over its acquisitions of Instagram and WhatsApp, and the FTC’s lawsuit against Amazon over its marketplace platform. Apple might even catch a lawsuit, too. The outcomes of these cases, starting with this one, will tell us if our antitrust laws, written decades before the internet existed and tried before an increasingly business-friendly justice system, can be applied to dominant digital platforms’ business practices now. “If the DOJ loses, it becomes a very serious question of what’s it going to take,” Harold Feld, senior vice president at Public Knowledge, an open internet advocacy group, said. “Other than an act of Congress, is there any way that a court is going to apply the antitrust laws to these new business models and new technologies?” That is to say, this case may change how much power those platforms have over us and how they’re allowed to wield it. And it all boils down to a simple question: Which search engine do you use, and why? The first part of this isn’t in dispute. If you’re like 90 percent of Americans, it’s Google, which has been synonymous with internet search for decades. The “why” is where the fight is. Google says it’s because it’s the best search engine out there. The DOJ and attorneys general from almost every state and territory in the country say it’s because Google pays a host of companies — everyone from Apple to Verizon — billions of dollars a year to make its search the default on the vast majority of devices and browsers. Most of us probably take search engines for granted at this point, but they’re still a hugely important part of how the internet works. The proof is Google, which in just 25 years has grown into a $1.7 trillion company that owns major swathes of what we do online. It was all built on that search engine, which remains Google’s biggest revenue generator even now. Search ads were nearly 60 percent of the company’s revenue in 2022, to the tune of $162.45 billion. And that doesn’t count all the other ways Google can and does monetize its exclusive knowledge of what most of the world wants to know all the time. Ironically enough, it was another tech company’s antitrust woes that helped Google emerge in the first place: Microsoft. Remember Internet Explorer? The DOJ sure does. A few decades ago, your internet experience almost certainly began with Microsoft’s Internet Explorer, as was the case for up to 95 percent of internet users when the browser was at its early 2000s peak. But that market share didn’t happen because Internet Explorer was better, the DOJ contended in its 1998 antitrust lawsuit against the company. It was because Microsoft leveraged its dominance over computer operating systems to force its browser onto users. Internet Explorer was bundled with Microsoft’s Windows operating system, and Microsoft ensured it was just about impossible to remove. Installing an alternate browser was technically possible but difficult, so most people didn’t bother. This killed off most of Internet Explorer’s competitors and gave Microsoft a monopoly over internet browsers that was similar to the one it enjoyed over computer operating systems. And that, the DOJ said, was an abuse of Microsoft’s monopoly power. The US District Court for the District of Columbia agreed and ordered Microsoft to be broken up into two companies. But a higher court overturned part of that ruling, and the DOJ subsequently settled with Microsoft. The company got to stay in one piece, but it paid a price. While Microsoft was tied up in court, paying billions in fines, afraid to make any major moves that could incur more government wrath and no longer allowed to gatekeep the internet through its browser, new companies like Google emerged. Now, the DOJ says, the cycle is repeating. But Google is the one that is using its dominance to freeze out competitors, and consumers are being denied the kind of innovation that put Google on the map in the first place. “If the government’s allegations are to be believed, Google is doing exactly what Microsoft did in many respects,” said Gary Reback, an antitrust lawyer who was instrumental in convincing the DOJ to bring the case against Microsoft back then and tried to get the FTC to take Google on 10 years ago. “The major arguments — I’ve seen them all before — they were made by Microsoft, and they failed.” The DOJ’s lawsuit was filed in October 2020, at the very end of Trump’s presidency and when anti-Big Tech sentiment was high and bipartisan. It came just a few weeks after the House’s long investigation into Amazon, Apple, Google, and Meta’s business practices, which led to a set of bipartisan, bicameral antitrust bills meant to address the unique ways digital platforms operate and maintain their dominance. Eleven states joined that suit; three more signed on a few months later. In December 2020, 35 