ConservativeBlog.org

Featuring the Work and Ideas of the National
Center for Public Policy Research & Project 21

CONSERVATIVEBLOG.ORG

Featuring the Work and Ideas of the National Center for Public Policy Research & Project 21

“Regulatory Genocide” and Radical Environmentalist Complicity Explained

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“This guy is great!” exclaimed Chuck Woolery, the host of the Blunt Force Truth podcast (and former host of the game shows “Wheel of Fortune” and “Love Connection”).

Woolery was talking about National Center Senior Fellow Bonner Cohen, Ph.D. – a repeat guest on the program. Bonner had returned to discuss environmental activism and “regulatory genocide.”

“He’s just a very, very smart guy,” Woolery continued about Bonner. “He’s very professorial.  He’s very calm.  He knows his stuff. Boy, does he know it. He knows the people. He knows the history. He ties is all together. And you will enjoy him!”

“What a radio voice, too,” added co-host Mark Young. “It’s like hearing from God about what to do.”

Besides the Internet, Blunt Force Truth can be heard on 52 radio stations across the nation.

Woolery asked Bonner to come back on his show to talk about the pesticide DDT and the effect of radical, unscientific environmentalist extremism on public health. Woolery, who has a long history in the entertainment industry, noted how celebrity activists cite the ban on DDT use – a one-time common mosquito repellant – as an example of successful environmental activism.

Now, however, in places where mosquitos were under control, people are forced to survive with only netting as protection against the blood-sucking insects and the diseases they carry.

Bonner called DDT a “miracle chemical in its day” in how it irritated, repelled and killed malaria-carrying mosquitos. Its use was credited with nearly eradicating malaria across the globe, and won its inventor a Nobel Prize. But, he explained, environmental activist Rachel Carson used her book Silent Spring to launch a campaign against DDT based (and birth modern environmental radicalism) on the assertion it was a dire threat to wildlife. Despite a scientific investigation that found DDT use acceptable, the newly-created federal Environmental Protection Agency (EPA) banned its use in 1972.

This, Bonner said, had “absolutely catastrophic consequences” as malaria rebounded and killed many millions of people.

After the EPA started the ball rolling against DDT use, the U.N.’s World Health Organization followed suit. This “copycat effect” led to other enforcement agencies to climb on the bandwagon, “allowing a dread disease that had all but disappeared to come back with the very predictable consequences that tens of millions of people would lose their lives…”

Bonner noted:

If you’re looking for the moral content of environmentalism, look no further than DDT. Because its first big success led to the premature deaths of tens of millions of people. Now, these were people who – in a sense – out of sight and out of mind. They were primarily in Sub-Saharan Africa, but they were also in Southeastern Asia – far away from Hollywood Boulevard, far away from the streets of Manhattan.

Click here to listen to Bonner’s Blunt Force Truth interview in its entirety.

Hogberg in American Spectator: Tax Reform Should Repeal Obamacare’s Individual Mandate

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Tax reform bills may have passed in the House and Senate, but there’s still a lot of work to be done before anything is sent to the White House. Now, the bills are expected to go to a conference committee where members from both chambers will address the differences into a package upon which both chambers can agree.

One major issue on their agenda will be the repeal of Obamacare’s individual mandate, which is part of the bill passed by the Senate early Saturday morning.

In a commentary published by the American Spectator, National Center Adjunct Fellow David Hogberg, Ph.D., a health care expert and author of the book Medicare’s Victims: How the U.S. Government’s Largest Health Care Program Harms Patients and Impairs Physicians, wrote that “there is no reason why Congress shouldn’t repeal it.” He called the individual mandate “a gross violation of individual liberty” that “is not making insurance more affordable.”

David Hogberg

In his commentary, David pointed out:

A penalty on people who do not purchase health insurance, the individual mandate cost $695 or 2.5 percent of income (whichever is greater) for noncompliance in tax year 2017. Supporters of Obamacare claim the Constitution’s Commerce Clause gives Congress the power to force people to buy health insurance.  While the Founding Fathers did give government the power to regulate commerce, nowhere did they say it could be used to require individuals to purchase insurance.