states, the territories of Puerto Rico and Guam, and Washington, DC, filed their own lawsuit against Google over its search practices. Those two cases have been combined for this trial. Microsoft has a place in this lawsuit, too, by the way: This time, it’s as a witness for the government. CEO Satya Nadella testified on October 2 that Google’s dominance has made it impossible for his company’s search engine, Bing, to truly compete — even as Microsoft has invested about $100 billion into its search engine to try. He said his company has tried to negotiate with Apple for years to break up its “oligopolistic” relationship with Google, offering the iPhone maker tens of billions of dollars to switch the search default from Google to Bing. “Defaults are the only thing that matter,” Nadella said. Apple, obviously, didn’t bite. Google’s argument is that Bing just isn’t as good as Google is. Even Windows users who have Microsoft’s Edge browser with its Bing default pre-installed prefer Google to Bing (though Bing’s market share is bigger on Windows PCs than it is elsewhere), and, as Nadella admitted, the most queried word on Bing is “Google.” Apple, Google says, is choosing the search engine it thinks is best for its customers — not the one that happens to pay it the most. This isn’t to be confused with all the other antitrust lawsuits the government has filed against Google that address other parts of its business. One of those, about Google’s app store, was recently settled. Two others about Google’s ad tech business are winding their way through the courts. Here, we’re just looking at Google’s search arm, which is the foundation of the company but far from the only thing it does. There are also a few things you won’t see in this case that used to be there. A few weeks ago, Judge Mehta threw out several of the plaintiffs’ claims. The states’ argument that Google harmed competitors like Yelp and Expedia by designing its search results to prominently feature its own services over theirs was tossed. The DOJ’s claims that Google’s agreements with manufacturers to give its services default placement on Androids and Internet of Things devices were exclusionary were also dismissed. So we’re left with two claims. One is from the states’ case about Google’s search engine marketing tool, and it accuses the company of making certain features available to its search engine and not Microsoft’s Bing in order to give it an unfair advantage. But the core of this case is the second claim about Google’s default search agreements. How Google’s default search agreements hurt you — or help With so much of its revenue riding on the popularity and scale of its search product, Google is willing to spend a lot of money to ensure that it’s the default search in as many places as possible. The company shells out billions of dollars every year to browser developers, device manufacturers, and phone carriers for Google to be the default search engine almost everywhere. The exact amounts of those default search agreements have been redacted for this trial, but estimates put it at as much as $20 billion a year to Apple alone. This paid placement, the DOJ says, has helped Google maintain its dominance and made it impossible for just about anyone else to compete. Very few companies have billions of dollars to throw around. Or, as the DOJ said, it’s “creating a continuous and self-reinforcing cycle of monopolization.” And while it’s possible for users to switch to a different search engine, very few of them actually do. The DOJ is expected to say that’s because Google has locked up the best distribution channels. Using a competitor requires knowing that it’s even possible to do it in the first place as well as how to make the switch. There are also countless studies that will tell you how difficult it is to overcome consumer inertia. The vast majority of people just go with whatever’s there, which is why Google is paying to be there. Microsoft’s defense that people could install alternate browsers if they so chose didn’t work 25 years ago. The DOJ doesn’t think it should work now. All this has hurt competitors, who can’t get a foothold in the market, according to the DOJ. It has impacted advertisers, who have to pay what Google is charging for those search ads because there’s no other game in town, and consumers, who don’t have much choice in search engines. The lack of choice is also, the suit says, stifling innovation. There’s no pressure on Google to improve its product because there aren’t any companies trying to develop their own, possibly better, ones. The DOJ will likely argue that the quality of Google’s product has gone down as its dominance became more entrenched. One example could be all of those knowledge panels Google sticks on top of search results that direct users to other Google