There is no basis for the individual mandate in constitutional law either. As U.S. District Court Judge Henry Hudson wrote in 2010, “A thorough survey of pertinent Constitutional case law has yielded no reported decisions from any appellate courts extending the Commerce Clause or the General Welfare Clause to encompass regulation of a person’s decision not to purchase a product.” Supreme Court Chief Justice John Roberts erred greatly when he sided with the Court’s liberals to let the individual mandate stand.

Congress now has the opportunity to correct the Court’s error and restore liberty to every American.

He added:

The problem with that argument is that the exchanges are already not working with the individual mandate in place. It never forced enough young and healthy people to join the exchanges. As a result, many health insurance companies incurred heavy losses.

Citing several different sources, David chronicled the harbingers of Obamacare’s failure since the health care exchanges began in 2014:

  • The lowest-cost plan for a 27-year-old rose 77 percent in cost since 2014. The second lowest-cost silver plan rose 88 percent.
  • Exchanges had over 250 insurance companies participating in 2014. In 2018, it will fall over one-third to under 170.
  • In 2014, 76 percent of exchange enrollees had at least three insurers to choose from, with only six percent having no choice. With insurers leaving the exchanges, the percentage of enrollees with only one option will rise to 26 percent in 2018, while those with three or more insurers will fall to 48 percent.

Congressional leaders are hoping to come to an agreement on a tax reform plan for President Trump to sign within the next seven days.

Project 21’s Cooper Likens Race-Obsessed Royal Wedding Hysteria to Segregation Era

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On the Fox News Channel program “The Ingraham Angle,” Project 21 Co-Chairman Horace Cooper criticized the “weird fixation” liebrals have with the biracial ethnicity of actress Meghan Markle – the American actress engaged to be married to Britain’s Price Harry.

“I can’t understand a racial fixation,” Horace noted about mostly social media comments related to the just-announced royal wedding. “And that’s just what we’re seeing… This is a throwback to the same mindset that drove segregation by saying the primary thing about a person is their race.”

Host Laura Ingraham pointed out that Markle will be the second black royal in Europe – following Princess Angela of Liechtenstein, who joined that royal family in 2000.  Ingraham suggested bigger issues that might have led the House of Windsor to try to derail any wedding include Markle’s previous marriage and her Catholic upbringing.

While SiriusXM host Clay Cane, a liberal, repeatedly suggested the racial aspect of the wedding is an important issue for the British and downplayed suggestions of a post-racial mindset in America, Horace said “it’s not relevant.  And it’s actually pretty sad and pitiful.”

Ascribing the current obsession as an unfortunate throwback to a 1950s mentality that fixated on one’s race, Horace charged “progressives brought it back.”

Watch it below.

One More Reason to Dislike Lena Dunham

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Millennial auteur Lena Dunham is having a rough time maintaining her relevance these days.  I’m glad this blog helped point out her hypocrisy and help in starting that decline years ago.

With her show off the air and having gone all-in for Clinton during the last election, it seems Dunham is grasping for attention. She may have now finally worn out her pop culture welcome.

In a New York Post column, “Good Riddance to Lena Dunham,” Maureen Callahan writes: “She speaks, usually unbidden, with complete moral and philosophical authority – until she’s called out online, at which point she furiously and pathetically backpedals.”

Callahan adds:

[Dunham is] a total hypocrite who claims we’re the ones who have issues with her body and slovenly dress, yet she strains to appear sexy and glamorous on the red carpet. She wants desperately to be liked while claiming she doesn’t care if we like her. She’s a narcissist who possesses no intellectual rigor, no belief system, no relationship with the truth.

Her most recent misstep is her defense of a friend who wrote for her old show “Girls” who has been accused of raping a 17-year-old girl in 2012. The hypocrisy of Dunham’s “confident” assertion that it was one of a few “misreported” sexual assault claims came just months after she confidently tweeted that rape is something “women don’t lie about.”