products, not to mention the presence of more and more search ads. The states’ case that this harmed third parties like Yelp was thrown out, but the DOJ could still say that it harms consumers who have to do more work to get to the search results they came to Google for in the first place. There are other search engines, but they’ve struggled to gain market share. The aforementioned Bing currently has just 6.4 percent of the US market (Yahoo!, which uses Bing, is another 2.4 percent). There’s also DuckDuckGo, which has been trying to compete with Google as a privacy-preserving alternative. But it only has a fraction of the market, and it blames Google’s default search agreements for that. “Even though DuckDuckGo provides something extremely valuable that people want and Google won’t provide — real privacy — Google makes it unduly difficult to use DuckDuckGo by default. We’re glad this issue is finally going to have its day in court,” Kamyl Bazbaz, spokesperson for DuckDuckGo, said in a statement. DuckDuckGo, obviously, is an existing product. This case is also very much about the search engines that don’t exist and never will, the ones that you, the consumer, will never get to use. The DOJ will likely argue that’s because Google intentionally made the search engine barrier to entry too high. The co-founder of now-defunct search engine Neeva recently testified that his company, which had a subscription model rather than ad-based, couldn’t get the traction it needed in the face of Google’s monopoly. For its part, Google maintains that it’s the most popular search engine because it’s the best one out there, giving its users the most meaningful and relevant results. The company says that the DOJ’s case is aimed at helping competitors — not consumers. Google says the companies that choose its search to be the default on their products do so because it’s better, not because Google is paying them. And consumers use Google because it’s better, not because it happens to be there when they turn their new phones on or fire up their new computer’s browser for the first time. “People don’t use Google because they have to — they use it because they want to,” Kent Walker, Google’s president of global affairs, said in a blog post. “Making it easier for people to get the products they want benefits consumers and is supported by American antitrust law.” But why, you might ask, is Google paying anyone at all if it’s so great? Well, the company has long maintained that this is equivalent to a brand paying a grocery store for prime shelf space, something that is perfectly legal and happens all the time. (People who disagree with this will point out that occupying the only search engine slot on the vast majority of web browsers and devices is not quite the same thing as sitting on a shelf in a grocery store.) Google thinks it’s improving customer access to what it believes is the best product. And that, Google says, is good for consumers. Google also says it’s easy to switch to a different search engine — much easier, in fact, than it was to install a new browser back in the Microsoft lawsuit days. Apps can be downloaded in seconds, and it takes just a few clicks to change your search engine settings, as long as you know it’s possible and how to do it. “While default settings matter (that’s why we bid for them), they’re easy to change. People can and do switch,” Walker said. Google also says it’s continuously improving and innovating. Any perceived lack of competition (and the company says it has plenty of competition) hasn’t caused it to rest on its laurels. “We invest billions of dollars in R&D and make thousands of quality improvements to Search every year to ensure we’re delivering the most helpful results,” Walker said. Finally, Google has maintained that the market is more than just general search engines like Bing or DuckDuckGo, because general search engines aren’t the only way people look for things on the internet. They may also go directly to Reddit or Amazon, for example. So it has more competitors than the DOJ claims as well as a smaller market share. That’s probably not going to fly with the judge, but Google will give it a try anyway. The future of the internet, as determined by a business-friendly justice system As Reback says, we saw many of these concepts litigated with the Microsoft case nearly three decades ago. So we should have case law that says some of the same or very similar practices Google is engaged in are illegal, right? Not necessarily. Google has a few things going for it here. For one, it’s been more careful about how it phrases and frames things in internal documents than Microsoft was (assuming those internal documents exist — the DOJ has accused Google of withholding or destroying some of them). For another, the courts that will ultimately