This is not a single career-ending moment. Her credibility as a voice for young America began eroding just about the moment she stepped into the limelight. One just needed to look closely for what the mainstream media didn’t want to report about her. Callahan noted that Dunham:

  • Made her own false accusations about a sexual assault;
  • Engaged in activities with her sister that might make Roy Moore’s accusers blush;
  • Posed provocatively for a known misogynistic fashion photographer and
  • Made a high-profile rescue dog adoption that she quietly gave up on later.

But Callahan did not focus on Dunham’s political activity, of which her missteps in voting were caught by this blog in 2013.

Dunham, who proudly equated voting for Barack Obama in 2008 with losing her virginity, technically voted at the wrong polling place in 2012. While she chronicled her harrowing effort to get back to New York City to vote, she went to her old polling place in Manhattan rather than the Brooklyn location she was assigned to at that time. The only thing that preserved her vote was that provisional voting was allowed on an emergency basis due to the chaos caused be Superstorm Sandy. But that saving grace did not seem to be on her mind back then – just that we needed to regard her as a hero for flying cross-country in a frenzy to vote when she could have planned in advance and voted absentee.

Citing Dunham’s Animal Farm-style approach to rape accusations, Callahan wrote: “Finally, the star and creator of ‘Girls’ has been exposed as the empty vessel she is.” We at the National Center saw (and exposed) quite enough to substantiate that assertion nearly five years ago!

 

Greens Oppose Conflict-Free EPA

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Despite all the demands for sound science, green activists are seeing red over EPA Administrator Scott Pruitt’s plans to make the federal environmental bureaucracy more accountable as well as free from unnecessary and unproductive conflicts of interest.

In a commentary published in The Hill, one of the must-read publications on Capitol Hill, Jeff Stier, director of the National Center’s Risk Analysis Division, reported that activists worried about their ox being gored “are whipping the media and politicians into frenzies” over new Trump appointees and a Pruitt initiative to distance grantees from potential influence over the grant-making process.

Jeff noted the anti-Pruitt campaign “undermines not only good policy-making but the environment where healthy democracy thrives.”

Pruitt announced the changes to its advisory structure in late October. To “improve the internal management” of the agency and provide “better, more effective government,” advisory committees serving the EPA will no longer be comprised of members getting federal money. Previously, there was the potential for conflicts of interest when those advising the government could have also benefited financially from the policies and programs they recommended. The panels are also now compelled to be more diverse in the backgrounds of those serving, their geographic diversity and have a more frequent rotation of membership.

According to the EPA, members of the EPA’s Scientific Advisory Board, Clean Air Scientific Advisory Committee and Board of Scientific Counselors received at least $77 million in taxpayer funds while serving on those groups.

The process will affect approximately 65 spots among the groups. Pruitt said: “Whatever science comes out of EPA shouldn’t be political science. From this day forward, EPA advisory committee members will be financially independent from the agency.”

Jeff noted the merit for such reform, and how initial steps by the Trump Administration show this swamp-draining is much less onerous than the green gadflies predicted:

Because the boards influence agency priorities, including millions of dollars in grants, the conflict of simultaneously serving on a board and being a grant recipient is obvious. But rather than applauding the move, those who have been incensed by more tenuous conflicts are seething that Pruitt is cracking down.

The move is “the equivalent of burning books that you don’t like,” according to Elena Craft, a senior scientist at the Environmental Defense Fund.

Reactions like Craft’s are now standard fare from activists and mainstream media alike. But the allegations don’t withstand scrutiny. On November 3, Pruitt reappointed Craft’s fellow fund senior scientist Jennifer McPartland to a coveted seat on the Board of Scientific Advisors. Book-burners would be appalled by the sloppiness…

[A]ctivists’ dogmatic approach to environmental policy, coupled with constant conflict complaints, suggests they deny the notion that there’s ever any validity to dissenting views.

Rather than having to inform the public with complicated science policy arguments, strident groups score points for taking the low-road.

Jeff also noted the campaigns being waged against key Trump appointees, including Michael Dourson as assistant administrator and Nancy Beck as deputy assistant administrator of the EPA’s Office of Chemical Safety and Pollution Prevention.  He wrote:

There’s good reason for big-government environmental activists to be threatened by the appointment of scientists like Beck and Dourson, as well as the removal of actually conflicted EPA advisory board members. These leading regulatory scientists with real-world experience are actually effective critics of the EPA’s flawed and even dangerous regulatory over-reach.

While key initiatives are stymied in Congress, the Trump Administration seems to be much more effective these days in helping to transform the bureaucracy. These appointments and administrative changes to reform the EPA are just the sort of things that may define this presidency, and affect government operations for many years to come.

Gray Lady Apologizes for Neo-Nazi Profile, But Not Hateful Commentary Criticized by Project 21

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In a recent Daily Caller commentary, Project 21 member Ted Hayes called out the New York Times and Cardozo Law Professor Ekow N. Yankah for a hateful piece in the Times in which the professor explained why he tells his black children they cannot be real friends with white people.

“Our nation is better than this man thinks,” said Ted, a community activist living in Los Angeles. “It’s foolish to think racism no longer exists. It does. But it is not who we are as a people. We have come so far, and those who deny our progress prolong the lingering remnants of racial animosity.”

In his essay, which is particularly critical of President Trump’s supporters, Yankah suggested, “History has provided little reason for people of color to trust white people in this way, and these recent months have put in the starkest relief the contempt with which the country measures the value of racial minorities.”

In response, Ted explained:

Playing the race card, as Yankah did in the New York Times (consciously or not), is a very dangerous practice. It fosters strife, hatred, and division.

When he accuses all white citizens of racism, Yankah violates the warning of Jesus Christ not to offend children by wanting to teach his own children and others to enter a path of hatred. When he spoke of “the little boys I love” and that “I first have to keep my boys safe…,” why does he not seem willing to warn them about the hypocritical psychosis of Black Lives Matter activists?

It seems Yankah won’t acknowledge that, in many areas under the political dominance of the Trump resistance, his beloved sons are more at risk from fellow black youth than from police officers or white nationalists who fill leftist rhetoric.

Yankah’s use of the term “people of color” is also racist because it justifies non-whites by their skin color and not their merit. Conversely, whites become evil because they are white. Yet it’s the allegedly untrustworthy white people who published his words and place him on the front lines attacking President Trump. It’s this acrimony that prevents the president from assisting black citizens as he promised and getting any credit for doing so.

Ted added:

Yankah’s sons are empowered by the 14th Amendment. Despite his credentials as a law professor, his rhetoric ignores authority granted to black citizens by white lawmakers, in the wake of the nation’s civil war, who fought to abolish chattel slavery. He also ignores the 2005 U.S. Senate apology for lynchings and the 2008 congressional resolution apologizing for slavery and Jim Crowism.

That the Times has not had second thoughts about Yankah’s piece is surprising considering that the paper has since essentially offered an apology for running an article about a neo-Nazi that some readers felt helped “normalize” a radical. Times editor Marc Lacey stood by the notion of “the need to shed more light, not less, on the most extreme corners of American life and the people who inhabit them.” Yet he nonetheless expressed regret for showing that a hater can also eat at Panera, play Nintendo games and watch “Seinfeld” (not that there’s anything wrong with that).

What seems to be lost on the Times in all of this is that white nationalist Ted Hovater, a blue-collar welder, is part of society and may someday find error in his ways because of his interactions with others. Yankah, a professor at an elite school, is urging racial separation in a manner from which there seems to be no escape.  That poses a much dimmer future for American race relations. “Due to his distrust of whites,” Ted surmises, “[Yankah] ignores their good faith, bold actions and necessary role in forging a truly equal America. I pray his sons will be more trusting.”

President of 107th-Ranked Black College Criticizes Project 21 for Putting National Anthem in Context… Literally

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Taking issue with a recent press release from Project 21 and a larger historical debate, Simmons College of Kentucky President Rev. Dr. Kevin W. Cosby insisted that the “Star-Spangled Banner” lyrics should apparently be defined literally and by modern standards.

Are you sure you want to be so literal, President Cosby?

There is no consensus as to what exactly Francis Scott Key meant in the little-known (until now) third verse of our National Anthem when he wrote: “No refuge could save the hireling and slave.”