decide how to apply the law are different, too. “Since Microsoft, there’s been a couple of Supreme Court decisions that are, by their attitude and their approach, tolerant of dominant firm behavior,” William Kovacic, who served as the chair of the FTC under George W. Bush, said. “Their attitude toward plaintiffs is not nearly so generous as the Court of Appeals was in the Microsoft case.” No matter what the judge decides, it will be a while before we know the final outcome. The trial is expected to last about nine weeks, and Judge Mehta’s ruling won’t come out until next year. We’re sure to have a long appeals process after that. But whatever the outcome is, it may be hugely consequential, especially when viewed in combination with the other digital platform antitrust cases we have now (or likely will have soon) and the larger antitrust reform movement. If Google loses, it faces the possibility of being broken up into smaller companies (an extreme, but not unheard of, measure that the DOJ is asking for) or forbidden from offering those search agreements. We could be looking at a much different Google, or we’ll get to see which search engine users pick when Google is not the default. If the DOJ loses, there are a few ways to look at it. One is that this is proof that Google isn’t doing anything wrong and should be allowed to continue to operate as it always has, without being unfairly targeted by the government with its anti-Big Tech agenda. But if you believe that Google and its Big Tech brethren’s dominance and power is a problem that needs to be solved, a DOJ loss would show that our antitrust laws and the courts that are charged with interpreting them aren’t equipped to deal with the realities of this digital economy and how its major players operate within it. “If the government gets the door slammed on its face ... if they try and they lose, then they can turn to Congress and say, ‘Well, our antitrust system is so cramped and limited that we can’t do the job. You’ve got to fix it,’” Kovacic said. That could be what motivates Congress to pass antitrust laws that do account for dominant digital platforms. An internet that’s essentially controlled by a handful of companies may well open back up again — assuming it isn’t already too late. Update, October 3, noon: This story was originally published on September 9 and has been updated to include testimony from Microsoft CEO Satya Nadella and Neeva’s co-founder.

Preview: The flags of Ukraine and the United States are attached to a backpack on October 1, 2023, in Kyiv, Ukraine. | Yan Dobronosov/Global Images Ukraine via Getty Images In the US and across Europe, politics are complicating support for Ukraine. Western unity around Ukraine is starting to strain as the conflict grinds on with largely static front lines, and as the politics in the United States and Europe become more volatile themselves. Last weekend, in the US, Congress avoided a government shutdown, but only after it dropped billions in Ukraine aid from its short-term spending bill. Now, lawmakers who back Kyiv are scrambling to figure out how they can get Ukraine more funding as a faction of the GOP digs in against it. From both the US and Europe, support for Kyiv is still forthcoming, of course. But it is not quite the all-in, unequivocal support that characterized the first year of the war. In 2022, the shock of the Russian invasion, and Ukraine’s initial success in repelling Russian forces from Kyiv, then later liberating its territory, sharpened the sense of purpose among Western countries, and tamped down some of the competing political interests within them. They also eased some of the tensions that have long complicated trans-Atlantic and European relations. That’s evident in Slovakia, where this weekend’s elections saw Robert Fico, a former prime minister and pro-Russian populist, become the frontrunner to lead after running a socially conservative, left-wing populist campaign that promised to end military aid for Ukraine. Meanwhile, in Poland, upcoming elections have heightened trade tensions with Ukraine over grain, and a far-right party that has questioned the ruling party’s support for Ukraine could be a kingmaker. The circumstances and dynamics in these countries are wildly different, but together they’re undermining the West’s unified front. For Ukraine, fighting a grinding counteroffensive and trying to shore up longer-term support against Russia, this all looks a bit distressing. But the continuation of that ironclad Western unity was never guaranteed — and in some ways wasn’t a completely natural fit, especially in Europe, where politics, history, and economics sometimes made it difficult to neatly sort countries into pro-Russia or pro-West camps. This is still very far away from a rejection of Ukraine’s cause. Together, these