But the literal interpretation – that Key was referring to chattel slavery – is being used by those who want to upend American history and tradition to argue that it should no longer be our national song.

In response to a tweet about Project 21 Co-Chairman Horace Cooper being scheduled to discuss the issue on Bill Martinez’s nationally syndicated talk show, Cosby tweeted that people can “safely assume” Key’s words meant chattel slavery because Key was a slave owner and white supremacist.

In the release, Cooper said: “Claiming that the lines from a song written in 1814 were intended to malign blacks reveals more about either their ignorance of history or their willingness to outright fabricate claims against our country.”

Key did own slaves, but it’s hard to justify he was a white supremacist outside of using the same specious logic ESPN’s Jemele Hill seemed to use when she called President Trump one.

In 2005, Robert Devaney, the executive director of the Francis Scott Key Foundation, wrote in the Washington Post that “to view Key, author of our national anthem, as a white supremacist misses the point of historical context.”  More recently, J. Mark Powell, a history blogger, pointed out Key’s complexities in a piece he wrote for the Washington Examiner:

Then there was Key’s highly-complicated relationship with slavery.  He was a slave owner who also opposed the practice.  He personally owned six slaves.  While he eventually set them all free, no effort was made to do likewise for the large number of slaves his wife inherited and who worked the farm that provided a big part of the family’s income.  On several occasions, Key represented slaves trying to win their freedom in court, for free.  He was also actively involved in the American Colonialization Society, which helped found the colony of Liberia in Africa.

Yet Key was also bitterly opposed to the abolitionist movement and used his position as U.S. Attorney to challenge it.  Right up until this death in 1843 at age 63, he strongly supported the colonization of former slaves in Africa and resisted the abolition of slavery.  Try explaining that contradiction!

Of course, the easy way – the one apparently being used by Cosby, is that Key is a plain and simple, unrepentant racist.

Francis Scott Key 3c 1948 issue U.S. stamp

Then there’s the matter of the actual terms “hireling” and “slave” that appear in the song.  While Key never explained how that particular line came about, there are those who argue that the line refers to Hessian soldiers – Germans – who had been employed by the British:

Our revolutionaries referred to them contemptuously as slaves, because they had no choice in the matter of service, and hirelings because their services could be sold to the highest bidder.  Hessian soldiers had largely been press-ganged into service, and deserters were routinely and summarily executed…

A generation later, when the British once again tried to reintegrate their former colonies into their empire, it was a common belief among American patriots of 1812 that this latest levy of British soldiers were also bought and paid for, involuntarily serving mercenaries – hence, as the song said, men who were hireling and slave.

And it has been reported that noted no-nonsense abolitionist Frederick Douglass was quite fond of the song, despite that allegedly line about chattel slavery in the third verse.

What can we glean from all of this?  You shouldn’t take things literally or out of context.  Especially when you are talking about something written over a century ago.

After all, it wasn’t but a generation ago that you could say to someone at your office that “you’re acting quite gay today” and be thanked rather than hauled down to human resources.  What was then a compliment about your attitude is now likely to be considered a bullying slur or insult and possibly grounds for termination or the dissolution of a friendship.  Putting things in context is also why people who hold traditional values can sing about donning gay apparel while decking the halls without believing they are endorsing the LGBT agenda.

What about those insensitive folk at the National Association for the Advancement of Colored People?  What kind of person uses the term “colored people” these days?  Outside of the civil rights lobbyists at the NAACP, “Good Morning America” host Amy Robach found out the consequences last year when she used it in a news report and had to profusely apologize for using a “slur.”  As was pointed out by an expert, “people of color” is much preferred over “colored people” these days.

And then there is the issue of ambiguity, and why Cosby shouldn’t want to be so literal.

When you go to the Simmons College of Kentucky website, it proudly states that the school is “the nation’s 107th Historically Black College.”  That’s… it.

You go to the “fast facts” about the school, and it further explains Simmons was “Designated as the 107th Historically Black College (HBCU) by the U.S. Department of Education on April 13, 2015 (unprecedented accomplishment).”  OK…

For what?  They’re on a list.  But there’s no context.  Are they 107th among HBCUs?  That doesn’t sound good.  In fact, it sounds pretty bad.  I’d rather go to the HBCU designated in the top ten.  KnowhatImean?