countries see Russia as a threat, and largely believe their security and geopolitical interests align with helping Ukraine. But economic and energy pressures, political opportunism, and electoral politics are becoming harder to overcome, especially as Ukraine’s counteroffensive remains without a major breakthrough. At least for now, Western policies toward Ukraine look set to stay much more fraught. Slovakia is a “cold shower for Western unity” — but it’s also not time to freak out yet In Slovakia, Robert Fico’s Smer-SD party won the most votes (a little more than 20 percent), promising to focus more on cost-of-living issues like the economy and energy, rather than on the Ukraine conflict. Fico promised to end military aid — “not a single round” — to Ukraine. “We are prepared to help with the reconstruction of the state, but you know our opinion on arming Ukraine,” Fico told reporters after the election. He also said he would seek to start peace talks. Fico did not win outright, so he will need to form a coalition with other political parties if he seeks to lead, and that may ultimately force him to temper his pro-Russia, anti-EU stance. But the election result, said Teona Lavrelashvili, policy analyst at the European Policy Centre, “also indicates [the] starting of a cold shower when it comes to Western unity towards Ukraine.” Slovakia is an EU and NATO member, and its previous government had been a strong supporter of its geographical neighbor, Ukraine. It was one of the first countries to deliver fighter jets to Kyiv, and the country is hosting more than 100,000 Ukrainian refugees. Still, Slovaks have been divided on the war, including polls from earlier this year that show the public more or less evenly split on who is responsible for the war in Ukraine — Russia, or the West and Ukraine itself. In Slovakia, pro-Russian sentiment is not a new phenomenon; many in the public have traditionally held positive views of Moscow. “Most Slovaks most likely made their decisions based on the economic concerns, including [Fico’s] voters,” said Alena Kudzko, vice president for policy and programming at GLOBSEC, a think tank in Bratislava. “But definitely this convenient explanation that [Fico] offered — meaning that if only we can stop the war in Ukraine, the situation in Slovakia will get better, and by the way, that is better for Ukrainians; they will stop dying — that definitely fell on propitious grounds in Slovakia.” Fico has been viewed as a potential ally for Viktor Orban, the right-wing Hungarian leader who’s also sympathetic to Putin and has pushed back against the EU’s positions, including on Russia. European decision-making runs on consensus, so the more oppositional voices, the more complicated the politics will be. But as experts pointed out, Fico is, above all else, a pragmatist. He served as Slovakia’s prime minister from 2006 to 2010, and from 2012 to 2018, before being forced to resign amid a scandal over a murdered journalist. In the past, he balanced Slovakia’s relationships with the EU and Russia. That was a lot easier to do before Russia’s full-scale invasion, but it also means Fico is unlikely to go all in for Vladimir Putin. Slovakia, a country of about 5.5 million people, is deeply intertwined with the EU, and is dependent on the EU for its economy, its politics, and its security. “I think you can do slogans for billboards,” said Pavol Demeš, a visiting distinguished fellow at the German Marshall Fund and former Slovakian foreign ministry official. “But in real life, things are intertwined.” Welcome to the new normal for Ukraine aid Fico has promised no new military aid to Ukraine, but as experts point out, this doesn’t really mean much, since Slovakia pretty much delivered to Ukraine all it has to give. This is true for Poland, too, whose leaders said recently that Warsaw would cease sending weapons to Ukraine until it resolved a dispute over the transport of Ukrainian grain, which leaders say is hurting Polish farmers. These promises, however, are an easy rhetorical flex when trying to win over skeptical voters, or prove you’re looking out for constituents’ economic interests. The war in Ukraine did have economic fallout on the continent, and inflation and high energy prices are squeezing voters. That’s true elsewhere in Europe, where populist, far-right, and more pro-Russia parties are gaining ground, including in places like Germany. What is happening in Slovakia and Poland is likely a harbinger for more difficult politics to come. “The Ukraine fatigue will be visible across the board in Europe,” Kudzko said. “Again, it does not mean that it’s not overcomable, or that it encapsulates in the majority of the population. But of course, after years of economic duress — which, by the way, started all the way back during Covid — the population comes to a certain level of fatigue.” Looming around it all is what is happening in the United States. Washington has delivered more than $76 billion in assistance to Ukraine, including about $44 billion in security assistance to Kyiv since Russia’s full-scale invasion. As of September, the EU has committed about $88 billion in aid. Europe’s commitments to Ukraine now exceed those of the United States, especially for longer-term aid. But you wouldn’t know that if you listen to some Republicans. A growing contingent within the GOP is questioning Ukraine’s counteroffensive progress against Russia, and where all this US aid money is going. Congress averted a shutdown this weekend, passing a continuing resolution to continue funding the government — at least for the next 45 days, so lawmakers can once again engage in this showdown before the end of the year. But most notably, $6 billion in Ukraine aid was left out of this stopgap measure, leaving a question mark again as to whether the US will provide additional assistance for Ukraine this year. That $6 billion was already a scaled-back version from the administration’s request for about $24 billion, and the omission of the aid package comes after Ukrainian President Volodymyr Zelenskyy visited Washington and Capitol Hill in person to lobby for aid. President Joe Biden is urging Congress to pass this Ukraine aid, and it does have bipartisan support. But the political jockeying over Ukraine aid is a symptom of the US’s broader political dysfunction, which is probably not reassuring to Ukraine, or any of its European allies, either. And American support for Ukraine might get even more complicated. Ukraine skepticism is growing amid Republicans, including voters. The GOP frontrunner Donald Trump is chief among them. This strain in the GOP, then, is probably not going away, and may morph beyond battles over Ukraine funding into fundamentally questioning the US’s position on Ukraine. Questioning aid for Ukraine — especially the utility, and the escalatory potential of weapons assistance — is justified, here in the US and in Europe. But in the past year, Ukraine’s supporters could more easily make the case for it: Ukraine was winning, defying the odds even, and Russia’s military was in complete disarray. The Western strategy looked like it was working. This year has tested that. The war is not quite static, but Kyiv’s counteroffensive has failed to make substantial gains. While Ukraine has had success, selling a slow, expensive grind to the public is a lot harder than selling stunning military victories. And while governments tried to mitigate the pain the war created for their populations, that is harder to do the longer the fallout continues. This is especially true in Europe, with war on the continent. Europe’s support is robust, but when it comes to weapons, EU arsenals can’t make up the shortfall if America drops out. And if overall American assistance lags, it’s not clear the EU can make up that shortfall — or if they will be able to make the political case to the public that they should. That case is also getting harder to make in the US — to say nothing of the rest of the world, parts of which have been far more skeptical of the Western narratives around the Ukraine war. It comes at a precarious moment for Ukraine, which relies on this outside aid for assistance, and it is a boon for Vladimir Putin, who always has sought to exploit the cracks in Western unity and is likely looking to target US political divisions for Moscow’s benefit. These developments were not unpredicted — but what is, at least right now, is how they will influence the war still raging in Ukraine.

Preview: The US Supreme Court building seen in Washington, DC, on September 28, 2023. | Celal Gunes/Anadolu Agency via Getty Images The US Supreme Court convened for a new term on October 2 and will begin hearing a growing list of cases that could transform the scope of the federal government, voting rights, and the rights to free speech and public safety. Justices will consider the constitutionality of an entire federal agency, the Consumer Financial Protection Bureau; Florida and Texas laws that impose government-mandated editorial policies on social media sites; and whether people subject to domestic violence restraining orders have a right to own a gun. The Supreme Court is also likely to take up lower-court decisions about whether to ban a drug used in more than half of all abortions in the United States and whether political activists have a First Amendment right to organize a protest. And it has already announced that it will hear a major gerrymandering suit, with more cases potentially coming that could decide who prevails in future elections. We’ll track the biggest cases and explain what’s at stake here. Follow along.