Project 21 was chided in a tweet by the president of the 107th-ranked black college in America.  Literally!

Don’t like that, President Cosby?  Well, there are probably a lot of proponents of Francis Scott Key who bristle over him being called a white supremacist, and more who don’t consider our National Anthem a pro-slavery song.  Literally.

Project 21 Co-Chair’s Comments on Guns in Church to Protect Parishioners in Daily Caller, Wall Street Journal and OC Register

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Project 21 Co-Chairman Council Nedd II, also an Anglican bishop and Pennsylvania state constable, is reconsidering his personal decision not to carry his gun during Sunday services.

As a constable, Council has provided protection to other religious institutions.  He never felt the need to be armed in his own sacred space until the attack on the First Baptist Church in Sutherland Springs, Texas last week.  A combination of that, growing intolerance toward the practice of faith in general and personal threats toward him as a law enforcement officer is leadig him to change his mind about packing in the pulpit.

Council discusses his reasoning in a new commentary from Project 21 that was just published by The Daily Caller. In “An Anglican Bishop Explains Why He May Soon Be Packing Heat at His Pennsylvania Pulpit,” he writes:

I’ve always seen the job of a bishop as that of an overseer.  That’s why a bishop carries an ornate staff called a crozier.  Like a shepherd, it’s a bishop’s duty to collect the flock and guide it clear of the wolves…

Maybe the crozier is no longer enough…

While liberal politicians and activists immediately took to social media to call for more restrictions on guns, it’s obvious that they fail to understand how a gun can also serve as a tool of salvation.

A pistol in the pulpit may sound extreme, but — when people of faith increasingly appear to be targets of armed evil — a good shepherd must do what he must do to protect the flock from the wolves. From the perspective of a bishop and a cop, people must be protected.  This includes in sacred spaces.

Click here to read the entire commentary at The Daily Caller.

Click here to see the press release about Council’s commentary that led to these interviews in the Wall Street Journal and Orange County Register.

Crusade Against Cross Honoring Vets Could Go to Supreme Court

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An appeals court ruling against a war memorial cross could lead to the next big religious liberties case before the U.S. Supreme Court.

Bishop Council Nedd II, a co-chairman of the National Center’s Project 21 black leadership network says:

The Bladensburg Peace Cross should be allowed to stand where it has stood since it was erected in 1925.

This growing trend in America to rewrite history has gone too far already, and I fear where this is headed.  It is not in the American tradition to destroy, deface and demolish monuments.  That is something that happens in dictatorial countries when leaders are toppled.

The U.S. Court of Appeals for the 4th Circuit, in a divided ruling, said the 40-foot Latin cross that stands at a suburban Maryland intersection “excessively entangles” the government with religion and is thus unconstitutional.  It overturned a lower court’s ruling said the nearly century-old landmark – inscribed with the words “endurance,” “valor,” “courage” and “devotion” – was not primarily religious and almost always used in a manner that marked government rather than religious observances.

Yet the majority of judges on the 4th Circuit determined that the Bladensburg Cross – dedicated to local men who died in the First World War – unlawfully represents “the core symbol of Christianity” and is “prominently displayed in the center of on one of the busiest intersections in Prince George’s County, Maryland, and maintained with thousands of dollars in government funds.”  Chief Judge Roger L. Gregory, in his dissent, countered: “In the majority’s view, the memorial is unconstitutional based predominantly on the size of the cross, and neither its secular features nor history could overcome the presumption.  But such a conclusion is contrary to our constitutional directive.”

Maryland Governor Larry Hogan called the decision “outrageous” and said “all options, legal or otherwise, are being considered” to keep the cross in place.  That could include an appeal to the U.S. Supreme Court.

The American Humanist Association (AHA) originally filed the lawsuit against the Peace Cross.  AHA Senior Counsel Monica Miller wrote in 2014 that the group was seeking “to eliminate this stigmatic message [of the cross] to non-adherents of Christianity.  It urges the government to erect an inclusive monument that will honor all fallen soldiers, regardless of their faith.”  Jeremy Dys, an attorney for the First Liberty Institute, the group that defended the Peace Cross, remarked after the ruling: “I think it’s important that we honor veterans the way that veterans choose to honor themselves.”

The ruling, if allowed to stand, could have an impact on other monuments in places such as national cemeteries.  It could also help to reshape American society, where memorials such as the Bladensburg Peace Cross have stood without offending residents for generations.  Nedd, who grew up in the area where the cross stands, has fond memories of it and concerns about what the ruling portends for the future:

What’s next?  Will there be a movement to tear faces off Mount Rushmore, or rename national parks?

The Peace Cross is different.  It honors our veterans.  And it means a lot of good things to a lot of people.  For me, it was an integral part of my childhood.  It was always a special day if my family found ourselves in that part of town and my father would take us to see the “big cross.”

What is lost on the secularist and the revisionist historians is that – like it or not – America was founded as a Christian nation.  We should not apologize for that, or hide from that fact.

STRONGER Protections May Be Answer to Drug Patent Trolls

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When Congress addressed patent reform earlier this decade, their attempt to stop “patent trolls” culminated in a law that the National Center’s Jeff Stier says ended up being “a solution in search of a problem.”  As a result, there are now patents at an increased risk of being trolled unless Congress revisits and fixes the problem.

Jeff Stier

Jeff Stier

In a new commentary published by The Hill, “Medical Innovation Shouldn’t Cause Pioneers to Jump Through Hoops,” Stier – the director of the National Center’s Risk Analysis Division – and Hoover Institution Fellow Henry I. Miller point out that efforts to protect our nation’s inventors turned the patent process into a “legal chess game” where some very dubious moves are now being made.

An important issue, patent protection goes back to the America’s founding when it was included in the Constitution.

 

Patent reform was passed in 2011 to stop business interests from using their purchase of similar patents to target and wage legal warfare on more successful innovators.  The America Invents Act (AIA) ended up being written in a way that promotes trolling when it comes to patents involving prescription drugs.  As Stier and Miller note:

The AIA was intended to stymie patent trolls that bought up patents they never intended to use.  Hedge funds, individuals and companies purchased patents not with the intent to protect their manufacture of innovative products, but to sue innovators who had their own, similar patents.  Stopping this practice was a laudable goal that made sense for technology like software code and cell phone hardware.

However, it was never intended to be applied to pharmaceutical innovation, where the so-called “Hatch-Waxman” law, which created a pathway for generic drugs, had already effectively balanced the interests of brand-name and generic drug manufacturers.

How bad have things gotten?  One drug maker is trying to protect a patent in what might be called a sweetheart deal so it can avoid the pitfalls of the AIA.  Allergan, the company that created the dry-eye drug Restasis, transferred its patents related to the drug to a group of Native Americans rather than face the challenge created by the AIA:

In a move that could bring tears to the eyes of even the most jaded lawyers, Allergan last month transferred the Restasis patents to New York’s Saint Regis Mohawk Tribe, whose sovereign immunity shields it from patent litigation.  The tribe was remunerated up-front and with the prospect of future royalties, and promptly leased the patents back to Allergan.

If the tactic is successful, analysts expect pharmaceutical giants Eli Lilly and Pfizer to follow suit.

Allergan recently lost a court challenge to protect its Restasis patents, so this tactic is more important than ever for them without a change to the current interpretation of the AIA.  As Stier and Miller wrote:

The key problem is that the 2011 law which sought to make it easier to challenge dubious patents also made it easier to challenge valid ones.  Ironically, in an effort to prevent trolling, the 2011 law created a group of reverse-patent trolls: generic drug makers seeking to undermine legitimate patents already subject to adjudication by the courts.

Is there a solution?  Stier and Miller point to the Support Technology and Research for Our Nation’s Growth and Economic Resilience (STRONGER) Act that’s currently under consideration in the U.S. Senate.  It would require challengers to provide “clear and convincing evidence” of their case, restoring the traditional burden of proof standard upset by the AIA when it came to the relationship between innovative drug makers and those manufacturing generic alternatives.

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