Preview: Speaker of the House Kevin McCarthy (R-CA) celebrates with the gavel after being elected as speaker in the House Chamber on January 7, 2023 in Washington, DC. | Win McNamee/Getty Images Once again, the Supreme Court must deal with judicial arsonists on the Fifth Circuit. Two of the most partisan judges in the country handed down an order last week that is hard to explain as anything other than an attempt to preserve Republican control of the US House of Representatives. The voting rights plaintiffs in this case, known as In re: Jeff Landry, already filed an emergency application in the Supreme Court asking the justices to lift this order. It’s the latest effort by several of the most radical judges on the United States Court of Appeals for the Fifth Circuit, an increasingly rogue court dominated by Republican appointees, to manipulate the law in ways that benefit the Republican Party. The Supreme Court already plans to hear several cases this term where it is likely to reverse the Fifth Circuit, including a case where the Fifth Circuit declared an entire federal agency unconstitutional. The Fifth Circuit’s order, handed down by Judges Edith Jones and James Ho, concerns a long-running lawsuit alleging that Louisiana’s congressional maps are an illegal racial gerrymander. In June 2022, a federal trial court agreed with the plaintiffs in this case, then known as Robinson v. Ardoin, and concluded that “the appropriate remedy in this context is a remedial congressional redistricting plan that includes an additional majority-Black congressional district” — one which would likely elect a Democrat to Congress. Before that trial court’s order could take effect, however, the Supreme Court stepped in and temporarily blocked it — essentially putting the case on hold until the justices resolved a different racial gerrymandering suit, known as Allen v. Milligan, which challenged racially gerrymandered maps in Alabama. The Supreme Court ruled in June 2023 that Alabama’s maps are, indeed, illegal, and ordered that state to draw new maps that include a second Black congressional district. Shortly thereafter, the Supreme Court lifted its hold on the Robinson litigation. Then the trial judge in that case scheduled a new hearing for Tuesday, October 3, which would have likely ended in the trial judge ordering Louisiana to either redraw its maps or accept court-drawn maps. Now here’s the part where things take a weird turn: Last week, Jones and Ho abruptly ordered the trial judge to cancel the October 3 hearing. Their decision relies on a rarely used process known as a “writ of mandamus” which, under well-established legal rules, cannot even arguably be applied to this particular case. This decision most likely won’t prevent the courts from ordering Louisiana to draw new maps at some point in the future, but it could delay the case long enough to leave the current, GOP-friendly maps in place during the 2024 election cycle. Worse, Jones and Ho stepped in despite the fact that a different panel of three Fifth Circuit judges was already scheduled to hear the Robinson case on Friday, October 6 (this Friday hearing concerns whether the trial court’s June 2022 order was correctly decided). Notably, the Friday panel is significantly more moderate than Jones or Ho — it includes Judge Carolyn King, a Carter appointee, and Judge Leslie Southwick, a center-right Bush appointee who sometimes disagrees with the Fifth Circuit’s MAGA faction. (The third judge on this Friday panel, Jennifer Elrod, is a hardliner similar to Jones or Ho.) So Jones and Ho didn’t simply issue a legally inexplicable order sabotaging a court proceeding that was likely to cost the Republican Party a seat in the US House, they also did so despite the fact that a different, more moderate panel of their own Fifth Circuit colleagues already had jurisdiction over the same case. Writs of mandamus, briefly explained A “writ of mandamus” is a highly unusual court order that appellate courts may hand down to block truly egregious errors by a lower court. As the Supreme Court held in Will v. United States (1967), “only exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy.” Indeed, the Supreme Court has warned that a writ of mandamus may issue only if the party seeking it has “no other adequate means to attain the relief he desires,” and only if that party has a “clear and indisputable” right to such extraordinary relief. Nevertheless, Jones and Ho invoked mandamus to block one of the most routine orders that a trial judge may hand down: A decision scheduling a hearing in a long-running lawsuit that has been on that judge’s docket for more than a year. To justify this relief, the two MAGA judges essentially accused the trial judge of rushing this case — either by not giving the state legislature enough time to attempt to redraw its maps on its own, or by not giving the state’s lawyers enough time to prepare for the October 3 hearing. But neither of these allegations are plausible. The trial judge initially ruled in June 2022 that Louisiana’s maps are legally suspect and should be redrawn — so the state legislature has had nearly 16 months to redraw the maps if it wanted to do so. Similarly, while the Supreme Court’s decision to temporarily pause this case gave the state’s lawyers a brief reprieve from litigating it, the justices ended that pause in June 2023. So the state has known for more than three months that it needed to prepare for an eventual hearing in this case. Moreover, even if the trial judge had actually rushed this case, that still would not justify mandamus relief. Again, a writ of mandamus may only issue if the party seeking it has “no other adequate means to attain the relief” they seek. To the extent that Louisiana believes that the trial judge erred in her initial decision concluding that the maps should be redrawn, the state can present those arguments to the more moderate panel that will hear the Robinson case on Friday. Additionally, if the state disagrees with whatever the trial judge orders it to do after the October 3 hearing, it can also appeal that decision to the Fifth Circuit. There is, to put it simply, no justification whatsoever for Jones and Ho getting involved in this lawsuit. So what’s really at stake in this case? In the long term, Jones and Ho’s attempt to insert themselves into a lawsuit that they have no business hearing is unlikely to matter. If the Supreme Court invalidates their mandamus order, the October 3 hearing will proceed (possibly at a later date if the Court does not move very quickly), and the litigation will advance as it normally would through appeals courts. Alternatively, if the Supreme Court backs Jones and Ho’s attempt to sabotage the case, Louisiana’s appeal before the King/Southwick panel will still proceed, and the trial court will most likely be able to reschedule the October 3 hearing at some future date — though that may be weeks or months from now. It’s unclear how the Court will react to this case. Although Jones and Ho’s decision is clearly erroneous, the Supreme Court is dominated by Republican appointees. And some of the justices have expressed concerns that the Court is too willing to grant relief on its “shadow docket,” an expedited process that allows the Court to weigh into cases that have not received full briefing or oral argument. Jones and Ho’s order is currently before the justices on the shadow docket. In any event, while the long-term implications of this case are minimal, the potential consequences for the 2024 election are enormous. The Supreme Court has held that lower court judges should not hand down decisions enjoining a state’s election laws as an election draws close — and some justices have even suggested that lower courts may not issue such injunctions as much as nine months prior to an election. So the Robinson plaintiffs need to secure a court order imposing new maps on Louisiana soon, or there is a high risk that they will have to wait until after the 2024 election before those maps go into effect. If they do not get such a court order soon, a US House seat that should have gone to a Black Democrat will likely go to a white Republican, at least for two years. Jones and Ho, moreover, are two of the most unapologetically partisan judges in the entire federal judiciary. Jones is a former general counsel to the Texas Republican Party, and is known for a string of cruel decisions, such as one holding that a man could be executed despite the fact that his lawyer slept through much of his trial. Ho is a kind of judicial edgelord who makes Jones look measured and reasonable by comparison. The most likely explanation for their mandamus decision, in other words, is that Jones and Ho want the Republican Party to control the US House of Representatives. And they are willing to ignore well-established constraints on their own power in order to maximize the likelihood of a Republican Congress.

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Preview: Zack Wheeler struck out eight in a sensational effort, Jose Alvarado preserved the lead with a pivotal strikeout and the Philadelphia Phillies opened a resolute postseason push with a 4-1 win over the Miami Marlins in the opener of their NL Wild Card Series on Tuesday night.

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Preview: As Kevin McCarthy got pushed out of his job as House speaker, in part by colleagues who helped put him on the dais nine months ago, one of his top lieutenants stepped in to preside - at least temporarily.

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Preview: SACRAMENTO, CA — After being caught off guard by criticism of his selection of Laphonza Butler to replace the late Dianne Feinstein in Congress, California Governor Gavin Newsom defended his choice by saying Butler was the most qualified candidate among the .00001% of the population he was choosing from.

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Preview: WASHINGTON, D.C. — Members of the United States Congress have formally rebuked House Speaker Kevin McCarthy and Rep. Matt Gaetz for what they are calling "unnecessary infighting" that they claim is distracting from the important work of giving themselves raises.

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